Employee Count NAICS Code Changes from SBA

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© Michal Hubka

This is a guest post from Deltek’s GovWin IQ.

Deltek recently published an in-depth GovWin IQ analysis of the 2017 updates to NAICS code employee count size standards. SBA uses these standards to determine whether a business qualifies as a small business and is eligible for its set aside programs.

Here is a summary of those changes, reprinted with permission from the GovWin IQ report:

1. SBA increases small business size standards for NAICS Sector 31-33, Manufacturing

The SBA has issued a final rule to do the following:

  • Increase small business size standards for 209industries in NAICS Sector 31-33, Manufacturing.
  • Modify the size standard for NAICS 324110, Petroleum Refiners, by
    • increasing the refining capacity component of the size standard to 200,000 barrels per calendar day for businesses that are primarily engaged in petroleum refining; and by eliminating the requirement that 90percent of the output to be delivered be refined by the successful bidder from either crude oil or bona fide feed stocks.
  • Update footnote 5 to NAICS 326211 to reflect current Census Product Classification Codes 3262111 and 3262113.

SBA estimates that about 1,250 additional firms will become small because of revised size standards for the 209 industries in NAICS Sector 31-33.

2. SBA increases employee based size standards for industries in NAICS Sector 42, Wholesale Trade, and NAICS Sector 44 45, Retail Trade

The SBA has issued a final rule that:

  • Increases employee based size standards for 46 industries in North American Industry Classification System (NAICS) Sector 42, Wholesale Trade; Increases the employee-based size standard for one industry in NAICS Sector 44-45, Retail Trade; Retains the current size standards in the remaining industries in those sectors; Retains the current 500-employee size standard for Federal procurement of supplies under the non-manufacturer rule (13 CFR 121.406).

SBA reviewed all 71 industries in NAICS Sector 42 and two industries in NAICS Sector 44-45 that have employee-based size standards as part of its ongoing comprehensive size standards review as required by the Small Business Jobs Act of 2010.

Nearly 4,000 more firms in Sectors 42 and 44-45 will become small and therefore eligible for financial assistance under the revised employee based size standards. These revisions do not affect federal procurement programs. Newly eligible small businesses will generally benefit from a variety of Federal regulatory and other programs that use SBA’s size standards. Such benefits may include, but are not limited to, reduced fees, less paperwork, or exemption from compliance or other regulatory requirements.

3. SBA updates employee-based small business size standards for industries that are not part of Manufacturing (NAICS Sector 31-33), Wholesale Trade (NAICS Sector 42), or Retail Trade (NAICS Sector 44-45)

The SBA has issued a final rule to modify employee-based small business size standards for 36 industries and “exceptions” in SBA’s table of size standards that are not part of NAICS Sector 31-33 (Manufacturing), Sector 42 (Wholesale Trade), or Sectors 44-45 (Retail Trade). Specifically, the rule

  • Increases 30 size standards for industries and three “exceptions.”
  • Decreases size standards from 500 employees to 250 employees for three industries, namely NAICS 212113 (Anthracite Mining); NAICS 212222 (Silver Ore Mining), and NAICS 212291 (Uranium-Radium-Vanadium Ore Mining).
  • Maintains the Information Technology Value Added Resellers (ITVAR) “exception” under NAICS 541519 (Other Computer Related Services) as follows:
    • It retains the 150-employee size standard; and it amends footnote 18 to SBA’s table of size standards by adding the requirement that the supply component of small business set-aside ITVAR contracts (e., computer hardware and software) must comply with the nonmanufacturing performance requirements or nonmanufacturer rule.
    • Eliminates the Offshore Marine Air Transportation Services “exception” under NAICS 481211 (Nonscheduled Chartered Passenger Air Transportation), and NAICS 481212 (Nonscheduled Chartered Freight Air Transportation).
  • Eliminates the Offshore Marine Services “exception” for industries in NAICS Subsector 483 (Water Transportation), and their $30.5 million receipts-based size standards.
  • Removes footnote 15 (the “exception” to Subsector 483) from the table of size standards.

SBA estimates that about 375 additional firms may become small because of increased size standards for the 30 industries and three “exceptions” covered by this rule.

The revised size standards were effective as of February 26, 2016.

Source: SBA website; SBA’s final rule RIN3245-AG51 Regulations.gov (effective February 26, 2016)

This is essential information for small businesses looking to do contract work with the federal government. For more up-to-the-minute intelligence about the federal contracting landscape, check out Deltek’s GovWin IQ.


Restrictions for LPTA Procurements in NDAA FY17

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Contractors have complained for awhile about the government’s overuse of lowest-price, technically acceptable (LPTA) contracts. NDAA FY17 severely limits the use of LPTA evaluations in DoD procurements.

