As the world's largest purchaser of goods and services, the U.S. Government provides great opportunities for small businesses. In fact, federal agencies are required to establish goals to ensure that at least 23 percent of all government purchases are directed to small businesses. The Small Business Administration (SBA) provides several programs through which small businesses can compete for government contracts and subcontracts, including the 8(a) Business Development, Small Disadvantaged Business (SDB), Veteran-Owned, Service-Disabled Veteran-Owned, Historically Underutilized Business Zone (HUBZone), Women-Owned, Mentor-Protégé and 8(d) Subcontracting programs. The federal marketplace, however, is a heavily regulated industry and, to do business with the Government, small businesses have to meet stringent qualification requirements.
Navigating the rules that apply to small businesses is also important to large government contractors that team with small businesses. For example, prime contractors and subcontractors on contracts over certain dollar amounts must submit subcontracting plans setting forth specific percentage goals for different types of small businesses. In addition, it is common for large businesses to team with small businesses under small business set-aside contracts. It is essential that both large and small businesses understand the unique requirements associated with these arrangements, as they have become the subject of increased scrutiny by procuring agencies and the SBA in recent years.
Wiley Rein has a wealth of experience providing guidance and representation on small business issues to both small and large businesses. Representative matters include:
- Assisting with the formation of small business concerns under various SBA programs.
- Advising small and large businesses on teaming arrangements, joint ventures, subcontract agreements, the Mentor-Protégé program and small business affiliation rules.
- Appealing formal size determinations and North American Industry Classification System (NAICS) code designations to the SBA Office of Hearings and Appeals.
- Litigating size and HUBZone protests against contract awardees before the SBA.
- Representing small businesses in bid protests before the Government Accountability Office (GAO) and U.S. Court of Federal Claims (COFC), including pre-award and post-award protests of small business sole-source and set-aside contracts.
- Counseling small and large businesses on the requirements of the Limitation on Subcontracting clause (also known as the "50 percent rule").
- Counseling large government contractors on small business subcontracting requirements and small business subcontracting plans.
- Counseling large businesses that work as joint venture partners or subcontractors to small businesses under small business set-aside contracts.
Small business contracting and subcontracting issues will continue to be an important part of doing business in the federal marketplace for both small and large businesses. Wiley Rein's attorneys can help contractors of all sizes ensure that they are meeting the requirements for operating as and with small businesses.
ISSUE: WINTER 2013