Contracting Officers Can Pay You Even If The Contract Is Shut Down!

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This is a guest post by Cy Alba of PilieroMazza PLLC.

Yesterday, we discussed the emergency loan programs and loan forgiveness opportunities for small businesses in the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). However, it is critical to understand that there other avenues for relief that do not have to wait for SBA or private lenders to start processing such loans. Specifically, OMB Memorandum M-20-18 gave Contracting Officers (“CO”) broad authority and specifically states that all contracting personnel should “feel fully empowered to use acquisition flexibilities.” Further, Section 3610 of the Act, entitled “Federal Contractor Authority,” specifically states that COs have authority to continue paying contractors in order to maintain employment for contractor personnel, even if the contract is subject to a stop work order or other delay. Again, this is true even if no work is being performed on the contract.

More specifically, the CARES Act states that:

…funds made available to an agency by this Act or any other Act may be used by such agency to modify the terms and conditions of a contract, or other agreement, without consideration, to reimburse at the minimum applicable contract billing rates not to exceed an average of 40 hours per week any paid leave, including sick leave, a contractor provides to keep its employees or subcontractors in a ready state, including to protect the life and safety of Government and contractor personnel, but in no event beyond 9/30/2020. Such authority shall apply only to a contractor whose employees or subcontractors cannot perform work on a site that has been approved by the Federal Government due to facility closures or restrictions, and who cannot telework because their job duties cannot be performed remotely during the public health emergency for COVID-19.

While the wording of this provision is not entirely clear for every contractual circumstance, this allowance by Congress, combined with the clear guidance from OMB that all COs should feel “fully empowered” to exercise all contracting flexibilities, gives every contractor a strong argument to support continued payment on contracts which have been suspended in some way due to the COVID-19 crisis. Even if you are working on a Firm-Fixed Price (“FFP”) contract, or a contract where payments are made via deliverables or some similar method, the Act gives COs authority to modify the contract to transform any standard payment or negotiated amounts to per hour contract billing rates for all of your employees. In fact, the Act, along with the OMB guidance, gives COs near unfettered discretion to craft a fair and reasonable alternative on a contract-by-contract basis to ensure employees are working and a company’s bills are being paid throughout this crisis and without reliance upon the SBA 7(a) loans or other emergency disaster loans.

It should also be noted that the Act uses the phrase “minimum applicable contract billing rates” when describing the amount to be reimbursed to contractors. It does not state that only direct costs paid to the employee are to be reimbursed. Therefore, there is a good argument that the amounts to be reimbursed under the Act are the actual contract rates, if such rates are already in the contract, including all indirect costs and even profit. As noted above, the Act and the OMB memorandum gives COs the ability to add negotiated rates to a FFP or other deliverable-based contract that does not have hourly rates. These too should be “contract billing rates” and not merely the direct costs paid to the employee.

All this said, there is an open question about how owners—especially small business owners who rely on monthly or bi-monthly income streams to pay their bills and feed their families—are supposed to be paid if COs attempt to take a position that profits are disallowed. Again, I note that the law itself does not disallow profits, or limit reimbursements just to costs, so COs are more than capable of continuing to pay the fully loaded rates to contractors and, given the immense impact this is having on everyone (from the lowest level employee to the highest executive), it is only fair and reasonable that the phrase “minimum contract billing rates” includes the actual fully loaded rate negotiated for a contract or a fully loaded rate to be negotiated for contracts that are not Time and Materials or Labor Hour type contracts. Of course, as we know more or the details are fleshed out, we will continue to update our clients.

To that end, and in order to better assist businesses during this national emergency, PilieroMazza has created the PilieroMazza COVID-19 Client Resource Center to counsel clients on legal issues stemming from the evolving spread of COVID-19 in the United States (check this page regularly for updates). The Firm’s COVID-19 Client Response Team’s focus includes addressing questions involving all aspects of our practice, such as labor and employment concerns, workplace safety and contingency plans, business interruption, contract disputes, as well as finding the best path through this crisis for your business.

Cy Alba, the author of this Client Alert, is a Partner in the Firm’s Government Contracts and Small Business Programs & Advisory Services practice groups.

This PilieroMazza Client Alert originally appeared at https://www.pilieromazza.com/contracting-officers-can-pay-you-even-if-the-contract-is-shut-down and was reprinted with permission.


Breaking Down SBA’s COVID-19 Economic Injury Disaster Loan

A guest post by David T. Shafer, Associate, PilieroMazza PLLC.