To use an LPTA methodology, the following criteria must now be met:

  • DoD is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;
  • DoD would receive little or no additional value from a proposal that exceeded the minimum technical or performance requirements set forth in the solicitation;
  • Little or no specialized judgment would be required by the contract selection authority to discern the differences between competitive proposals;
  • The source selection authority is confident the bids from the non-lowest price offeror(s) would not produce benefits of additional significant value or benefit to the Government;
  • The Contracting Officer includes written justification for use of the LPTA scheme in the contract file; and
  • DoD determines that the lowest price reflects full life-cycle costs, including costs for maintenance and support.

The NDAA also cautions against the use of LPTA for these three types of contracts:

  1. Contracts that predominately seek knowledge-based professional services (like information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, and audit or audit readiness services);
  2. Contracts seeking personal protective equipment; and
  3. Contracts for knowledge-based training or logistics services in contingency operations or other operations outside the U.S. (including Iraq and Afghanistan).

As a final tool to gauge compliance, Congress mandated that the DoD publish annual reports for the next four years that explain the rationale for all LPTA contracts exceeding $10 million.


New Small Business Prototyping Program in NDAA FY17

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The National Defense Authorization Act (NDAA) for fiscal year 2017 passed Congress and was signed by the President. As I shared in a previous post, there were several items affecting small business owners.

The Act establishes something called the “Nontraditional and Small Contractor Innovation Prototyping Program.” At SmallGovCon, Ian Patterson notes this is good news for small businesses looking to break into Department of Defense contracting.

The program, which is funded with $250 million from the rapid prototyping fund established by last year’s NDAA, is intended to “design, develop, and demonstrate innovative prototype military platforms.”

In addition, Congress authorized $50 million for some specific projects, including:

  • Swarming of multiple unmanned air vehicles
  • Swarming of multiple unmanned underwater vehicles
  • Unmanned, modular fixed-wing aircraft
  • Vertical takeoff and landing tiltrotor aircraft
  • Integration of a directed energy weapon on an air, sea, or ground platform
  • Commercial small synthetic aperture radar (SAR) satellites with on-board machine learning
  • Active protection system to defend against rocket-propelled grenades and anti-tank missiles
  • Defense against hypersonic weapons, including sensors
  • Other weapon systems the Secretary designates

“In addition to sounding like something out of a science fiction movie,” Patterson writes, “these categories provide insight into some of Congress’s (and DoD’s) prototyping priorities–particularly those in which small and nontraditional contractors are expected to be able to play an important role.”

If one of these projects is a fit for your company, take note!

The program is structured to run through September 30, 2026.


NDAA FY17 – What’s Ahead for Small Business

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The National Defense Authorization Act (NDAA) for fiscal year 2017 passed Congress and was signed by the President in December 2016.

The committee report passed both Chambers of Congress, resolving differences with the White House. According to Chairman of the House Small Business Committee Steve Chabot (R-OH), these common-sense contracting and acquisition reforms will open new doors for small businesses in the coming year and set the stage for additional reforms in the new Congress.

Here is a summary of what’s ahead for small business:

Small business goals and transparency

  • Amends the Small Business Act to ensure that the goals established by the Act are measured against the total contract dollars spent that year rather than allowing SBA to exclude up to 20 percent of all spending
  • Ensures that the goals established by the Act are measured against the total contract dollars spent that year rather than allowing SBA to exclude up to 20 percent of all spending
  • Amends the Small Business Act to require the SBA to annually share a list of regulatory changes affecting small business contracting with the entities responsible for training contracting personnel

Duties of the OSDBU and contracting officers

  • Rewords section 15(a) of the Small Business Act as plain English so that small businesses and contracting agencies will better understand the current requirements of the law
  • Amends section of the Small Business Act to remedy an internal SBA decision that prevents SBA’s procurement center representatives from reviewing consolidated contracts if the contract was set aside or partially set aside for small businesses, even if the acquisition strategy harmed the ability of small businesses to compete for contracts
    • Allows procurement center representatives (PCRs) to review those contracts, which should improve opportunities for small firms
    • This provision was amended to include contracts awarded and performed overseas as being exempt from small business goaling (this amendment covered a tiny fraction of contracts that weren’t otherwise already exempt)
  • Allows the Offices of Small and Disadvantaged Business Utilization (OSDBU) to review agency purchases made using government credit cards to ensure compliance with the Small Business Act
    • Last year that in one agency over $6 billion in such purchases were made without regard to statutory requirements
  • Increased micro-purchase threshold
    • The micro-purchase threshold will be $5,000, which is a $1,500 increase over all civilian agency thresholds
    • This allows agencies to purchase small ticket items without having to go to the time, trouble and expense of competitively bidding each purchase

