Wiley Rein LLP


Government Contracts | SMALL BUSINESS

As the world’s largest purchaser of goods and services, the U.S. government provides great opportunities for small businesses.  The federal marketplace, however, is also heavily regulated.  Wiley Rein is well-positioned to assist businesses of all sizes with navigating the specialized rules that apply to U.S. government contracting, including issues related to the formation of small businesses, application to SBA small business programs, teaming agreements and joint ventures, affiliation issues, size challenges, and bid protests.  Our attorneys have extensive experience with issues arising under all Small Business Administration (SBA) programs, including the 8(a) Business Development, Small Disadvantaged Business (SDB), Veteran-Owned (VO), Service-Disabled Veteran-Owned (SDVO), Historically Underutilized Business Zone (HUBZone), Women-Owned (WO), and Small Business Subcontracting programs. 

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.  Wiley Rein frequently counsels large business clients on the unique issues that can arise when teaming with, or acting as a subcontractor to, small businesses, including compliance with limitations on subcontracting (i.e., the “50 percent rule”), the nonmanufacturer rule, and the development of small business subcontracting plans. 

Following the passage of the Small Jobs Act of 2010, Pub. L. No. 111-240 (Jobs Act), and the SBA’s implementing regulations, agencies have placed increased emphasis on setting aside contracts of all types and sizes for small businesses.  See Alert – SBA Issues Final Rule Addressing Small Business Set-Asides in Connection with Multiple Award Contracts.  The Jobs Act also included several new reporting requirements for large businesses with small business subcontracting plans aimed at increasing subcontracts awarded to small business.  See Alert – SBA Final Rule Attempts to Prevent the Use of “Bait and Switch” Tactics with Small Business Subcontractors.  These developments have the potential to create new opportunities for many small companies, but can also create traps for contractors unfamiliar with the new requirements.  We can help you navigate this ever-changing small business environment.

Representative experience includes:

  • Appealing formal size determinations and North American Industry Classification System (NAICS) code designations to the SBA Office of Hearings and Appeals.  See Global Decision, Bering Straits Decision, and JBS Decision.  See: Size Appeal of Global, A 1st Flagship Company, SBA No. SIZ-5462 (2013); Size Appeal of Bering Straits Logistics Services, LLC, SBA No. SIZ-5277 (2011); NAICS Appeal of JBS International, Inc., SBA No. NAICS-5021 (2008).
  • Assisting with the formation of small business concerns and application to SBA programs, including 8(a) Program applications, Center for Veterans Enterprise (CVE) Verification for SDVO Small Businesses, and WO Small Business certification.
  • Advising small and large businesses on teaming arrangements, subcontract agreements, and joint ventures, including 8(a) Mentor-Protégé joint ventures.
  • Litigating size protests against contract awardees before the SBA and Representing small businesses in bid protests before the U.S. 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 limitations on subcontracting requirements (also known as the “50 percent rule”) and the nonmanufacturer rule.
  • Counseling large businesses that work as joint venture partners or subcontractors to small-businesses under small business set-aside contracts and advising on small business subcontracting plans and requirements.
  • Advising businesses involved in mergers and acquisitions regarding the impact of the transaction on size status and existing small business set-aside contracts.  See Acquiring Small Business Government Contractors in a New Economic Reality: Opportunities for Growth Remain With Appropriate Due Diligence.