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The unprecedented impact of the COVID-19 pandemic on small businesses has caused the Small Business Administration (SBA) to institute an Economic Injury Disaster Loan (EIDL) program aimed at aiding those affected by the pandemic. Whether you’re a government contractor or a commercial business, we’re breaking down for you the who, what, where, when, and how of the SBA’s detailed EIDL application process.

1. WHO: Eligible Businesses

a. To be eligible, in addition to other conditions, an applicant must be a small business, small agricultural cooperative, or a private non-profit organization.

b. The business’s principal office must be located in a state that has an EIDL declaration (see list below).

c. The SBA must determine the business to be creditworthy. Loans that exceed $25,000 must be secured by collateral to the extent possible and, if the business has no collateral to pledge, assets of the business’s owners may need to be pledged as collateral.

d. Applicants must show that they have the ability to repay all loans.

e. EIDL assistance is available only to a small business when SBA determines that such business is unable to obtain credit elsewhere. If you have not explored obtaining financing through other avenues (SBA or other), please contact a trusted advisor who can help align your objectives with an appropriate lender and/or investor.

2. WHAT: Economic Injury Disaster Loan

a. EIDLs are loans issued to eligible business by SBA under its own authority, following a request to the SBA from a state or territory’s governor that the businesses in their respective area have been adversely affected by the COVID-19 pandemic, as provided for in the recent Coronarvirus Preparedness and Response Supplement Appropriations Act.

b. An EIDL is a loan for a business to pay fixed debts, payroll, accounts payable and other liabilities. The actual amount of each loan is limited to the economic injury suffered by the business as determined by SBA, up to a maximum of $2 million, which maximum can be waived by SBA if the business is a major source of employment. “Economic injury” has been interpreted to mean that the business is unable to meet its obligations and to pay its ordinary and necessary operating expenses. Importantly, such loans do not replace lost sales or revenue, and such losses will not be considered an economic injury.

c. The maximum interest rate is 3.75% for small businesses.

d. The maximum term of each loan is 30 years, though the period of time to repay the loan is determined on a case-by-case basis depending on the business’s creditworthiness.

3. WHERE: Eligible States and Territories

Listed below are states that have received an EDIL declaration at the time of this alert. States in [bold/italics] have not yet received a declaration [as of March 20, 2020], though we anticipate that they will shortly. If your business’s principal office is in one of the states or a county or city that borders these states, you may be eligible for SBA assistance.

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

District of Columbia

Delaware

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

4. WHEN: SBA has already started processing applications.

5. HOW: Starting the Application Process

For additional information, please visit SBA Disaster Loan Assistance, call the SBA Disaster Assistance Customer Service Center at 1-800-659-2955 (TTY: 1-800-877-8339), or email emaildisastercustomerservice@sba.gov. If you would like to contact PilieroMazza for assistance navigating the program, please contact Dave Shafer at dshafer@pilieromazza.com.

Important Takeaways

a. Businesses should review their current insurance policies, other assistance programs, and other banking relationships currently in place to determine whether obtaining an EIDL is an “event of default” or can otherwise adversely affect their financing agreements and arrangements that are currently in place.

b. The COVID-19 pandemic is an unprecedented national crisis that will put a strain on governmental resources which, in turn, may cause delays in the processing of loan applications. Accordingly, SBA officials have repeatedly stressed that applicants should thoroughly complete their applications before submission to ensure they are able to be processed the first time they are submitted.

If you have questions about SBA’s Economic Injury Disaster Loan Program or any component of the application, please contact Dave Shafer at dshafer@pilieromazza.com or at 410.500.5551. We also invite you to visit the firm’s “COVID-19 Client Resource Center” to access resources that will help small businesses navigate the COVID-19 pandemic.

This post originally appeared on the PilieroMazza blog at https://www.pilieromazza.com/breaking-down-sbas-covid19-economic-injury-disaster-loan.


SBA Provides Updates on WOSB Certification Changes

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This is a guest post by Haley Claxton of Koprince Law LLC.

Last May, we reported on proposed changes to the SBA’s Women Owned Small Business Program Certification Process. Now, the SBA’s website includes updated information about what those changes may mean for existing and new WOSBs.

As you may recall, in 2019, the SBA (at long last) proposed updates to its WOSB/EDWOSB Program in response to Congress’ 2015 NDAA. The 2015 NDAA required the SBA to remove the option for businesses to self-certify as small businesses owned and controlled by women and replace it with a more robust certification process operated directly by the SBA. The proposed updates intend to do just that.

