This is a guest post by Staci L. Redmon, President and CEO of Strategy and Management Services, Inc. (SAMS).
Sometimes it’s said that Amazon is the only truly modern organization. Because it was founded on the Internet and never had the traditional limitations of a brick-and-mortar business, it could afford to develop and fully embrace technological innovation when it came.
Most of us aren’t Amazon. There are limitations on how much contractors can adapt to technology or use it effectively – and that’s okay. But as federal IT spend increases, businesses in the public sector are called upon to take stock of their organizational structure, highlighting areas where innovation and better planning can make a difference.
Here are five of the most common struggles we have identified in our clients:
1. Too much data, not enough insight
Today, organizations are swamped in data from multiple sources, including IoT, CRM, web analytics, social media and more. 73% polled say they struggle to use it effectively.
Why it hurts
In the first place, contractors are paying for everything they collect, and they’re paying even more to store it. Second – even if they forego collection altogether – they miss out on the many insights that data can provide.
How to fix it
Using data effectively requires two steps:Efficient collection and storage, such as cloud, hybrid cloud
- Efficient collection and storage, such as cloud, hybrid cloud or data lakes
- An analytics strategy to extract useful information
An analytics strategy to extract useful information
The best data strategy will vary from business to business, requiring human expertise for optimization and refinement.
2. Deprecated systems
We know that technology changes at the speed of light. When organizations get used to a certain workflow, they often stop moving forward and systems become outdated. As a result, some U.S agencies are still depending on Windows 3.1 and floppy disks.
Why it hurts
80% of IT professionals say that outdated tech holds them back. Customers and clients will move forward even when a business does not, thereby slowing down operations, creating customer experience (CX) issues, and lowering productivity in the workplace.
How to fix it
Systems must be updated on a periodic basis to prevent disruption, ensure continuity of operations, and lower expense. Having an enterprise IT strategy and C-level tech officers ahead of time will significantly reduce blind spots.
3. Technical debt
When contractors fail to adopt new technologies, they accumulate “technical debt,” an abstract measure of the expenses they will inevitably have to pay as a result.
Why it hurts
While a business lags behind, it exponentially loses ground in terms of potential profit; it also loses market share to competitors who modernize in the same time frame. Technical debt is thus more costly than an initial investment in new technology.
How to fix it
Organizations must stay ahead of technical trends to avoid debt and minimize future expenses. However, that does not mean they should invest in every new trend – research, strategy and careful observation should inform all business transformation efforts.
4. Underutilized assets
Contractors are often unaware how much they can accomplish with a single solution; both software and hardware are underutilized, and features go ignored.
Why it hurts
Underutilization leads to redundant costs, as businesses invest in multiple solutions which they could consolidate into one. Given power, training and licensing fees, the costs add up quickly.
How to fix it
Ideally, organizations will choose optimized solutions during the Enterprise Architectural Planning (EAP) phase which won’t call for redundant investments. Afterwards, they should consult with their vendors carefully to assess the extensible functionality of every asset they acquire.
5. Lack of expertise
According to a recent Gartner press release, talent shortage is emerging as the top risk for organizations in several categories – among them, cloud computing, data protection and cybersec.
Why it hurts
The majority of technological pain points result from a lack of technical executives or experts, leaving organizations vulnerable to their own mistakes, questionable investment decisions and attacks from the outside.
This issue is especially serious for government contractors who are often responsible for managing confidential data: regulations and auditing add an extra layer of risk for any careless decisions.
How to fix it
An organization should make sure that experts are involved in all the decisions it makes by:
- Hiring and retaining elite talent in every major area of their infrastructure
- Positioning one or more C-Level executives (CIO, CTO, CISO, etc.) to oversee continual development
- When all else fails, consulting with external experts for guidance and an outsider’s perspective
For peace of mind in an organization’s continual stability, nothing can rival regular assessments from those who know what they’re doing.
Planning for Longevity
In 2019, technology is the lifeblood of a business: it shapes client interactions, management, teamwork and productivity across the board. But while it may come with upfront costs, it pays in longevity and success for the long term.
As technology changes, a business must be prepared to change with it, and that means – among other things – enterprise-level planning, good investment strategy, and a dynamic organizational structure. Staying modern is hard, but not impossible for a contractor who always aims at improvement.
Staci L. Redmon is President and CEO of Strategy and Management Services, Inc. (SAMS), an award-winning and leading provider of innovative operations, management and technology solutions in a variety of public and private sector industries and markets. SAMS is based in Springfield, VA.
This is a guest post by Jonathan T. Williams and David T. Shafer of PilieroMazza PLLC.
The California Consumer Privacy Act (“CCPA”) will go into effect on January 1, 2020. Similar to the European Union’s General Data Protection Regulation (“GDPR”), CCPA creates significant compliance challenges for government contractors and commercial businesses doing business in California, with several states following suit. Under CCPA, fines from the Attorney General for businesses that do not comply could be as high as $7,500 per violation, with CCPA also granting consumers the right to bring private action, exposing companies to actual and statutory damages.
Preparing for CCPA
To prepare for CCPA’s January 1, 2020 effective date, first determine if you fall within CCPA’s compliance criteria. Critically, the statutorily defined terms “consumer” and “personal information” are far broader than most statutes and regulations. The enlargement of these terms causes CCPA’s jurisdiction to be larger than it appears on the face of the statute. Below are certain high-level questions that can help a business determine if it meets certain threshold standards:
- Do you, or any of your subsidiaries or affiliates, engage in business in California?
- Do you do business with contacts or employees who reside in California?
- Does your business have over $25 million in annual gross revenues?
- Does your business buy, sell, or receive personal information?
If you fit certain initial criteria, we recommend identifying the type of personal information your business collects. As briefly mentioned above, CCPA broadly defines personal information as any information that directly or indirectly identifies, describes, or can be reasonably linked to a particular consumer.
Similar to GDPR, CCPA grants consumers significant rights to the use or their personal information, including general notice rights. It is here that companies can take proactive steps to prepare for CCPA’s implementation. More specifically, CCPA grants consumers the right to know what personal information a business collects, sells, or discloses about them. Additionally, several sections of CCPA require businesses to make affirmative disclosures to consumers by way of privacy policies and other notices.
In addition to the various privacy policies that are required under CCPA, other reasonable steps include conducting regular training programs for employees, crafting tailored intellectual property rights contracts, and instituting third-party commercial contracts to ensure that CCPA’s requirements are adhered to.
Looking to the future
CCPA was originally drafted as a ballot initiative before being transitioned into a statute in a relatively short timeframe. Because of this, CCPA has already been through a series of amendments, with many more amendments still before the California legislature.
More and more states are slated to follow California’s lead, including Hawaii, Maryland, Massachusetts, Mississippi, Nevada, North Dakota, New Mexico, New York, Rhode Island, and Washington. If these states decide to enact similar legislation, it will have a far-reaching effect on government contractors and commercial businesses that conduct business in those regions. In light of GDPR, CCPA, and these recent developments, the possibility of federal legislation being enacted is high. Businesses should prepare now to preempt the potential impact.
Attorneys in PilieroMazza’s Cybersecurity & Data Privacy Group are well-versed in this area of the law, and will continue to monitor CCPA developments, as well as the litany of other states that are in various stages of implementing additional privacy statutes and regulations. For more information concerning CCPA, click here to contact them directly.
This blog post originally appeared on the PilieroMazza blog at https://www.pilieromazza.com/impact-of-california-consumer-privacy-act-on-government-contractors-and-commercial-businesses and was reprinted with permission.
This is a guest post by Reena Bhatia of ProposalHelper.
If you have any business with the Government, you are all too familiar with the proposal writing process. If you treat a proposal like a mini project, the rules are the same – plan, implement, monitor, control, and close-out. Why then do so many businesses (large and small) struggle through the proposal process? Why do so many companies suddenly forget what they do for a living and stress out their entire organization? The answer lies in the well-known trifecta – people, process, and tools.
The most common challenge businesses face – people. More precisely, a shortage of skilled people who (a) are not generating revenue for the company; (b) understand how to write to an RFx, and (c) are willing to work 18×7. Managing and writing a proposal takes a team, not one person. When I meet with potential clients, one of the common questions I get is, “why don’t we just hire one proposal manager instead of outsourcing?”
Companies can’t seem to figure out the right balance or the correct type of people to assign to a proposal. They either have one person doing everything or too many people who don’t know anything about proposal writing trying to battle their way through. Regardless of how small you think the proposal is, the skills required to work on it are diverse. Form and assign the right team and contrary to popular belief, we recommend you keep the proposal team small. Throwing bodies on a project doesn’t necessarily mean success.
The second challenge companies face is with their process. Building and submitting a proposal is not a mystery; it’s a process that can be learned, implemented, learned again, and continuously improved. Often we see companies who pick some industry-defined processes out of a textbook and force it as their own without really understanding resource limitations. Companies who are successful have a clear and flexible process that fits their organization.
Having a proposal process is great but remember if you assign the same writer to three different proposals at the same time, the process and therefore the proposal will fail. Your process should take into account resource availability and be flexible to utilize best what you need to succeed, not just what you have. Companies who succeed are not afraid to adjust their process to fit the magnitude of the RFx – adding or reducing resources and steps as necessary. Rigid processes add to the frustration levels and contribute to burn out. They most certainly don’t contribute to an increase in win ratios.
Finally, we get to technology. There is no silver bullet here, but one thing we are sure about, email and Google docs are not the best tools to use when it comes to managing proposals. There are some excellent platforms in the marketplace today that cater to the Government contracting and proposal industry. Whether you invest in a platform, build your own (because you can!), or stubbornly decide to continue emailing files, we advise that you define how the tool will be used, communicate your expectations with your proposal team, and then stick to it and most importantly, keep it simple.
Often companies start with all good intentions to use SharePoint or some other complicated platform but quickly break the pattern and begin emailing files because of the difficulty in using the tool and lack of control. As we have observed at ProposalHelper, senior executives are the biggest violators of process and use of selected tools because they cannot remember another URL or password and are too busy to bother with it. This sets the tone and culture of the proposal team, and very quickly we see others doing the same. This creates a lot of unnecessary confusion and adds to an already stressful situation. When it comes to tools for proposals, ProposalHelper says to KISS (Keep it Simple Silly!).
