Stephen P. Ramaley

The Federal Acquisition Regulatory Council (FAR Council) recently released the rewrite of FAR Part 19, a notoriously complex set of regulations that covers the policies, procedures and programs designed to maximize small business participation in federal contracting. This rewrite is intended to enhance the intuitiveness and ease of applying regulations to small businesses in the federal procurement process. The FAR Council also issued a Practitioner Album, which summarizes proposed changes to the regulations and provides helpful guidance and resources for

The Small Business Administration (SBA) published earlier this month one of the most significant rule changes in recent history. We previously addressed the new M&A and long-term recertification rules. Now, we’ll examine the homogenization of the negative control rules across the SBA’s small business and socioeconomic programs, as well as the approval of rights of first refusal (ROFRs) for all these programs. These rule changes could materially improve access to capital for 8(a) program participants, woman-owned small businesses (WOSBs) and

The Small Business Administration published a gargantuan new rule Tuesday that will significantly change small business contracting for years to come. The rule was styled “HUBZone Program Updates and Clarifications, and Clarifications to Other Small Business Programs,” and while a large swath of the rule is directed at the HUBZone program, the most consequential changes affecting the largest number of contractors are the “Other Small Business Programs” updates. These changes affect how small businesses calculate their size, permit minority investment, leverage past performance

Any acquisition involving a small business government contractor comes with a host of questions concerning what effect, if any, the transaction may have on the small business’s size and status post-closing. Will a firm that certifies as small or for a particular small business socioeconomic status (Woman Owned Small Business, Service Disabled Veteran Owned Small Business (SDVOSB), etc.) pre-closing keep its status even after the deal? In many cases, no. This potential reality leads to more questions. What will become of

It is not any exaggeration to say that mentor-protégé joint ventures (MPJVs) have taken over the world of set-aside Government-Wide Acquisition Contracts (GWACs). For example, late last year it was reported that the initial award list for CIOSP4 small business was entirely or mostly comprised of mentor-protégé joint ventures.[1] As a result, there is growing sentiment that using an MPJV is now required to win a seat on large, set-aside vehicles. This understanding has been reinforced by the recent changes

On September 24, 2021, the Safer Federal Workforce Task Force issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Guidance”). This highly anticipated Guidance outlines the Covid-19 protocols for government contractors that were announced on September 9 in Executive Order 14042 (Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors) (“Order”), which was covered in a recent M&S Industry Alert. These new protocols will be enforced through a contract clause that must be included in all

On December 27, 2020, the Consolidated Appropriations Act, 2021 (the “Appropriations Act”), was signed into law following weeks of negotiations by members of Congress and Executive branch officials. The Appropriations Act combines an omnibus spending bill for the 2021 federal fiscal year with $900 billion in stimulus relief due to the ongoing effects of the COVID-19 pandemic in the United States. Division N, Title III, of the Appropriations Act is the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues

On May 28, 2020, the U.S. House of Representatives near-unanimously passed the Paycheck Protection Program Flexibility Act of 2020, H.R. 7010 (the “PPP Flex Act” or the “Flex Act”) as national leaders look to provide additional, more expansive support to small businesses impacted by COVID-19. The Senate passed the PPP Flex Act on June 3, and President Trump signed it into law on June 5.  This bill follows multiple rounds of guidance released by the Small Business Administration (the “SBA”),

On May 13, 2020, the U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the Treasury, provided the following critical guidance on the good-faith certification requirement for Payroll Protection Program (PPP) borrowers (updated FAQ): Any borrower who, together with its affiliates, received PPP loans with an original principal amount of less than $2,000,000 will be deemed to have made the necessity certification in good faith. Borrowers with PPP loans at or above $2,000,000 may still be deemed to have

On Thursday, April 23, 2020, the U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the Treasury, added new guidance to their Paycheck Protection Program (PPP) FAQ document, located here, which addresses certain questions regarding PPP loans under the CARES Act. This guidance was issued as Congress passed legislation that adds an additional $310 billion to the PPP. Most critically, SBA addressed the requirement that PPP borrowers certify that “[c]urrent economic uncertainty makes this loan request necessary

Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted on March 27, 2020, provides the possibility of welcome financial relief for many federal contractors struggling to stay afloat during the COVID-19 pandemic. Subject to certain prerequisites and constraints, Section 3610 permits agencies to reimburse, at “the minimum applicable billing rate not to exceed an average of 40 hours per week any paid leave, including sick leave, a contractor provides to keep its employees in a ready

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (or “CARES”) Act, the largest stimulus in American history (the “Act”). The Act expands eligibility and loosens restraints on the Section 7(a) Loan Program of the U.S. Small Business Administration (“SBA”), authorizes up to $349 billion in new Paycheck Protection Program Loans (“PPP Loans”), makes them 100% (rather than 75%) guaranteed and provides for PPP Loan forgiveness in certain circumstances. On April 2, 2020, the

As the marketplace slows in response to the worldwide spread of COVID-19, companies are (or should be) breaking out their contracts and subcontracts to see what they say to protect themselves from current and future problems. Here are the critical provisions. All Contractors and Subcontractors All companies should review their contracts and subcontracts for force majeure clauses. The critical issues related to these clauses are outlined in two articles posted to our Coronavirus Task Force website. The articles can be found here

U.S. Small Business Administration (“SBA”) regulations require that mentor-protégé and socioeconomic joint ventures designate the protégé or socioeconomic member as the “managing venturer” of the joint venture. However, the regulations do not define “managing venturer” or state how much control such a “manager” must maintain over the joint venture. In the context of typical small business operating entities (i.e., not joint ventures), SBA’s Office of Hearings and Appeals (“OHA”) has offered detailed guidance on what it means to “control” such entities, but

2018 was a busy year in terms of changes to the statutes and regulations that govern small business and socioeconomic set-aside procurement activities for small and large firms alike. This Miles Alert discusses two of the highlights: (1) The Small Business Runway Extension Act of 2018 amending the Small Business Act to extend the period of measurement used to determine whether a business is considered “small,” and (2) the FAR Council’s long-awaited issuance of a proposed rule to reconcile the FAR’s Limitation on the

UPDATE:  Effective May 25, 2018, the SBA updated its regulations in an apparent attempt to invalidate the holding in Analytic Strategies. However, because the SBA termed this update a “technical correction,” which is a designation reserved for non-substantive matters, and because the update might not address the entirety of the holding in Analytic Strategies, it is not clear whether the update will result in the case being overturned. Nonetheless, the law in this area has once again returned to a state of uncertainty. It

Last year the U.S. Supreme Court in Kingdomware Technologies Inc. v. United States[1] appeared to have settled a long-standing dispute about whether the U.S. Department of Veterans Affairs must prefer service-disabled veteran-owned small businesses (“SDVOSBs/VOSBs”), instead of purchasing products or services from the General Service Administration’s Federal Supply Schedules. The Supreme Court ruled against the VA, holding that pursuant to the Veterans Benefits, Healthcare and Information Technology Act of 2006,[2] the VA was required to set aside a procurement whenever