Small Business Issues
Our government contract attorneys are seasoned professionals in prosecuting and defending bid protests and legal disputes before the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and other federal contract tribunals.
- Whether representing a successful awardee or disappointed offeror, we help clients navigate the bid protest process to successfully defend their own contract awards or to vindicate their rights to full and fair competition as a protester.
- Centre has represented clients in countless bid protests that yielded successful results without a written decision, including matters in which the procuring agency voluntarily adopted early corrective action or the protest resulted in early outcome prediction.
Our Small Business Subcontracting Experts
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012 and 2015. Prior to establishing Centre, Barbara was the head of a government contracts practice group at a major law firm. She started Centre in 2002 to provide integrated legal, GSA consulting and training services.
Alan is a partner in the Washington, D.C. area law firm Centre Law Group where he specializes in federal government contracts law and its policies and practices, including counseling companies on a wide range of matters ranging from contract formation and performance through disputes and claims. Prior to private practice, Alan was for 19 years the executive vice president and counsel of the Professional Services Council (PSC), the principal national trade association of the government technology and professional services industry, where he was responsible for the association’s legislative and regulatory policy activity.
Our attorneys have over 30 years of experience in Small Business Issues and are ready to assist you today.
Small Business Subcontracting FAQs
What is a size protest?
Size protests are actions brought by interested parties to challenges the size status of a set-aside contract awardee. The SBA Area Office to which the protest is assigned takes evidence and issues a “Size Determination.” From this determination, the losing party can appeal to SBA’s Office of Hearings and Appeals. While legal action is often the last resort, the increased frequency and complexity of small business set-asides has led size protests to become a weapon of choice for many contractors.
What is affiliation?
Under the SBA rules affiliation exists when an entity controls or has the power to control the small business. Control may arise through ownership, management or other relationships between the parties. When such control exists, SBA will view the entities as “affiliated”. Depending on the NAICS code being used, SBA will aggregate either the two businesses’ receipts or their number of employees; if those aggregate values exceed the relevant size standard, each affiliated firm becomes ineligible for a small business set-aside prime contract.
Why are Affiliation Rules Important?
If a competitor files a “size protest” again based on your alleged affiliation with another business, you may be found ineligible for contract award. Alarmingly, a finding of affiliation may disqualify you from the award of future set-aside contracts as well.
Can I protest another company’s set-aside contract award because they are affiliated with another company?
Yes, if you are an interested party and have reason to believe that the awardee is affiliated in a way that makes it large, you can protest the awardee’s size status before SBA. But don’t delay; there are strict time requirements to follow or else your protest will be dismissed.
What is the 8(a) Mentor-Protégé Program?
What is the Non-Manufacturer Rule?
The non-manufacturer rule applies only to small business prime contractors who offer to the government products manufactured by other entities. The complete rule has four requirements for these prime contractors — the “non-manufacturer”:
- Does not exceed 500 employees
- Is primarily engaged in the retail or wholesale trade and normally sells the type of item being supplied
- Takes ownership or possession of the item(s) with its personnel, equipment or facilities in a manner consistent with industry practice
- Will supply the end item of a small business manufacturer, processor or produced made in the United States, or obtains a waiver of such requirement pursuant to paragraph (b)(5) of this section
The non-manufacturer rule is intended to prevent small business prime contractors from being mere “pass-throughs” in the supply chain. By far the most common pitfall is the fourth (iv) requirement — that the small business prime must provide US-made goods from a small business manufacturer or else obtain a waiver of this requirement. Waivers are granted by SBA when there are no small business manufacturers of the product being supplied, but it should be kept in mind that even where a non-manufacturer rule waiver is obtained, it does not waive the other three requirements of the rule, nor any applicable domestic preference rules such as the Buy American Act.
Complete Table of Changes which will go into effect most likely Oct 1, 2022.
“SBA is increasing the size standards for 46 industries in those sectors, including 27 industries in NAICS Sector 54 (Professional, Scientific and Technical Services), two industries in Sector 55 (Management of Companies and Enterprises), and 17 industries in Sector 56 (Administrative and Support and Waste Management and Remediation Services).”
No action is taken at this time. However, if your NAICs code increases you should start to plan accordingly especially if you size down which means you become small again specifically those under 541611.
Within these categories, here are a few common NAICS codes that will see increases: (remember these numbers are based upon a five year average for revenue):
- NAICS 541310 (Architectural Services) from $8 million to $11 million
- NAICS 541330 (Engineering Services) from $16.5 million to $22.5 million
- NAICS 541611 (Administrative Management and General Management Consulting Services) from $16.5 million to $21.5
- NAICS 541990 (All Other Professional, Scientific and Technical Services) from $16.5 million to $17 million
|NAICS U.S. Industry Title
|Size Standards in Millions of Dollars
|Offices of Lawyers
|Title Abstract & Settlement Offices
|All Other Legal Services
|Offices of Certified Public Accountants
|5411330 (Exception 1)
|Military an Aerospace Equipment and Military Weapons
|5411330 (Exception 2)
|Contracts and Subcontracts for Engineering Services Awarded Under the National Energy Policy Act of 1992
|5411330 (Exception 3)
|Marine Engineering & Naval Architecture
|Building Inspection Services
|Geophysical Surveying and Mapping Services
|Industrial Design Services
|Other Specialized Design Services
|Computer Facilities Management
|Administrative Management and General Management Consulting Services
|Human Resource Consulting Services
|Process, Physical Distribution and Logistics Consulting Services
|Research and Development in the Social Sciences and Humanities
|Media Buying Agencies
|Direct Mail Advertising
|Advertising Material Distribution
|Marketing Research and Public Opinion Polling
|Translation and Interpretation Services
|All Other Professional, Scientific and Tech Services
|Offices of Bank Holding Companies
|Offices of Other Holding Companies
|Office Administration Services
|Professional Employer Organizations
|Telemarketing Bureaus and Contact Centers
|Other Business Service Centers (including copy shops)
|All Other Business Support Services
|All Other Travel Arrangement Services
|Security Guards and Patrol Services
|Armored Car Services
|Exterminating and Pest Control Services
|Carpet and Upholstery Cleaning Services
|Packaging and Labeling Services
|Convention and Tradeshow Organizers
|All Other Support Services
|All Other Miscellaneous Waste Management Service