Companies need to start treating proposals like their revenue generating projects – assign the right team, implement the proper process that is fit for that proposal, and ensure consistent use of tools at every level – from the senior executive on down to the proposal team.
Reena is the Founder & CEO of ProposalHelper. The company started in 2010 with one employee and today has over 42 employees. She brings over 24 years of experience in global sales and US federal proposal management. Her background also includes planning and designing technical and management solutions, drafting technical proposal responses, and pricing strategy. Reena graduated with a Masters in Public Policy from University of Maryland, College Park and is currently pursuing her PhD in Information Systems.
This is a guest post by Haley Claxton of Koprince Law LLC.
In a move bringing to mind Etta James’ most popular refrain, SBA has proposed an amendment to its regulations which will require Woman-Owned Small Business program participants to be certified by the SBA or an SBA approved third-party certifier.
As we’ve talked about extensively on SmallGovCon (here, here, here, and here, to name a few), Congress and GAO have requested the SBA eliminate Woman-Owned Small Business program participant self-certification over and over again for the past few years. Most recently, GAO issued a report last month detailing ongoing issues with the SBA’s management of the WOSB program, due in part to SBA’s failure to eliminate WOSB self-certification in compliance with Congress’ 2015 National Defense Authorization Act. With these proposed amendments, SBA appears to have listened.
The proposed amendments are complex, so we’re focusing on the proposed initial certification processes for WOSBs in this post. Importantly, the proposed amendments outline two approved methods of WOSB certification: an entirely new Certification by SBA and a modified Certification by Third Party.
Certification by SBA
Certification by the SBA under the proposed amendments appears similar to the certification requirements of the 8(a) Business Development program, as well as Service-Disabled Veteran-Owned Small Business certification through the VA’s Center for Verification and Evaluation. Importantly, application is free! A woman-owned business may apply for SBA certification by accessing certify.sba.gov and submitting:
- information requested by the SBA under the amended regulation (and as required to demonstrate compliance with 13 C.F.R. subpart B) similar to that currently listed in 13 CFR § 127.300;
- if applicable, evidence demonstrating that it is a woman-owned business which is already a certified 8(a) participant, CVE-approved SDVOSB, or Disadvantaged Business Enterprise (authorized by the Department of Transportation); or
- if applicable, evidence that it has been certified as a WOSB by an approved Third Party Certifier (as discussed below).
After applicants submit an application, the proposed amendment requires the SBA to notify applicants whether their application is complete enough for evaluation within 15 days, and if not, indicate any additional information or clarification it needs to proceed. The proposed amendment also requires SBA to make its final determination within 90 days “whenever practicable.”
Whether the SBA approves or denies an application, it must notify the applicant in writing. If it denies an application, it must provide specific reasons for denial as well. Denied applicants may file a request for reconsideration within 30 days of the SBA’s denial decision and provide additional information countering the reasons the SBA provided for denial. The SBA may either approve the application in light of additional information, or deny it again on the same grounds or new grounds. The decision on reconsideration is SBA’s final decision, meaning there is no further appeal through SBA.
Certification by Third Party
Due to ongoing WOSB third-party certification practices, the SBA’s proposed amendments would still allow the SBA to approve third-party certifiers, either for-profit or non-profit entities, to certify WOSBs. Unlike SBA Certification, third-party certifiers would be permitted to “charge a reasonable fee” for certification, but only if certifiers also notify applicants that the SBA will certify for free. SBA plans to list approved third-party certifiers on its website, as before.
Under the amendment, to become a third-party certifier an entity will be required to submit a proposal to the SBA, which “will periodically hold open solicitations.” If the SBA determines that an entity’s proposal meets its criteria, “the SBA will enter into an agreement and designate the entity as an approved third party certifier.” This agreement will contain the minimum certification standards for the third-party certifier, which, for the most part, mirror the standards for SBA certification. Much of the proposed process for becoming a third -part certifier is similar to the current system, but includes more detail and mechanisms allowing the SBA to make sure certifiers keep coloring inside the lines.
To ensure that third-party certifiers continue to comply with requirements set by the SBA, the SBA’s proposed amendment would require third-party certifiers to submit quarterly reports to the SBA and allow the SBA to periodically review certifier compliance. If the SBA determines that a third-party certifier isn’t keeping up their end of the bargain, SBA may revoke its approval of the certifier.
Notably, unlike SBA’s various timelines for taking action on WOSB certification matters, the proposed amendment doesn’t include many regulations holding third-party certifiers to similar timelines (but that isn’t to say using a third-party certifier won’t be a speedier process than through SBA).
SBA is accepting public comments on the proposed amendment through July 15 of this year. After receiving public comments, SBA will hopefully move toward publishing a final rule quickly, at which time, WOSB self-certification will become a thing of the past.
This post originally appeared at SmallGovCon at http://smallgovcon.com/statutes-and-regulations/breaking-news-sba-finally-proposes-regulation-extinguishing-wosb-self-certification/ and was reprinted with permission.
As readers of this blog may know, we at SmallGovCon have been contributing to and reading Bill’s blog for a number of years. We wanted to inform you of some changes at our firm and our blog. Steven Koprince, the founder of Koprince Law LLC and SmallGovCon, has recently decided to move on from actively practicing law and he’ll also be stepping down as editor of our blog. For more information about the exciting things Steve has cooked up for his future plans (which will include working in the federal contracting sphere and slowing down a little), please read his post. We’ll definitely miss him, but he’ll continue to provide insight and guidance for the firm and SmallGovCon.
Rest assured, we will continue to be contributing important posts to Federalsmallbizsavvy.com on into the future. At SmallGovCon, we’ll continue to provide timely legal updates, easy-to-understand explanations, and lively commentary on the federal contracting realm. So, who’ll be taking over Steve’s duties as blog editor? Why, that would be me, Shane McCall. I’ve been practicing law since 2010, and I’ve really enjoyed the chance to flex my non-legal writing muscles some at SmallGovCon since joining Koprince Law. I’m looking forward to taking over the blog editing reins from Steve over the next month.
The other attorney-authors and I at SmallGovCon will continue to provide the latest and greatest in useful, easy-to-follow government contracting updates, with an emphasis on items important for small business contractors.
With that in mind, here are some things that we’ve commented on, but we’ll be watching closely and writing about more at SmallGovCon in 2019. Stay on the lookout for updates and commentary on these matters and many others.
- Small Business Runway Extension Act. Will Congress listen to the drumbeat of displeasure and amend the Act to remove the negative impact on those businesses that have had declining revenues by allowing businesses and SBA to run the numbers under both three-year and five-year look-back periods? Will the SBA listen to Congress and enforce the five-year lookback period for size-based receipts standards?
- Section 809 Panel’s Recommendations. We’ve written a lot and grumbled some about the Section 809 Panel’s advice, which, among many other things, ranges from eliminating most small business set-asides for DoD acquisitions to changing the “once 8(a), always 8(a)” rule. We also know that the Section 809’s panels advice has worked on some issues (read my update on changes to $1 coin regulations to maintain currency with the rules in this area). But it’s unclear how much sway the Panel will have over more substantial DOD procurement matters.
- Limitations on Subcontracting Updates. The limitations on subcontracting will undergo some major revisions in 2019, including a newly-effective DoD class deviation and the FAR Council’s long-awaited proposal for a comprehensive overhaul. These changes will clear up some of the confusion resulting from having different sets of rules for limitations on subcontracting found in the FAR and in the Small Business Administration’s regulations. But surely questions will remain.
We’ve enjoyed appearing as guest authors on Bill’s blog, and we’re glad to continue to do so. Please head over to SmallGovCon for updates on these hot-button issue for 2019, as well as many other topics.
Shane McCall is an attorney at Koprince Law LLC. He assists small businesses in navigating the federal government contracting world by advising on FAR and SBA issues. He regularly litigates bid protests, as well as size and status protests before the SBA. He assists with contract administration issues, including claims. Shane also drafts agreements including joint ventures, and subcontracts. Shane’s writing can be found at SmallGovCon, and he’s appeared in Contract Management magazine.
In late 2017, we wrote that the VA was considering using tiered evaluations to simultaneously 1) comply with the VA’s statutory Rule of Two (and Kingdomware), and 2) address situations in which SDVOSBs and VOSBs might not offer “fair and reasonable” pricing.
Since then, the VA has instituted the tiered evaluation process for certain solicitations, using one of three approaches:
- Tiered Evaluation for SDVOSBs and VOSBs only: Offers made by SDVOSBs are first evaluated. If no SDVOSB submits an offer, or none would result in a award at a fair and reasonable price, then the VA evaluates offers made by VOSBs. If none are submitted, or none would result in a fair and reasonable price, the solicitation is cancelled and resolicited.
- Tiered Evaluation for SDVOSBs, VOSBs, and small business concerns: This approach first evaluates SDVOSB and VOSB offers as described above. But if no SDVOSB or VOSB submits an offer (on none are submitted at a fair and reasonable price), then the VA evaluates proposals from other small businesses, with 8(a) participants and then HUBZone small business concerns being given priority over other small business concerns as required by 38 U.S.C. 8127(i). If none are submitted by these types of entities, then the solicitation is cancelled and then resolicited as an unrestricted procurement.
- Tiered Evaluation for SDVOSBs, VOSBs, small business concerns, and large business concerns: This approach first evaluates SDVOSBs, VOSBs, and small businesses as described above. But if no SDVOSB, VOSB, or small business submits an offer (or none would result in a fair and reasonable price), then the VA evaluates offers from large business concerns. If none are submitted, then solicitation is cancelled and additional market research is conducted to inform a follow-on acquisition strategy.
The VA justifies these tiered evaluation approaches because they may prevent procurement delays. For example, if VA uses a tiered evaluation approach that includes SDVOSBs, VOSBs, small business concerns, and large business concerns, the VA doesn’t have to reissue another solicitation if no SDVOSB or VOSB submits a reasonable offer.
Of course, the practice remains controversial because the tiered evaluation approach isn’t a true set-aside for SDVOSBs. Some argue, for example, that the VA could simply rule out SDVOSB or VOSB offers as not fair and reasonable based on more advantageous pricing offered by non-SBVOSB/VOSB small business concerns (or perhaps even large business concerns) for the same solicitation.
In addition, whether the tiered approach complies with the Supreme Court’s decision in Kingdomware has been an open question–until now. Indeed, a recent case from the Court of Federal Claims supports VA’s use of a tiered evaluation scheme for procurements.
In Land Shark Shredding, No. 18-1568C (Fed. Cl. Mar. 21, 2019), the VA issued a solicitation for a firm, fixed-price FSS contract for on-site document shredding and pill bottle destruction for VA facilities in Florida. The solicitation noted that it was “a Service Disabled Veteran Owned Small Businesses (SDVOSB) set-aside with Small Business Set-aside using a tiered or cascading order of preference.” The tiers of preference were as follows: SDVOSBs, then VOSBs, then all other small businesses, then all other businesses. (In essence, it followed the third approach described above.)
Three offerors submitted proposals: Land Shark (an SDVOSB), a non-SDVOSB small business, and a large business. The SDVOSB’s price was $2.8 million, while the small business’s price was $474,000 (the large business’s price was somewhere in between the two). The small business’s price was closest to the VA’s independent government cost estimate of $490,000. Ultimately, the small business was awarded the contract.
In its protest, Land Shark raised several arguments. Here we’ll focus solely on protester’s two arguments relating to the VA’s tiered evaluation scheme.
First, Land Shark argued that the VA erred by comparing its price to other non-SDVOSB offerors. In Land Shark’s view, this process violated the holding in Kingdomware. In response, the VA argued that because the comparison of quotes was a methodology established by the solicitation, Land Shark should have raised the issue in a pre-award protest.
The Court did not decide whether the protest was untimely, but went right to the merits. In doing so, the Court found that the Kingdomware doesn’t address price comparisons or instruct the VA how it should determine that an SDVOSBs price is fair and reasonable. Specifically, the Court held:
The court agrees with the government that plaintiff has not cited any authority which supports its position. Kingdomware does not address price comparisons, in general, or the specific question of how the VA should determine that a SDVOSB’s prices are fair and reasonable. The Federal Acquisition Regulation (FAR) provision cited by plaintiff is a policy statement that does not regulate procedures for the price evaluation of proposals in procurements such as this one. In sum, plaintiff objects to the price comparison conducted by the VA here because it does not do enough, in plaintiff’s view, to secure government contracts for SDVOSBs. That is a policy argument, unmoored from statute or regulation. Without more, that policy argument is an insufficient ground for this court to invalidate a procurement decision of a federal agency.
Second, Land Shark attacked the use of tiered evaluation process head on. In part, it argued that the process violated the Rule of Two and Kingdomware.
But again, the Court was unconvinced and found that the VA did not violate the Rule of Two:
The VA in this procurement conducted a Rule of Two analysis, as required by Kingdomware, but the VA did not find that this procurement could be entirely set aside for veteran-owned businesses. . . . As defendant notes, the solicitation clearly indicated that, in addition to veteran-owned small businesses and SDVOSBs, small businesses and large businesses were welcome to apply. . . . The court sees no violation of Kingdomware in the agency’s Rule of Two analysis, its use of a cascading system of preferences placing SDVOSBs in the first tier, or in the selection of [the small business] as contract awardee.
While this decision certainly lends support to the VA’s use of a tiered evaluation procurements, it isn’t a wholesale endorsement. The analysis may have been different if Land Shark had, say, offered a fair and reasonable price (the Court found that its price was not fair and reasonable) or, perhaps, if Land Shark had leveled a better-advocated attack against the practice in the context of a pre-award protest (which would have concentrated purely on the legal validity of the tiered evaluation process without the distracting factual issue of fair and reasonable prices).
That said, the decision overall favors the VA. Another challenge–hopefully one that is better planned and executed–will likely arise later. But for now, the VA is unlikely to change course. So expect to see the VA’s continued use of the tiered evaluation scheme in, at least, the near future. If anything changes, we’ll be sure to let you know.
This post originally appeared at http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/court-of-federal-claims-decision-lends-support-to-vas-sdvosb-tiered-evaluation-scheme/ and was reprinted with permission.
This is a guest post by Steven Koprince of SmallGovCon.
An offeror submitting a proposal under a solicitation designated with the Information Technology Value Added Resellers exception to NAICS code 541519 must qualify as a small business under a 150-employee size standard–even if the offeror is a nonmanufacturer.
In a recent decision, the U.S. Court of Federal Claims held that an ITVAR nonmanufacturer cannot qualify as small based solely on the ordinary 500-employee size standard under the nonmanufacturer rule, but instead must also qualify as small under the much smaller size standard associated with the ITVAR NAICS code exception.
By way of background, NAICS code 541519 (Other Computer Related Services) ordinarily carries an associated $27.5 million size standard. However, the SBA’s regulations and size standards table state that an ITVAR procurement is an exception to the typical size standard.
An ITVAR acquisition is one for a “total solution to information technology” including “multi-vendor hardware and software, along with significant value added services.” When a Contracting Officer classifies a solicitation with the ITVAR exception, a 150-employee size standard applies.
ITVAR acquisitions, like others under NAICS code 541419, were long deemed to be service contracts; the nonmanufacturer rule did not apply. But in a recent change to 13 C.F.R. 121.406, the SBA specified that the nonmanufacturer rule applies to the supply component of an ITVAR contract.
When is a nonmanufacturer small? The SBA’s rules are not entirely clear. 13 C.F.R. 121.402(b)(2) states that a company that “furnishes a product it did not itself manufacture or produce . . . is categorized as a nonmanufacturer and deemed small if it has 500 or fewer employees” and meets the other requirements of the nonmanufacturer rule. But 13 C.F.R. 121.402(a) also states that an offeror “must not exceed the size standard for the NAICS code specified in the solicitation.”
So, for an ITVAR acquisition, which size standard applies to a nonmanufacturer: 150 employees or 500? According to the Court, the answer is “both.”
York Telecom Corporation v. United States, No. 15-489C (2017) involved the solicitation for the NASA Solutions for Enterprise-Wide Procurement V GWAC. The procurement was divided into several groups. The group at issue in this case (Category B, Group C) was a small business group. NASA designated the category with the ITVAR exception to NAICS code 541519.
The solicitation included FAR 52.212-1, which provided, in relevant part:
INSTRUCTIONS TO OFFERORS –
COMMERCIAL ITEMS (52.212-1) (JUL 2013)
(a) North American Industry Classification System (NAICS) code and small business size standard. The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees.
York Telecom Company submitted an offer for Category B, Group C. After evaluating proposals, NASA awarded a contract to Yorktel. But NASA developed concerns about Yorktel’s size, and referred the matter to the SBA for a size determination.
In its size determination, the SBA Area Office concluded that the applicable size standard for the procurement was 150 employees. Because the SEWP V solicitation had been issued before the changes to 13 C.F.R. 121.406, the SBA Area Office concluded that the nonmanufacturer rule did not apply. The Area Office issued a decision finding Yorktel to be ineligible under the solicitation’s 150-employee size standard. The SBA Office of Hearings and Appeals upheld the SBA Area Office’s decision.
Yorktel took its case to the Court. Yorktel argued that it was a nonmanufacturer, and therefore, its size was governed by a 500-employee size standard–not the ordinary 150-employee ITVAR size standard.
After addressing various procedural issues such as jurisdiction and standing, the Court concluded that Yorktel’s protest was an untimely challenge to the terms of the solicitation. The Court dismissed Yorktel’s protest for this reason.
Interestingly, though, the Court didn’t stop there. It wrote that “even if Yorktel could pursue its challenge of the size standard for the SEWP V Contract in this litigation, this claim is unsupported by the terms of the RFP and the statutory nonmanufacturer rule.”
Discussing FAR 52.212-1(a), the Court wrote:
When read in its entirety, the Court construes the above provision to require that a non-manufacturer first meet the 500 employees or less size standard to compete for the contract and to also impose the more restrictive size standard of 150 employees or less under the NAICS code in order for the non-manufacturer to be eligible for contract award. And so, to the extent that Yorktel qualifies as non-manufacturer under the statutory non-manufacturer rule, the RFP requires that Yorktel meet the more restrictive, 150-employee, size standard to be eligible for contract award.
The Court wrote that its interpretation was buttressed by the Small Business Act, which (in 15 U.S.C. 637(a)(17)), specifies that a nonmanufactuer must “be a small business concern under the numerical size standard . . . assigned to the contract solicitation on which the offer is being made.” The Court concluded that “the statutory non-manufacturer rule, thus, requires that an offeror seeking coverage under the rule satisfy the size standard imposed by the NAICS code for the relevant contract.”
The relationship between the nonmanufacturer rule’s 500-employee standard, on the one hand, and the size standard imposed by a solicitation, on the other, was previously a question merely of academic interest (and then, only to true government contracts law nerds like yours truly.) That’s because almost all of the size standards for manufacturing and supply contracts are 500 employees or greater; it would be no problem for a nonmanufacturer to satisfy the solicitation’s size standard.
In contrast, the ITVAR size standard is much lower than 500 employees. Now that the SBA has amended its regulations to specify that the nonmanufacturer rule applies to the supply component of ITVAR contracts, the Court’s decision in York Telecom Corporation may have major ramifications for other ITVAR nonmanufacturers.
A note from Bill: From our perspective, smaller is always better. We want big revenue numbers and small employee numbers. The important thing is that employee number standards allow you to have subcontractors, those employees don’t count against my employee limit, even though I still have the revenue. That helps us stay smaller, longer, and we like that.
This post originally appeared at http://smallgovcon.com/statutes-and-regulations/itvar-nonmanufacturer-subject-to-150-employee-size-standard-court-says/ and was reprinted with permission.
“The supreme art of war is to subdue the enemy without fighting.” – The Art of War by Sun Tzu
When we talk about the goals of federal business development and capture management at our Bid & Proposal Academy training courses, we pragmatically reduce them to only five:
- Identify opportunities to bid on
- Eliminate competition
- Reduce competition if you can’t eliminate it
- Get the government customer excited about receiving your proposal
- Make it a goal to produce a usable proposal artifact at every step of the capture process, so that writing a winning proposal is a slam dunk.
Goal 2, Eliminate competition, refers to sole source awards. In their simplest form, sole source awards are modifications to add scope to your existing contracts. It works like this: the government has a problem and comes to you. Your technical and BD people meet with the government to discuss the solution and find a contract vehicle to route the work to.
The government issues the modification, and you’ve won new business won without a fight. Both the government and you save a headache and money while getting great value.