The SBA indicates that we can expect “that the regulations enacting the statutory requirement will be published on June 30, 2020, and will be effective 30 days later.” But what will this mean for currently certified businesses?

For current third-party certified WOSBs and EDWOSBs, SBA will require re-certification “three years after the date of their most recent re-certification as a third-party certified firm.” Re-certification may be completed through the SBA’s new certification process or again through a third-party certifier.

For WOSBs and EDWOSBs who are currently self-certified with active WOSB or EDWOSB set-aside contracts, SBA clarifies that “[a] firm that was eligible as a WOSB or EDWOSB at the time of offer for the contract is considered a WOSB or EDWOSB throughout the life of the contract.” Even so, where a contract has a duration of more than five years, including options, businesses must be recertified “by SBA or an approved third-party certifier prior to the end of the fifth year of the contract.” For those familiar with SBA’s size status rules, this requirement is similar to the rule for maintaining size status on long-term contracts.

Finally, for WOSBs and EDWOSBs who are currently self-certified with no active WOSB or EDWOSB set-aside contracts, the requirements are a little more complex. If you fall under this category and haven’t been protested or examined by the SBA in the two years prior to the effective date of the new rules, get ready to start preparing your application – you will need SBA or third-party certification before you are considered an eligible WOSB/EDWOSB. In contrast, if you have been protested or examined in the two years prior to the effective date and received a positive final decision, you “must re-certify within 30 days of [your] certification anniversary if there have been no material changes since [your] last certification.” From there, you will have to “undergo a full document review and re-certification” at the end of year 3.

New applicants will be able to start from scratch and certify through the SBA directly when the rule becomes effective, or will still have the option to certify through third-party certifiers. In addition, women-owned businesses already certified through the Department of Transportation’s Disadvantaged Business Enterprise program (DBE), or the Department of Veteran Affairs’ Center for Verification and Evaluation (CVE) are at an advantage: these kinds of certification will be considered equivalent to SBA certification.

The SBA has provided an FAQ and plans to provide more updates on its webpage here. We will also continue to cover the changes as they develop, so keep an eye on the blog. And, as always, if the new rules have you scratching your head, you can call or email us at Koprince Law LLC!

This post originally appeared at SmallGovCon at http://smallgovcon.com/women-owned-small-business-program/this-just-in-sba-provides-updates-on-wosb-certification-changes/ and was reprinted with permission.


GSA MAS Consolidation – What Current GSA Contractors Need to Know

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This is a guest post by John Abel and Haley Lawrie of Winvale.

The GSA MAS Consolidation is here, and things are changing FAST for government contractors. Not to worry, Winvale is here with all the information your company needs to help successfully navigate the new MAS solicitation updates. We’ve seen the updates and how they affect new offerors, but let’s take a look at how current contractors will be affected.

ALL GSA Schedule holders will be receiving a notice for Mass Modification A812 – MAS Consolidation over the course of the next week or so. Some of those reading this may have already received the notice, depending on Schedule number. Below is a schedule for the release dates of the mass mod across all 24 GSA legacy Schedules:

Mass Mod A812 Release DateLegacy Schedule Number
Friday, 1/3103FAC, 23V, 36, 48, 51V, 58 I, 599
Monday, 2/300CORP (PSS)
Tuesday, 2/400CORP (PSS) Cont.
Wednesday, 2/570
Thursday, 2/670 Cont.
Friday, 2/756, 66, 67, 71, 71 II K, 72, 73,
Monday, 2/10736, 738X, 75, 751
Tuesday, 2/1176, 78, 81 I B, 84

Why is the MAS Mass Mod happening?

GSA is making active efforts to modernize and simplify the federal acquisition process by consolidating the current GSA Schedules. This mass modification will be the most important to date for GSA Contractors.

24 Schedules have been consolidated into 1 Multiple Award Schedule, 12 Large Categories, 83 Subcategories, and 316 newly formatted Special Item Numbers. GSA wants to eliminate any duplicate Schedules while continuing to meet the needs of its government buyers.

When do you need to take action on Mass Mod A812?

It is imperative that you check your email regularly to ensure that you’ve received the mass modification notice. If your contract administrator has not received the email by the corresponding date for your specific schedule, contact your GSA Administrative Contracting Officer (ACO) as soon as possible. (Don’t know who your ACO is? Find them here.)

Not only is it essential for contractors to ensure acceptance of this mass modification in order to reap the benefits of the consolidation, it is also mandatory, with a 90-day window for acceptance after the initial email notification is received. Within this mass modification, contractors will be required to:

  • Review and accept 210 FAR and GSAM clauses
  • Review the updated terms and conditions for the MAS
  • Map existing SINs on your current Schedule to new SINs under the applicable Large Categories

If you have taken exception to any solicitation clauses in previous Mass Modifications, these exceptions will not carry over and that process must occur again.

How do you know what SINs you will have awarded after the Mass Mod?

It is important to note that awarded products/services, pricing, contract number, and the period of performance for your GSA Contract will NOT change. While the Contract Type and Special Item Numbers (SINs) will change, the pricing components of your contract won’t change. You don’t need to apply for a new contract and the Mass Mod will not automatically consolidate your contracts down to one contract per your DUNs number.

GSA will provide a mapping of your current SINs to the new SINs that will go into effect upon acceptance. If you are wondering what new SINs your contract will be mapped to, we can help.

Overall, changes from this MAS consolidation will be contingent on Mass Mod A812, but there are a few things on the backend that contractors must complete in order to be fully compliant and ensure proper use of the GSA Schedule to its full potential moving forward. Although accepting the mass modification will update a number of fields within GSA’s internal systems, contractors must still manually complete the updates through programs like SIP to reflect the new MAS structure on GSA eLibrary and GSA Advantage!.

After accepting the mass mod, contractors will need to perform a SIP upload to initiate a “merge” of the legacy SINs to the new SINs within 30 days acceptance. This will ensure that all records remain current with the new MAS solicitation structure and terms and conditions so that buyers will be able to conform to the new structure when seeking out contracting partners.

How will this impact your current GSA Schedule Maintenance?

To ensure there are no hiccups when accepting the Mass Mod, GSA is suspending the ability to submit requests in eMod for “Add SIN” and “Delete SIN” modifications under the legacy Schedules on Jan. 30, 2020. The ability to process “Add SIN” and “Delete SIN” modifications will be restored March 14, 2020. All other modification types will still be accepted throughout Phase II of MAS Consolidation.

With regards to sales reporting, SINS are effective immediately when you sign the Mass Mod, and you will see both legacy SINs and new MAS SINs in SRP for the first sales reporting period after the Mass Mod approval date. After that reporting period has been completed, future reporting periods will only display the new MAS SINs.

The MAS Consolidation may seem like a huge hurdle to overcome, but it is a step in the right direction for GSA and your GSA Schedule contract. To make it easier for our clients, Winvale is hosting a webinar on Tuesday, February 25 about the MAS Consolidation and how it impacts your contract.

If you can’t make the webinar, feel free to contact our consulting team today for more information on how these updates will affect your company’s GSA Schedule and a more in-depth look into the changes. Winvale offers full-service GSA Schedule support from our experienced professionals specializing in SIP, FAR compliance, GSA Advantage! and Schedule compliance.

This post originally appeared on the Winvale blog at https://info.winvale.com/blog/gsa-mas-consolidation-phase-2-current-gsa-contractors and was reprinted with permission.


15 Government Contracting Tips

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Our friends at Winvale offered this post from their client Andrea Davis, Director of Contracts at Govplace, who shared these top 15 tips that she’s learned in her 20 years working for government contractors, in no particular order:

1. Late is late.

Electronically submit your competitive proposal at least 24 hours in advance to be safe. Case law is not favorable for contractors who submit their proposal less than 24 hours before the due date, even if the late delivery is the Government’s fault (e.g., the Government’s network is down).

2. Small Businesses with sub-categorizations (e.g., Women-Owned Small Businesses, or HUBZone Businesses) count TWICE OR MORE for small business reporting.

So, if you are wondering why your large business is so excited about subcontracting to a woman-owned small business (WOSB), where the owner happens to be a service-disabled veteran (SDVOSB) doing business in a HUBZone, it is because the dollars subcontracted to this entity likely count towards the subcontracting goals for: 1) Small Business, 2) WOSB, 3) SDVOSB and 4) HUBZone.

3. The subcontract type does not have to match the prime contract type, and the subcontract NAICS code does not have to match the prime contract’s NAICS code.

If I had a dollar for each instance when I heard someone state the opposite of the above truths, I’d be a millionaire.

