RECENT SMALL BUSINESS REGULATIONS AND LEGISLATION

Transcription

1 RECENT SMALL BUSINESS REGULATIONS AND LEGISLATION Richard B. Oliver, Esq. McKenna Long & Aldridge LLP January 8, 2014

2 I. Small Business Jobs Act of 2010 Final Regulations II. FY 2013 NDAA Small Business Provisions III. FY 2014 NDAA Small Business Provisions IV. SBA Regulatory Agenda 2

3 I. Small Business Jobs Act of 2010 Final Regulations Small Business Subcontracting Protections Small Business Certifications Multiple Award Contracts and Contract Bundling 3

4 I. Small Business Jobs Act of 2010 Final Regulations (cont d) Small Business Subcontracting Protections 78 Fed. Reg , July 16, 2013 Purpose Protect SB subcontract workshare and payments Applies to covered contracts per FAR Protects workshare for subcontractor used in proposal Protects 90 day timely payment Prime contractor reporting requirements Contracting officer may use for past performance evaluations Final rule became effective on August 15,

5 I. Small Business Jobs Act of 2010 Final Regulations (cont d) Small Business Certifications 78 Fed. Reg , June 28, 2013 Purpose Prevent large businesses from performing set-aside SB contracts Presumption of loss is value received Broad definition of affirmative, willful and intentional certification Concerns must certify annually Final rule was effective on August 27,

6 I. Small Business Jobs Act of 2010 Final Regulations (cont d) Multiple Award Contracts and Contract Bundling 78 Fed. Reg , October 2, 2013 Purpose encourage use of SB in MATOCs and discourage bundling Requires contracting officer consideration of small business set-asides and reserves for multiple award contracts Allows use of multiple NAICS codes for MATOCs Bundling requirements No consolidation above $2M unless justified by a senior procurement executive or chief acquisition officer Identifies negative impacts on SB Justify consolidation by showing benefits substantially exceed alternatives Final rule effective on December 31,

7 II. SB Acquisition Provisions in FY 2013 National Defense Authorization Act January 2, 2013 Authorizes Small Business Mentor/Protégé Program Changes Calculation for Subcontracting Limits Removes Dollar Limits for WOSBC Set-Asides Creates Small Business Ombudsman at DCAA 7

8 II. SB Acquisition Provisions in FY 2013 NDAA (cont d) Small Business Mentor/Protégé Program Applies to all small businesses Program to be identical to 8(a) mentor/protégé program Great advantages to program Assistance without affiliation Multiple bids as joint venture Mentor may own 40% of protégé SBA regulations were due in October

9 II. SB Acquisition Provisions in FY 2013 NDAA (cont d) NDAA Changes Calculation of Subcontracting Limits Purpose Current rule 50 percent of incurred labor costs Problem with applying current rule New rule subcontracts not exceed 50 percent of contract price SBA to develop construction contract subcontracting limits after public comment and formal rulemaking 9

10 II. SB Acquisition Provisions in FY 2013 NDAA (cont d) NDAA Removes Dollar Limits for Women-Owned SBC WOSBC set-asides allowed for 83 NAICS codes Previous law permitted set-asides only for contracts < $6.5 million for manufacturing and < $4.0 million for other contracts NDAA deletes these dollar limitations SBA issued interim final rule on May 7,

11 II. SB Acquisition Provisions in FY 2013 NDAA (cont d) NDAA Creates Small Business Ombudsman at DCAA Advise on SB policy issues Primary point of contact and source of information for SB Collect and monitor data re: DCAA timeliness and responsiveness No involvement in ongoing-dcaa audits 11

12 III. SB Acquisition Provisions in FY 2014 National Defense Authorization Act December 26, 2013 Advancing SB Growth Sec Agency SB Contracting Remediation Plan Sec Credit For Certain SB Subcontractors Sec

13 III. SB Acquisition Provisions in FY 2014 NDAA (cont d) Advancing SB Growth Sec Advancing Small Business Concept DoD contract clause Included in SB contracts that exceed applicable size standard or, if employee standard, $70 million Contractor acknowledges that contract may cause it to exceed size standard Encourages contractor to develop capabilities and characteristics to be competitive for full and open competition Availability of procurement technical assistance 13

14 III. SB Acquisition Provisions in FY 2014 NDAA (cont d) Agency SB Contracting Remediation Plan Sec Amends Section 15 of Small Business Act, 15 U.S.C. 644 Requires agencies that fail to meet their small business contracting goals to prepare a remediation plan, including Proposed new practices to meet its goals Analysis of factors leading to failure to meet goals 14

15 III. SB Acquisition Provisions in FY 2014 NDAA (cont d) Credit For Certain SB Subcontractors Sec For all primes contractors and subcontractors required to maintain SB subcontracting plans review and approve subcontracting plans of subcontractors monitor subcontractor compliance with plans ensure subcontractors submit their reports discuss performance with subcontractors when necessary to ensure a good faith effort to comply with plan If subcontracting goals are for single contract, can count SB subcontractors at any tier If goals apply to multiple contracts, can only count first-tier SB subcontracting 15

16 III. SBA Regulatory Agenda 79 Fed. Reg , January 7, 2014 Women s Business Center Program June 2014 SB Mentor Protégé Programs December 2013 SB HUB Zone Program December 2013 NDAA SB Amendments February 2014 Advisory SB Size Decisions December 2013 SB Size Standards Adjustment for Inflation January

17 CONTACT INFORMATION Richard B. Oliver McKenna Long & Aldridge LLP 300 South Grand Avenue, Suite 1400 Los Angeles, California Voice: Fax: