SBA Regulatory and Compliance Update
June 17, 2014
National 8(a) Association Summer Conference
Presented by:
Robert K. Tompkins, Holland & Knight
Melanie Roller, C2 North
Copyright © 2014 Holland & Knight LLP All Rights Reserved
I.
General Regulatory Update
New Regulations
Significant New SBA Final Rules in the last 12 months
i.
June 2013 – Implementation of the Small Business and Jobs Act “Integrity
Provisions” principally through the addition of 13 CFR 121.108.
ii.
July 2013 – Small Business Subcontracting
iii.
October 2013 – MAC contracting
iv.
June 2014 – Correction to 125.6 omission in MAC rule
Pending Rules
– June 12, Interim Final Rule with Inflation Adjustment
to Monetary Based Size Standards
• Effective July 14, 2014
• Comments due August 11, 2014
Anticipated Rule-makings
Anticipated Rule-makings (from 2010 JOBS Act and 2013 NDAA)
i.
Size Standard Reviews, Sectors 31 and 33 due out soon.
ii.
Mentor-Protégé Changes
iii. Limitation on Subcontracting Revisions
SBA Guidance/SOP Updates
– Revisions to SOPs
– SF 1450 and other items (see next slides)
– Guidance on Business Development and Shared
Administrative Services
II. Administrative and Personnel Changes
New SBA 1450 Form
New 8(a) Contract Activity Reporting Form
• There is a new SBA 1450 form available on SBA’s
website. However it is not available on BDMIS yet.
–http://www.sba.gov/content/sba-form-1450-8aannual-update
• New attachment to Form 1450 (Attachment C)
requires reporting on 8(a) contracts including selfperformance percentages and subcontractors
New System to Replace BDMIS:
OneTrack CMS
• OneTrack CMS (Certification Management System) may complete
user testing in Fall 2014. Possible training for SBA in early 2015 with
user implementation later in the year.
• New system to be more user friendly and will integrate with SAM,
requiring only one user ID/password to access all databases.
• OneTrack will allow you to see where your company is in the review
process.
• Will be able to upload documents to accompany the application.
• OneTrack CMS will have information on mentor-protégé program
and all the required checklists.
SBA Personnel Changes
In Washington:
• Bob Watkins will be serving as SBA Acting Administrator and replaces
Darryl Hairston, who recently retired.
Related to Alaska:
• SBA Alaska District now has dedicated legal counsel which should
speed up future submittals processing.
• SBA Alaska District also has one newly assigned BOS.
III. Enforcement and Oversight Changes and Trends
DPCE Document Requests
• The Division of Program and Certification Eligibility was
established under Section 7(j) of the Small Business Act.
• DPCE is conducting initial and continuing eligibility reviews
of 8(a) program participants in coordination with annual
reviews.
• DPCE has requested all SBA district offices obtain and
provide documentation on each active 8(a) participant.
• You may receive your request via e-mail from your BOS.
Enforcement and Oversight
–
SBA OIG activity (see data next slide)
–
Broader enforcement trends – various components working
together (SBA and other agency OIG or investigative arms (i.e.
Army CID)
–
Emerging issues
•
Use of administrative reviews in conjunction with other
enforcement actions
ENFORCEMENT: STATISTICS TELL THE STORY
SUMMARY OF SBA-RELATED CRIMINAL ACTIONS AND
SUSPENSION/DEBARMENT ACTIVITY BY FISCAL YEAR
Indictments
From OIG
Cases
Convictions
From OIG
Cases
Suspensions/
Debarments
Recommended to
the SBA
SBA
Proposed
Debarments
SBA Final
Debarments
FY 2013
64
51
65
34
16
FY 2012
59
52
45
21
14
FY 2011
69
47
41
18
16
FY 2010
81
41
31
24
16
14
IV. Case Law – GAO and OHA cases
CASE LAW DEVELOPMENTS
OHA
–
–
–
Cases involving protest rights and timing. (NAICS Code appeals; post-proposal
information)
Cases involving re-certification of size on long-term and MAC contracts.
Ostensible subcontractor cases: factors to consider: what are the “primary and vital”
aspects of the work? Whose employees provide project management? Is the
subcontractor the incumbent?; What are the capabilities of the prime?
GAO
–
–
–
–
–
Rule of Two Cases. Timing of protest. Adams & Associates, B-409685, April 22,
2014.
Past Performance & Experience. Unduly restrictive evaluation criteria. Iyabak
Construction, LLC, B-409169, February 6, 2014
8(a) set-asides. “New” Requirements under 8(a). HRCI-MPSC PASS, LLC, B408919, January 8, 2014, see also Alpa Technologies, B-408762.2, Feb. 12, 2014
Timing of 8(a) JV approval. BGI-Fiore JV, LLC, B-409520, May 29, 2014
Consolidation – low bar for government. American Toner & Ink, B-409528.7, June 9,
2014.
Best Practices/Recommendations
• Understand and address issues raised in the new and upcoming
regulations
• Take an integrated view toward your interactions with the government
(SBA, contracting agencies, etc.)
• Enhance your compliance programs and training
– Ensure your internal controls on determining size, affiliation and certifications are
sufficient and well-documented
– Right-size your training
• Be aware of the enforcement environment
– Take care in filings and representations to the Government
– Alert your staff to be on the lookout for atypical inquiries
Contact Information
C2 North, LLC
Melanie Roller
4141 B Street, Suite 201
Anchorage, AK 99503
907.569.9122 T
603.388.0793 eFAX
mroller@c2north.com
www.c2north.com
Contact Information
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•
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Robert K. Tompkins
Partner
Holland & Knight, LLP
800 17th Street, NW, Suite 1100
Washington, DC 20006
(202) 469-5111 (direct dial)
Robert.Tompkins@hklaw.com