The VA Issues Class Deviation: Important Changes Governing Limitations on Subcontracting Effective Immediately

On December 23, 2020, the Department of Veterans Affairs (VA) issued a class deviation to implement the Small Business Administration’s (SBA) formulation of the limitations on subcontracting (LOS) and nonmanufacturer rule (NMR) for all VA contracts awarded to small businesses or under SBA socioeconomic programs. SBA’s formulation is outlined in its May 31, 2016, final rule . The VA’s class deviation follows the release of a Civilian Agency Acquisition Council (CAAC) letter , which authorized civilian agencies to issue such class deviations to promote regulatory . . . Read More

SBA to Publish Interim Final Rule on Extension of 8(a) Participation

Both the Appropriations Act and the 2021 National Defense Authorization Act permit businesses who were participants in the 8(a) Business Development program on or before September 9, 2020, to extend their participation in the program for a period of one year. Accordingly, the U.S. Small Business Administration (SBA) is expected to publish a final rule incorporating this mandate tomorrow, January 13, 2021. Below are key takeaways for government contractors seeking to extend participation in the 8(a) program. Eligibility Requirements Through . . . Read More

SBA Provides Direction for PPP Round Deux Loans and Second Draw Loans

On January 6, 2021, the Small Business Administration (SBA) issued its first round of formal guidance for the new Paycheck Protection Program (PPP) and the second-draw PPP loans, which we first discussed here . SBA also gave some indication of plans for the second round of the PPP. SBA’s guidance can be found here for the next phase of PPP and here for the second-draw program. Below are key updates for businesses that need access to this important source of relief funding. As . . . Read More

Third-Party Data-Rights Restrictions: Non-Conforming Legend? Not a Problem

In federal contracting, the laws and regulations surrounding data rights and intellectual property (IP) rights can instill fear in many companies, especially small businesses. A misstep could have you assigning unlimited rights or even ownership of your IP to the federal government. For a broader explanation of some of the challenges government contractors face, please check out our earlier blogs here and here . Generally, to ensure protection of its rights vis-à-vis the federal government, a contractor must include an applicable legend . . . Read More

To Offer or Not to Offer FFCRA Leave?

Earlier this month we reported that under the latest stimulus bill, the Families First Coronavirus Response Act (FFCRA) mandatory leave requirements expire on December 31, 2020. However, the bill, which was signed into law on December 27, does include the option for employers to voluntarily continue to provide employees with FFCRA leave – and in turn to receive a tax credit for such qualified leave – through March 31, 2021. Companies should note that while the deadline to take advantage . . . Read More

PPP Round Deux Update

On December 27, 2020, the President signed the Consolidated Appropriations Act of 2021, which includes the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the “Act”). The Act allows a “Second Draw” of Paycheck Protection Program (“PPP”) loans up to $2 million, expands the permissible uses for which such loans may be used, simplifies the loan forgiveness application for some borrowers, and makes other related changes to the PPP program. While 2021 may bring relief in the form . . . Read More

GAO Holds that SAM Registration Pertains to a Bidder’s Responsibility, Not Responsiveness of a Bid

On December 16, 2020, the Government Accountability Office (GAO) sustained a protest by a contractor that was eliminated from a competition because its System for Award Management (SAM) registration had expired. Holding that registration in SAM pertains to a bidder’s responsibility, not the responsiveness of the bid, the GAO directed the agency to afford the bidder an opportunity to cure the matter after bid opening and before the award rather than finding the bidder to be ineligible for award. This . . . Read More

PPP Round Deux: Who Qualifies, For How Much, and Forgiveness Changes

While the President vetoed the 2021 NDAA—and has put COVID relief into question—he has not yet acted on the Consolidated Appropriations Act, 2021, which contained the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the Act) dealing with the second round of PPP Loans.  So, while the Act may be in jeopardy of a veto also, it has not yet occurred and, regardless, it is likely many of the PPP Loan provisions contained in the Act will be . . . Read More

Government Contractors: 5 Takeaways from DOJ’s Remarks on First Year of Procurement Collusion Strike Force

In November 2019, the U.S. Department of Justice (DOJ) announced the creation of the Procurement Collusion Strike Force (PCSF), an interagency partnership aimed at preventing and prosecuting anticompetitive behaviors in government procurements. The dual purposes of the PCSF are to (1) deter and prevent anticompetitive conduct in the procurement process through outreach and training to government and industry procurement personnel and (2) jointly investigate and prosecute procurement collusion and fraud by leveraging partnerships in the law enforcement and inspector general . . . Read More

COFC Confirms Rule of Two Analysis Applies Before Agency Decides to Utilize a Multiple-Award Vehicle

On November 30, 2020, the U.S. Court of Federal Claims (COFC) issued a decision that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions. [1] The central question surrounding the case was whether the U.S. Army could cancel a Federal Acquisition Regulation (FAR) Part 8 service-disabled veteran-owned small business (SDVOSB) set-aside procurement under the General Services Administration’s Federal Supply Schedule (FSS) and move the requirement to a multiple-award indefinite-delivery, indefinite-quantity (MAIDIQ) contract vehicle that . . . Read More