4. Generally, concerning Government data rights / Intellectual property (IP), even if a company develops software using Government funds under a Government contract, the Government doesn’t own the software.

The Government does have unlimited rights in the software, but so does the company who developed the software.

5. You’ll never regret having a solid process in place for comparing job candidates’ resumes to GSA Labor Category minimum qualifications for education and experience.

For both your company’s employees and any lower tier subcontractor’s employees. People charging to a GSA labor category for which they are not qualified is a compliance issue that can bite you years down the road. By then, people have moved on, resumes cannot be located, the subcontractor is out of business, etc.

6. In Government contracting, ‘realism’ and ‘reasonableness’ have opposite meanings.

When the Government is checking to see if labor costs/prices are too low (i.e., if they are worried about the company being able to retain employees during contract performance), they are evaluating for ‘cost realism,’ but if they are checking to ensure prices/costs are not too high, they’re evaluating ‘cost/price reasonableness.’ It is not correct to use these words interchangeably.

7. FAR 9.6 defines prime-sub relationships, partnerships, and joint ventures as contractor team arrangements (e.g., a classic teaming agreement resulting in a subcontract once the prime contract is awarded).

But a GSA Contractor Teaming Arrangement (CTA) is entirely different. A GSA CTA is a when two companies who each have their own GSA Schedules, join together to co-prime an opportunity. Interesting fact: since all GSA CTA partners are considered co-primes, if any of the GSA CTA partners are ‘other than small’ in the solicitation’s NAICS code, the entire GSA CTA is considered Large.

8. There is a difference between regulation and law.

The FAR is mostly regulation, but it also references statutes/laws. Understand that you can influence regulation by submitting comments when the proposed regulation is posted for public comment.

9. Many non-Federal (state and local) government entities and even commercial companies performing due diligence on a company, will check for SAM.gov active exclusions (formerly, the Excluded Party List System or ‘EPLS’).

Therefore, if you are debarred from Federal contracting, some of your other future non-Federal business may be at risk as well.

10. The protest ‘effectiveness rate’ percentage (in recent years ranging 43-47%) is the best way to gauge how often a protester gets some sort of relief in response to their bid protest at GAO.

If you only look at the sustain rate percentage, which is much lower (ranging 12-17%), you are not getting the full picture. Many protests are dismissed as ‘academic’ before the 100-day time frame at GAO (often because the agency chooses to take corrective action to remedy a procurement flaw) so you can’t just look at the protests that went to a full GAO decision.

11. Post-award obligations in teaming agreements (TAs) (i.e., the requirement to enter into a subcontract) are generally not enforceable in Virginia because Virginia courts have repeatedly interpreted a TA as ‘an agreement to agree in the future.’

But some of the case law highlights things that would have potentially made the particular TA at issue enforceable. Like replacing this language: “The parties will negotiate a subcontract after prime award,” with “Prime shall award a subcontract to the subcontractor after prime award.” If you’re in the subcontractor role, try removing any language where a TA will terminate if negotiations haven’t concluded within x days of prime contract award. Virginia courts have left open the possibility that post-award obligations in TAs could be enforceable, depending on the certainty and specifics provided in the TA.

For example, while often impractical, courts have hinted that attaching a subcontract template to the TA that is contingent upon the prime being awarded the prime contract, would render the promise to award a subcontract enforceable. Note, however, that even when it is difficult for a teammate to enforce a prime’s promise in a TA to award the teammate a subcontract, that does not mean that other requirements and obligations in a TA are unenforceable. For example, the parties are still likely bound by the pre-award obligations to cooperate on preparing a proposal, to be exclusive to one-another (if applicable), and to maintain the confidentiality of information that may be disclosed pursuant to the agreement.

12. As Federal contracts professionals, we still must learn commercial contracts interpretation rules for our commercial negotiations.

The imperative ‘SHALL’ is the strongest language for contracts interpretation. ‘Will,’ ‘may,’ and ‘should’ are not as strong — use ‘shall.’

13. If you want to challenge a solicitation term (e.g., evaluation method, Statement of Work ambiguity, etc.) and you cannot resolve it through Q&As, you MUST submit a PRE-AWARD protest BEFORE THE PROPOSAL DUE DATE.

Otherwise, 98% of the time, a post-award protest challenging the solicitation will be dismissed by as untimely, regardless of the merit.

14. There is a difference between quotes and proposals. A quote is submitted in response to an RFQ and is considered ‘informational.’

The contract is not formed until the Government signs their acceptance of the ‘information’ and the contractor countersigns or starts performing. A proposal is an official offer made in response to an RFP that is valid for a specific duration of time (e.g., 60 days). It becomes a contract when the Government signs a contract with your proposal details in it.

15. Unless there have been some late 2019 cases on this topic, as of right now, the Government Accountability Office (GAO) case law on key personnel who depart a company between the time of a final proposal submission and contract award, is not favorable for contractors.

Companies would be wise to limit named key personnel (not propose more than required), and maybe offer proposed key personnel an incentive to stay until the contract is awarded (and hopefully longer). I’ve also learned that it can be helpful to get a written commitment from a departing key person that they will return to work for the company if an award is made.

This blog post appeared on the Winvale blog at https://info.winvale.com/blog/15-government-contracting-tips-from-winvale-client-govplace and was reprinted with permission.


Acquisition Provisions in 2020 NDAA – 852 Special Pathways for Rapid Acquisition of Software Applications and Upgrades

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This provision directs the secretary of defense to streamline and coordinate the requirements, budget, and acquisition process in order to rapidly field software applications and software upgrades to embedded systems in a period of not more than one year from the time that the process is initiated.

It will also require the collection of data through continuous engagement with the users of that software, so as to enable engineering and delivery of additional versions in periods of not more than one year each.

We’ve talked earlier about the government’s commitment to innovation, shown through changes to the SBA’s Small Business Information and Research (SBIR) and Small Business Technology Transfer (STTR) programs.

Then a few years ago, the DoD began to pick up a third method called other transaction agreements (OTAs), which allow for more flexible, commercial–like, and novel business solutions than the Federal Acquisition Regulation. OTAs have been enormously successful in delivering technology fast, with rapid development and so forth, with the Army having spent something like 3-and-a-half billion dollars in FY 2018 under OTAs.

This provision 852 directs the secretary to begin to look at all sorts of ways to accelerate fielding acquisition specifically for software purchases and new software engineering, including embedded systems like weapons and simulators. This does bring up the same problem mentioned in Section 831 and elsewhere, which is the need for cybersecurity and integrity – important any time you’re building new stuff.

Acquisition innovation is likely to be a hot topic for the next several years, as DOD and the whole Government grapples with the effects of the rules and regulations that have burdened procurement processes and made the cost of responses perilously high. This will be a continuing part of the conversation throughout the GovCon community.

Watch this space for more on this topic.


SBA’s Implementation of HUBZone Changes

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This is a guest post by Sam Finnerty of PilieroMazza PLLC, highlighting some upcoming changes to the SBA’s HUBZone program, a program that limits competition for certain contracts to businesses in historically underutilized business zones.

These changes were designed to keep investment flowing into HUBZones and make sure they don’t lose their HUBZone status just because things got better. We don’t want making things better to stop the investment train.

As always, consult an attorney about how these changes might apply to your business.

On November 12-13, 2019, the U.S. Small Business Administration (SBA) hosted its 5th Annual Mentor Protégé Conference where SBA’s John Klein, Associate General Counsel for Procurement Law, answered questions from the audience regarding various mentor-protégé issues. Mr. Klein provided some key insights regarding recent and upcoming SBA rulemakings that will have a significant impact on small business government contractors.

On November 13, 2019,SBA sent a final rule to the Federal Register for publication that will implement comprehensive revisions to the regulations governing the Historically Underutilized Business Zone (HUBZone) Program. These revisions, as proposed in October 2018, are available here. A couple of the key changes are:

(1) an individual will continue to be treated as a HUBZone resident if that individual worked for the firm and resided in a HUBZone at the time the concern was certified or recertified as a HUBZone—even if the area where the individual lives no longer qualifies as a HUBZone or the individual has moved to a non-HUBZone area; 

(2) HUBZone firms will only be required to certify on an annual basis, meaning such concerns will no longer be required to expressly qualify as a HUBZone at the time of each offer for a HUBZone contract and award.

In addition to the revisions proposed in October 2018, the final HUBZone rule will also implement a significant change to the regulations that was proposed during public comment. Specifically, the final rule will indicate that when a company buys an office located in a HUBZone or enters into a long-term, 10-year lease for such office space, intending the space to be its principal office, the concern will be able to meet the principal office HUBZone criterion for a period of at least 10 years—even if at some point after the property is purchased or leased, the office location no longer qualifies as a HUBZone. The idea behind this rule is that the HUBZone program should incentivize and reward companies that invest in HUBZones.

For more information on this and other topics impacting government contractors, please contact a member of PilieroMazza’s Government Contracts Group.

Samuel Finnerty, the author of this Client Alert, is a member of the Firm’s Government Contracts, Small Business Programs & Advisory Services, and Government Contracts Claims and Appeals practice groups.

This post originally appeared on the PilieroMazza blog at https://www.pilieromazza.com/this-just-in-sbas-implementation-of-hubzone-changes-and-small-business-runway-extension-act-coming-soon and was adapted and reprinted with permission.


Finding Talent in a Flood of Resumes

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This is a guest post by Ross Statham of Dogwood Services Inc. Note from Bill: In a previous post, Ross shared the top three reasons to hire an executive search firm, and offered his expert tips for ensuring a productive partnership.

Want to tackle the hiring process yourself? Here are some suggestions for how to proceed, though keep in mind that the top talent will rarely respond to job postings.

  1. Allow sufficient time. My own experience has been to allow two or more hours per day (minimum) for 2-3 weeks.
  2. Determine the salary range, daily duties, and a brief overview of desired qualifications.
  3. Ask for help. This could be from your HR department, from subordinates, or from others on your team. They could help you write a good job description, help you better communicate with candidates and help you to find and select better talent.
  4. Setup someone you trust (HR, a member of your team or subordinate) to do some of the heavy resume filtering before handing them over to you.
  5. Post your job opening. But as noted above, don’t have the resumes come to your work email (which can be overwhelming), have them go elsewhere for filtration. 
  6. As the resumes arrive to you, toss out those who obviously won’t make your cut. Those who are a “maybe” can be sent a (form email) note thanking them for their interest, and spelling out some details of what you are looking for and painting a realistic picture of the job. Many people can be filtered out this way, saving you additional looking.
  7. If you need to perform a software “scan” for key words again (perhaps using a Boolean search), now’s probably a good time to do so. This is particularly helpful with technical positions, when you’re looking for details of what they’ve done and when.
  8. At this point you’re starting to see where some resumes are starting to meet your needs by putting eyeballs on the ones that get your attention. Save these; if you think it appropriate, you can put their names on a spreadsheet (such as Google Sheets) with notes.
  9. As your eyeballs scan resumes, look at their last three jobs. How long were they there? What did they accomplish? What were their daily duties?
  10. If they continue to hold your interest, drill down from “scanning” to reading. Look for obvious negative and positives. Red flags may include employment gaps, evidence of decreasing responsibility, a career that has flattened or is moving in the wrong direction, short-term employment at several jobs, and multiple shifts in their career path.
  11. Continue to review your selected resumes against your criteria and each other.
  12. Found someone you like? Look them up on LinkedIn and Google them and see what you can learn about them.
  13. Telephone screen potential candidates.
  14. Bring in strong candidates for a face-to-face.

Again, you need to ask yourself if you really have the time. If so, then have at it! But if you’re like most busy executives, using an experienced outside expert will tremendously shortcut the process which will save both time and money. Most importantly, it will help you find those harder to find talented people who rarely respond to job openings.

This post was originally printed on LinkedIn at https://www.linkedin.com/pulse/finding-flood-resumes-ross-statham/ and was adapted and reprinted with permission.


Three Reasons to Hire an Executive Search Team

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This is a guest post by Ross Statham of Dogwood Services Inc.

The firm I founded and lead (Dogwood) provides talent across a wide range of industries (including the Fortune 10), non-profits and government. Typically we are called in by those who have had previous experience with trying to do their own talent search and found it was much more efficient to use us or other recruiters, or by those who tried to do their own search but realized that it was more than they could effectively take on.

First, let’s discuss the three biggest reasons that organizations use outside search firms:

  • The best talent rarely responds to job openings
  • Your H/R department may be not equipped to help with this
  • Not enough hours in the workday

Challenge #1: The best talent rarely responds to job openings

You’re probably heard it before, and it’s true. The top talent is careful and circumspect as to making career moves. The best talent rarely goes looking for new opportunities – but they will listen when the right opportunity presents itself.

Many years ago this happened to me. I received one of those calls out of the blue, which turned into a great new job well suited to my own talents in the tech field. I loved my new job and never looked back. 

Your best talent will usually need to be recruited (reached out to) by someone outside your organization. Executive recruiters use their own databases, can dig and find the right talent and pitch your organization’s strengths to the very best prospective talent.

Challenge #2: Your HR Department may not be fully equipped to help

My general observation is that most HR departments may not be fully equipped to find talent, because it’s not their primary responsibility. Even at the company I lead (a talent acquisition company, no less), our own HR folks are concerned with administering to employees, ensuring that benefits are being properly managed, paperwork is up to date, regulatory compliance is being fully met and in dealing with the myriad of payroll, benefits, vendor, personnel and other HR issues that arise every day.

Most HR departments have stated goals to include talent acquisition in their responsibilities, but even the best HR departments have difficulty in doing so. However, my opinion is that most do an excellent job of supporting the process once candidates are identified and interviewed.

Challenge #3: Not enough hours in the workday

If you’re like most people, you are constantly adjusting your daily priorities in order to get things done on time and under budget.

Do you have time for this? Probably not. Our past experience has shown that those searching for talent need to allocate between 1-3 hours per day per job opening to pore through resumes, screen out those who are completely unqualified, second screen those who may be of interest, conduct basic phone screens and perform some basic information searches on potential candidates.

Free up your time by using an outside expert

By now you are learning why successful executives use outside executive search firms.

First, find someone who already understands your industry (so you don’t have to educate them) and who already knows where some of the best talent can be found. Make sure they’re reputable, well established and have a track record of success. (Yes, it’s okay to ask for references!) Ideally, they’re large enough to be well established, but not so large that your needs can get lost in the shuffle. 

You can use a contingency-based firm (where you only pay for success), or use a retained-search firm, where you pay a fee (in advance) and they exclusively represent you to candidates. Either way works, but I generally recommend you select an experienced contingency-based firm that you’re comfortable with and give them an exclusive for 30 days. That way they’re focused on you, you have a definite time frame in front of them, and you’re only paying for results. If they don’t work out, you can add someone else to the mix as needed without additional cost.

Allocating time to your expert

One of the best executive recruiters on our team tells his new clients that he’s their sharpshooter, and they’re his spotter (to tell him how he’s doing with the people he sends them, or in military terms, to tell him where his shots are falling). Because the hiring manager he’s working with has a need for specific talent, they form a “partnership” for a relatively short time while he finds, filters, screens and interviews talent for the client. Keep that in mind – these outside experts need your input for this to work in a timely manner.

During your initial call (which should only take about 15 minutes), tell them what you’re looking for, what you’re trying to accomplish and details about the job as you see it. Perhaps refer them to a subordinate for additional details and discuss compensation and benefits. Good executive recruiters know what kind of questions to ask and will guide you through areas you may not have even thought about.

Once you’ve started the process, turn them loose and let them do their jobs. You should start to see real results within two to five business days, depending upon the complexity of your needs. But remember – they need you to communicate where their shots are falling. Just five minutes per day allocated to your executive recruiter during the search can yield stellar results.

This post was originally printed on LinkedIn at https://www.linkedin.com/pulse/finding-flood-resumes-ross-statham/ and was adapted and reprinted with permission.


SBA Adopts Five-Year Receipts Calculation

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This is a guest post by PilieroMazza Partner Megan Connor and PilieroMazza Associate Anna Wright, members of PilieroMazza’s Government Contracts and Small Business Programs & Advisory Services practice groups.

Effective January 6, 2020, SBA will change the period of measurement for receipts-based size calculations from three years to five years. This change is the result of the Small Business Runway Extension Act of 2018 and SBA’s final rulemaking on December 5, 2019. This is a long-awaited change and will have far-reaching impacts for government contractors.

Importantly, SBA is adopting a two-year transition period, until January 6, 2022, during which firms may choose to use either the current three-year calculation or the new five-year calculation. After January 6, 2022, all companies must use the five-year period of measurement in determining their size under a receipts-based calculation. PilieroMazza strongly advocated for a transition period before Congress and in its comments to SBA’s rulemaking.

This shift from using a three-year period to a five-year period for the average annual receipts calculation will affect all of SBA’s receipts-based size standards, though the change in calculation will not yet apply to the SBA Business Loan and Disaster Loan Programs, which will be handled in a separate rulemaking. SBA did not address in its rulemaking how SBA would view contractors that have been using the five-year period of measurement since the Runway Extension Act became law nearly a year ago.

If you would like to know more about these changes and their potential impact on your company, please contact a member of PilieroMazza’s Government Contracts Group.


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