The more complex form of sole source awards is getting your firm under a new contract without competing. We‘ll discuss them below, as well as the pending rule changes that are about to make life a bit easier for socioeconomically disadvantaged small businesses.
When can you pursue a sole source award?
We’ve already talked about sole source awards at the end of the federal fiscal year. Sole source awards increase during that time. This allows government entities to make the most of their remaining budgets. This is the simplest and fastest way for the government to navigate through the “use it or lose it” budgetary conundrum.
You can also get sole source awards from your current government customers at any time of the year, provided that the conditions are right. Sole source awards have to fall under one of the seven authorities laid out in the Federal Acquisition Regulation (FAR).
- There is only one responsible source and no other supplies or services will satisfy an agency’s requirements.
- Unusual and compelling urgency
- Industrial mobilization; engineering, developmental, or research capability; or expert services
- International agreement
- Authorized or required by statute
- National security
- Public interest
Many sole source opportunities are awarded under Authorities 1 and 2.
In Authority 1, your company is the only one who can provide a particular product or service, and full and open competition would just result in the contract being awarded to you anyway.
Authority 2 work results from an emergency situation such as a war effort, or a sudden natural disaster for which there is no multiple award contract vehicle that covers that specific scope of work.
What about 8(a), SDVOSB, HUBZone, and WOSB/EDWOSB sole source awards?
These awards fall under Authority 5 listed above. It states that some contracting awards are only available to small businesses who participate in the Small Business Administration’s contracting assistance programs.
Sole source awards have monetary limits. Currently, the limits for socioeconomically disadvantaged businesses such as 8(a) business are $4 million for services and $6.5 million for manufacturing. The exceptions to that are Alaskan Native Corporations (ANC) and Native American Tribal Entities (“super 8(a)s”). They can receive sole source awards for $22 million, and even higher with justification.
Changes may be coming to special sole source award thresholds in 2019
The House of Representatives recently passed a bill (H.R. 190) referred to as “Expanding Contracting Opportunities for Small Business Act of 2019”. On January 17, 2019, the Senate sent the bill to the Committee on Small Business and Entrepreneurship. The last roll call vote was 415-6 in the House, so there is clear bipartisan support.
The majority of these changes would impact 8(a)s, Service-Disabled Veteran-Owned Small Businesses (SDVOSB), Women-Owned Small Businesses, and HUBZone businesses.
Specifically, H.R. 190 would change the award price calculation requirements. H.R. 190 removes the requirement for option years to be included in the award price. That means contracting officers could price the award at just the base period of the contract.
Let’s do the math. If the initial year of the contract is valued at $4 million for services, but the contract includes four 1-year options also valued at $4 million, the overall value of the awarded contract would be $20 million – much closer to the super-8(a) $22 million threshold.
It used to be that $4 million was the total value of the contract, and now it’s just the projected maximum award price for the initial year. Under the current law, a sole source award of this amount wouldn’t be possible. Let’s see if this is how this law will be implemented.
The bill would also increase the sole source manufacturing threshold from $6.5 million to $7 million for all socioeconomically disadvantaged small business types, along with other changes.
A note about sole source awards
Finally, your customer may not come to you when they have room in their budget and need the work done. It’s up to you to anticipate their needs and act. This is when being in tune with your customer’s requirements comes into play. You may have opportunities to suggest sole source contracts as solutions to your customer’s pressing needs. If you’ve trained your project personnel to report back with any needs your government customer has, you’ll be in a great position to take advantage of small (or not so small) opportunities like these.
If you need to sharpen your business development skills to grow your small federal contracting company, we recommend you attend our Foundations of Federal Business Development course or consider getting the Blueprint for Federal Business Development for self-paced study.
Olessia Smotrova, CF.APMP Fellow, is the president of OST Global Solutions, Inc., a federal business development consulting and training company. She has 21 years of experience in government business development, winning more than $20 billion in funded contracts. She is the author of How to Get Government Contracts: Have a Slice of $1 Trillion Pie. Prior to founding OST, she developed business for Raytheon and Lockheed Martin, and wrote for the Financial Times of London.
This is a guest post by Judy Bradt of Summit Insight.
Judy Bradt has surveyed federal contractors about their top business challenges since 2012. Her company, Summit Insight, provides business training, sales plans and mentorship to grow your federal business.
Early results from her 2019 survey show that the number one challenge to landing millions in federal wins is “getting in front of federal buyers.”
Is that true for you?
Tackle that one problem, and 2019 could be your best federal year ever.
Judy says, “There are five steps you can start taking today to get in front of your federal buyer and build the trust to become their first choice next time they are ready to buy.” Here are those steps:
1. Hot wash
A year-end hot wash is where you look at the process, patterns and outcomes of the year, along with lessons learned. What worked, what didn’t, and what’s promising? This gives you a foundation for what’s next.
Sample areas to check are:
• Data: Plan versus actual
• Marketing: Keep/change/drop
• Intelligence: Where wins came from
• Strategy execution improvement
• Win rate and profit
• How can buyers get to us?
Look back at who is winning the contracts you’ve lost. Doing a competitive analysis lets you create opportunities.