Subcontracting

  • Ensures that subcontracting goals are accurately reported and implement GAO recommendations on how goals are set

Mentor-Protégé

  • Adds a new paragraph to the Small Business Act creating a pilot program that allows small businesses to apply for past performance credit for work performed as a first-tier subcontractor
  • Amends section 831 of National Defense Authorization Act for Fiscal Year 1991 to allow the Department of Defense to rely upon SBA’s Office of Hearings and Appeals to make size determinations

Small Business Innovation Research (SBIR)/Small Business Technology Transfer (STTR)

  • Institutes a 5-year SBIR/STTR reauthorization, instead of a yearly reauthorization
    • The extension of these programs to 2022 will prevent these popular programs from expiring

SDVOSB definitions unified

  • Unifies the definitions and regulations applicable to the government-wide and Department of Veterans Affairs-specific contracting programs for veterans and service-disabled veterans and moves appeals from the VA’s program to the Office of Hearings and Appeals at the SBA

Cybersecurity for small businesses

  • The conference report also includes a bill to provide cybersecurity resources to small businesses through Small Business Development Centers
    • This bill gives small businesses access to tools, resources, and expertise to help protect their sensitive electronic data from cyber threats
    • The bill calls for SBA and DHS to work with Small Business Development Centers to provide assistance to small businesses

New small business prototyping program

Restrictions for LPTA procurements

Stay tuned for further discussion!


Thoughts on the Incoming Administration

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As I write this post, we have a new administration that will be sworn in shortly. As you read this post, this has already happened. There is a lot more to come in terms of making sure all the cabinet positions get appointed and that people fill the government activities all the way down the line. This is obviously a big deal, since they have 4,000 positions to fill, and got 86,000 online applications and 4,000 referrals.

So in the meantime, I thought I would offer a few words for all of us to think about what we’re doing here. This new administration has established some specific priorities, and we can expect there will be as slight shift in priority from the civil sector over to homeland security and defense.

There may be some serious chaos as they get themselves sorted, get people in place, and get everything built. As with any major change, it’s bound to be unsettling and difficult. Probably the worst effect will be that the usual slippage in awards and RFP release that we ordinarily see in the federal procurement process will be exacerbated by the actual transition.

I’m convinced that overall this change can be very good for all of us in federal contracting. Although defense contractors and homeland security may do slightly better in the long run, there’s going to be a lot of activity across the board, and an uptick in that attention.

Interestingly enough, I had certainly hoped that the latest NDAA had done away with LPTA pricing (watch for future posts about what NDAA 2017 means for small business), but recent presidential direct intervention in cost overrun decisions on weapons systems tells me that we may see some LPTA activity erupt as everybody sorts out what this administration is looking for.

Hang in there, this is a natural course of events. There’s nothing unusual or worse about this group of folks from the last group of folks. And we’ll be doing this together. And I will keep blogging and tell you everything I can about what I know. And hopefully we’ll all prosper together.


Sole Source Contracts for Women-Owned Small Businesses

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As GSA Interact reported on their blog, several new FAR rules will impact small business.

According to the Federal Register, “DoD, GSA, and NASA have adopted as final, with a minor edit, an interim rule amending the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the Small Business Administration (SBA) that provide for authority to award sole source contracts to economically disadvantaged women-owned small business concerns and to women-owned small business concerns eligible under the Women-Owned Small Business (WOSB) Program.”

The Federal Register also notes that the rule puts the WOSB Program “on a level playing field with other SBA Government contracting programs with sole source authority and provided an additional, needed tool for agencies to meet the statutorily mandated goal of 5 percent of the total value of all prime contract and subcontract awards for WOSBs.” 

Of all the SBA contracting programs, the 8(a) set-aside rules were always the best for sole sourcing. Fundamentally, if a KO (contracting officer) was willing (at the program office’s behest) to accept/write a Justification and Approval (J&A), the sole source went through. As well, many times this same authority was extended to 8(a) companies on multiple-award vehicles, so that the covered programs could use the vehicle to do sole sourcing as well.

This new regulation and FAR/DFAR change creates a similar dynamic for EDWOSBs – which is huge, because there are many EDWOSB companies ready for this, and because the 8(a) sole sourcing has come under pressure, particularly after some of the issues that arose in large sole sourcing for Alaskan Native Companies (ANCs) and some less than ethical/legal behavior by companies trying to take advantage of the program. In fact, the 8(a) program seems to have largely been replaced with “small disadvantaged” status, much to the chagrin of many of my friends who have 8(a) status.

