We’re continuing our look at several new SBA provisions that were announced in December 2018. Sam Finnerty of PilieroMazza wrote an excellent explanation of each change, and here we’ll look closer at some revisions pertaining to LOS (limitations on subcontracting) compliance.
Now these are a somewhat arcane set of issues. The bottom line is that the prime contractor in a small business set-aside contract is required to do 51% of the work. That can be calculated in many different ways, predominantly established as being 51% of the labor dollars. Therefore that imposes a limitation on subcontracting, essentially meaning that you can’t subcontract more than 49% of the total value of a contract.
Keep in mind that there is a whole other set of rules and regulations to do with buying things, as opposed to buying labor. If, for example I am in a construction contract, I may need a whole bunch of materials – wood, cement, whatever – and those purchases must also comply with the size standard and limitations on the subcontracting. Be sure to consult a contracts attorney on this, somebody who understands the Federal Acquisition Regulations or the DFARS.
At TAPE we had the experience of dealing with a set-aside contract with $1,000,000 of labor, and there were some odd things that happened in the definition when you had an independent employee. There are some Department of Labor regulations about when a 1099 independent person has to count as an employee. So when the SBA regulations force you to treat that independent contractor as a subcontractor but at the same time you’re required to treat them and pay them as an employee, that creates a dichotomy of the treatment of that employee in the contract.
Let’s say there is a subcontractor we use repeatedly, such as an inspector. I may wind up using them for 1,000 hours over the course of time, so the Department of Labor says that’s really an employee not a contractor. On the other hand, the SBA rules were different because the person was defined as a contractor, meaning those limitations of 51% and 49% rules applied, and you may have a completely separate treatment.
These new rules reconcile all that confusion. If the Department of Labor rules says they must be an employee then you can also count them on as employee within the limitations of subcontractor (LOS) compliance.
In essence, when you need particular expertise that you hire from the outside, be sure you’re treating those people in compliance with the regulations of the SBA and the Department of Labor. If you have a situation where you’re using outside experts and maybe using one in particular a lot, my strong advice is to work with your contracts attorney or somebody who understands the FARS, DFARS and the SBA regulations.