• Research players and layers
• See who they love
• Know how they behave
• Start with who you know
• Solve their problem
• Start small. Be persistent
3. Lower risk
Low risk attracts buyers when you can leverage your past performance. Do this by collecting:
• Business process data: systematic capture
• Summary table
• Key case studies
• Examples for tailored capability statements
4. Make it easy
Make it easy for them, with micro-purchase options, simplified acquisition, and by using their favorite vehicles.
Make is easy for you by using these tips for writing winning proposals:
• Better bid/no bid criteria
• A streamlined proposal process
• Mitigate risk
• Write like a pro
• Prevent fatal errors
5. Launch FY19 NOW
• Clean up your collateral like your core capabilities list and certifications
• Refresh your profiles with the Federal government, including GSAAdvantage, System for Award Management, and Dynamic Small Business Search; on state government vendor sites; small and minority certifications (federal, state, local, and commercial supplier diversity); prime contractor portals; social media (e.g. LinkedIn, Twitter, Facebook); and industry association member profiles
• Purge your pipeline (let go the stuff that you’ve realized are long shots you never had a hope of winning)
• Update and organize your contact lists
• Give gratitude by writing thank you letters to everyone who helped or spent time with you in 2018
For more guidance from Judy on how to make FY19 your best year ever, download her complimentary Federal Q1 Launch Checklist, FYE 2018 Edition at http://growfedbiz.com/Q1 (email subscription required).
Judy Bradt, Summit Insight’s founder, brings you 30 years’ experience working with more than 7,000 clients across diverse industries who credit her expertise in achieving wins worth in total over $300 million dollars. In addition to offering free monthly public webinars on federal contract success and high-value public and private training classes, Judy is the Vice President for Education and Training for the National Veterans Small Business Coalition.
This is a guest post by Matthew Schoonover of SmallGovCon.
As Matthew Schoonover reported in a previous post on this site and at SmallGovCon, the SBA has amended its eligibility rules for SDVOSBs. These rules provide important clarity into SDVOSB eligibility going forward.
He explained how the new rule addresses an ongoing conflict between different standards of control that meant a company could be an SDVOSB under the VA’s regulations, but not the SBA’s.
- The new rule also makes important changes to the ownership requirements for an SDVOSB. Among them:
For partnerships, the new rule says that the service-disabled veteran must unconditionally own at least 51% of the aggregate voting interest (rather than at least 51% of every class of partnership interest);
- The new rule clarifies that the SDVOSB’s service-disabled veteran owners must receive at least 51% of the company’s annual distribution of profits and that the ability to share in profits must be commensurate with the veteran’s ownership interest;
- The new rule doesn’t count stock held by ESOPs in the 51% ownership requirement—but only for a “publicly owned business,” which doesn’t apply to the vast majority of SDVOSBs;
- Community property laws will be disregarded in determining compliance with the 51% ownership requirement, a welcome change for veterans living in certain states, who have long been forced to ask their spouses to sign legal documents disclaiming their community property rights;
- The new rule says that that veterans must be able to overcome any supermajority voting requirements and requires verified SDVOSBs to inform the VA of any new supermajority voting requirements adopted after verification;
- The veteran holding the company’s highest officer position generally must be the highest compensated under the new rule—a requirement that’s existed in the VA regulations for many years, but not the SBA’s old regulations; and
- The new rule essentially adopts the VA’s surviving spouse ownership regulation, which allows the veteran’s spouse to take ownership of the SDVOSB upon the veteran’s passing (if certain requirements are met).
If some of these provisions sound familiar, it’s because many of the “new” SBA rules are similar to, or in some cases essentially identical to, existing VA regulations. For some veterans, who may have hoped that using the SBA’s regulations would eliminate some of the more cumbersome VA requirements, the SBA’s adoption of these requirements may be disappointing.
But all-in-all, these new rules bring important clarity to the SBA’s SDVOSB ownership and control requirements. While we can certainly quibble with some of the substantive requirements, it’s important for everyone to understand exactly what a program like the SDVOSB program allows (and doesn’t allow). The SBA’s SDVOSB regulations have long been rather vague—so vague, in fact, that in some cases the SBA’s own Administrative Judges have resorted to using the 8(a) Program regulations to evaluate certain aspects of SDVOSB compliance. Whether one agrees or disagrees with a particular requirement, it’s better to know that it exists, instead of being caught off guard during a protest, when a contract is at stake.
One thing I didn’t directly see addressed, however, is the SBA’s prohibition on rights of first refusal for the veteran’s ownership interest. It’s possible that the “extraordinary action” of allowing a new equity stakeholder would cover a standard right of first refusal, but it would be best to see how the SBA interprets this rule before jumping to conclusions. As Steve noted in his post earlier this week, SDVOSBs and VOSBs should continue to be leery against including any right of first refusal in their ownership documents.
One final note: as Steve wrote about back in April, SDVOSBs and VOSBs have new protest and appeal rights, which also kick in October 1. Among those rights, if a company’s SDVOSB verification application is denied, or its verified status is cancelled, the company can appeal to the SBA’s Office of Hearings and Appeals.
We’ll keep you posted on the implementation and interpretation of these new regulations. In the interim, please give us a call if you have questions about SDVOSB eligibility.
This article was originally published at http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/new-sba-rule/ and was reprinted with permission.