This is definitely a major change, considering the 328 EDWOSBs and 974 WOSBs who could have received sole source awards between April 1, 2011 (the implementation date of the WOSB Program) and September 1, 2015.


Consolidation and Bundling

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When federal agencies bundle or consolidate requirements, it can exclude small businesses from qualifying for the work. A new FAR rule effective October 31, 2016  (one of many that will impact small businesses) will address this.

According to the Federal Register, consolidation or consolidated requirement means “a solicitation for a single contract, a multiple-award contract, a task order, or a delivery order to satisfy:

i. Two or more requirements of the Federal agency for supplies or services that have been provided to or performed for the Federal agency under two or more separate contracts, each of which was lower in cost than the total cost of the contract for which offers are solicited; or
ii. Requirements of the Federal agency for construction projects to be performed at two or more discrete sites.

Bundling, they explain, is “a subset of consolidation that combines two or more requirements for supplies or services, previously provided or performed under separate smaller contracts, into a solicitation for a single contract, a multiple-award contract, or a task or delivery order that is likely to be unsuitable for award to a small business concern (even if it is suitable for award to a small business with a Small Business Teaming Arrangement) due to:

i. The diversity, size, or specialized nature of the elements of the performance specified;
ii. The aggregate dollar value of the anticipated award;
iii. The geographical dispersion of the contract performance sites; or
iv. Any combination of the factors described in paragraphs (i), (ii), and (iii) of this definition.

The summary notes that, “There are currently approximately 307,846 small business registrants that can potentially benefit from the implementation of this rule. This rule does not impose any new reporting, recordkeeping or other compliance requirements.”

OK, that’s a lot of technical and legal mumbo-jumbo. The essence here is a few different things. First, in their definition of small business teaming arrangements, this provision recognizes the Mentor-Protégé JV, Contractor Teaming Arrangements (CTAs), and normal JV provisions for use in a contract bundling provision. This is important because often JVs and CTAs are considered “higher risk” in large contract actions, and this provision both defines the various potential arrangements and encourages them.

And secondly, this provides more detail and restrictions to the contract bundling and consolidation routine that so many agencies go through, and which serve as an anti-small business process because of the size of the resulting requirement. This provision explicitly recognizes the small business team types as being valid and therefore limits some of the anti-small business prejudice that becomes prevalent.

As small businesses, we’d like as little consolidation and bundling as we can get. Since this rule better defines how the government can do this, and limits who can do it and how, there will be less of it, and that’s a good thing.


Your Federal Contracting Pipeline – No, It’s Not the Keystone

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Any company that is just trying to stay in business and “keep on, keeping on,” will not be profitable in the long run. When you really think about it, you know contracts will end and you will have to move on – what is your plan to replace those contracts?

The process for this is to have a pipeline of potential income. Think of your pipeline like a funnel. At the outer edge up at the top it’s very wide, because at first glance there are always many possibilities. That’s why the first and most important step is qualification, that is to ask:

  1. Does this customer have money?
  2. Does this customer have a problem that we can solve?
  3. Does the customer know that our company can solve their problem?

If you can answer those questions with yes, then you try and capture the work, which is to say shape it so that you are more qualified than other potential competitors (your OSDBU office may be able to help). Thereby (through this capture) you learn the things you need to do to bid successfully.

You always want your pipeline to be full at every level, so there is a mix of some opportunities you’re qualifying, some stuff you’re capturing, and some proposals you’ve already written and sent, that may or may not come to pass in various time frames. Flexibility is essential, as new things come along that may bump aside a well-qualified, or even well-captured opportunity.

So your pipeline will be filled not with oil or gas, but with a continuum of opportunities. Some might not become proposals for a year or even more from now, some things you might start writing in the next three or six months, some things you’re writing now, and then things you’re waiting for awards on.

The most important question is how to fill the top of the funnel. Of course we’ve talked many times about how relationships with the people you already know are the heart of your capture process. Even if a customer doesn’t have more work, they have friends in other agencies and contacts in other places they work for.

But your own contacts can only get you so far; sometimes you also need outside help. Along with proposal consultants, you can also hire people just to do the research and uncover new potential customers for you. There are always opportunities that you’re not going to hear about that these people will uncover.

Now if you’re only pursuing opportunities from these data sources, you’re probably not mining your own customers enough. You really need to determine if such a service would be worthwhile for you to have, and if the benefits outweigh the costs.

Having a full pipeline means when one contract ends, you don’t have to worry where the next job is coming from. The capture process for that one, and many others, is well under way.


What the Kingdomware Ruling Means for SDVOSBs

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Department of Veterans Affairs is required by law to award contracts to service-disabled veteran-owned small businesses when there is a reasonable expectation that two or more such concerns will bid for the contract. This has become known as the “Rule of Two” or “Veterans First.”

Yet there were many large-scale contracts that the VA department didn’t open up to this rule because they were traditionally things that they would not have set aside or acquired on a small business scale.

As Steven Koprince explains at SmallGovCon.com, “Despite the absence of a statutory exception for GSA Schedule orders, the VA has long taken the position that it may order off the GSA Schedule without first applying the VA Act’s Rule of Two.”

After a lengthy court battle that went all the way to the United States Supreme Court, the folks from a company called Kingdomware successfully sued the VA and won; in fact they won unanimously.

This effectively changes the rules of engagement for the VA so that they’re going to have to do a sources sought to determine whether there is a reasonable expectation that SDVOSBs can meet the requirements of the contract, and that there are qualified businesses who can do the job.

Interestingly enough, some things that are in IDIQ contracts may be exempt from this requirement – large IDIQs with both large businesses and SDVOSBs, or other small business types, may allow the VA to procure directly with the large businesses of a task order competitive basis.

But there are still going to be a lot more service-disabled sources sought directed at procurements for small businesses. It may very well be that the outcome will be the same, but we don’t know. What we do know is that SDVOSBs will have access to more work.

Let’s say there is a piece of work that traditionally would have been done full and open (not set-aside for specially certified businesses), or would have been done by an 8(a) or another small business type. Now, for that same piece of business the VA will have to determine whether two or more SDVOSBs will be qualified and will bid. There’s no guarantee, but at least it’s more likely the work could go a service-disabled vet.


NDAA FY2016 and Small Business – Part Three

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To complete what we started in Part One and Part Two, let’s take a final look at how FY2016 NDAA could affect small businesses.

Section 866 – Modifications to requirements for qualified HUBZone small business concerns located in a base closure area

This section provides an equivalency between HUBZone firms and Native Hawaiian firms, which helps the NHSBs to expand into HUBZone contracting. To date, meeting HUBZone goals is the most difficult set-aside category.

This section also does some definitional changes that make BRAC (Base Re-alignment and Closure) areas more easily designated as HUBZones, this is a good thing, as base closure areas from BRAC decisions are always particularly hard-hit.

Section 867 – Joint venturing and teaming

So this section is a big deal, and as the details emerge, we’ll address this. First, the specifics are that joint venture team members’ past performance will count when pursuing certain large contracts. And it expands the use of JVs to expand the number of areas where SBs are acceptable.

If implemented as described, this is a big change. Currently, only certain JVs inherit the past performance from their members. If this is implemented as written, we’ll be able to use JVs a lot better in the future.

Section 868 – Continued modification to scorecard program for small business contracting goals 

The scorecard program is, quite frankly, somewhere between a joke and unfathomable. Agencies with major deficiencies still receive A’s, and small differences seem to generate larger effects.

Could this be because the grades affect government officials’ bonuses? We certainly don’t want those to be affected (sorry, tongue-firmly-in-cheek).

Section 869 – Establishment of an Office of Hearings and Appeals in the Small Business Administration (SBA); petitions for reconsideration of size standards

This is a technical detail, which separates a way to have size standard appeals to prevent these from going to courts instead. It also allows this office to review the size determinations. There have been a lot of complaints over the years that SBA keeps sizes smaller than really appropriate.

Section 870 – Additional duties of the Director of Small and Disadvantaged Business Utilization

If an OSDBU is a strong advocate, this helps by empowering them to help an SB work on SB set-aside status for an opportunity.

Section 871 – Including subcontracting goals in agency responsibilities 

It is always a good thing to have all small business goals in the evaluation criteria for success by agency executives. This provision adds goals to agency-level responsibilities.

Section 872 – Reporting related to failure of contractors to meet goals under negotiated comprehensive small business subcontracting plans 

This is essentially “tattling” on the big integrators – and requiring actual accountability. Accountability is always a good thing, but be wary because you’re complaining about your prime contractor. But when aggrieved, this may be a strong avenue.

Section 873 – Pilot program for streamlining awards for innovative technology projects 

Pilots for awarding contracts to non-contractors might be good, but this can lead to abuse. As small businesses we’re always wary of “special deals.”

Section 874 – Surety bond requirements and amount of guarantee 

A surety bond is a promise given to one party to pay a certain amount if the second party fails to meet the terms of a contract. Surety bonds are mostly used in construction.

For more details about the FY2016 NDAA, see the full text or this summary.


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