Small Business Size/Status Opinions
Small business size and status opinions are provided to small and large businesses, lenders, sureties, teaming members and other participants in contract actions involving companies claiming small business status. These opinions analyze whether the small business company complies with the Small Business Act Regulations and case law, reducing the risk of disqualifications, forfeitures and protests. The opinions apply to all preferenced classifications, including small business, 8(a), SDB, Veteran-Owned, HubZone, Woman owned, Native Owned and others.
Appropriate Protective Structuring
Appropriate protective structuring for small business covers legal advice on mergers and acquisitions, joint ventures, teaming arrangements, formation of new entities, and LLC creation involving small and large companies that want to work together to avail themselves of contracting opportunities and evaluation preferences reserved to small business. Care must be exercised in structuring a relationship between small and large contractors to avoid compromising the eligibility of small business partner(s) requisite qualifications because a mistake can have very severe consequences.
Small Business Status Compliance for Buy Sell Transactions
The Small Business Jobs Act of 2010 makes it more critical than ever that a large company acquiring the stock of a small company undertake adequate due diligence to confirm the seller’s small business status at the time of the small business company’s offers on federal contracts. The consequences of missing this issue are very negative and dramatic. Likewise, a seller of the small business will be required to make a representation and warranty as to its size status and eligibility. If there are close questions, legal advice is necessary.
Challenge Competitors Small Business Status
Changes in law and regulation since 2007 have caused a significant rise in challenges to small business eligibility. Pursuing a challenge to your competitor’s eligibility within the required five calendar days could be the difference between winning or losing a major contract. Blank Rome LLP has developed an application to expedite the analysis of these issues and provide a competitive advantage to its clients in pursuing these challenges.
Defense of Contracting Status
If your firm’s size or status is challenged by the government or a competitor and your firm’s eligibility for a contracting preference is in jeopardy, our team can quickly mobilize, analyze and respond to these challenges.
Subcontracting Limitations Compliance
There have been an increasing number of protests and disputes concerning a prime contractors’ compliance with the limitation on subcontracting requirements on small business set-aside contracts. Where a small company is subcontracting a significant portion of work to another company, questions often arise as to whether the subcontracting arrangement violates the limitation on subcontracting. Problems of this sort can cause disqualification of a bidder’s proposal or could possibly result in a contract termination.
The procurement regulations allow a bidder to lodge a size protest against the eligibility of competitor. Size protests are different from bid protests, and are heard by the SBA Office of Hearings and Appeals. These protests are often based on claimed relationships between large and small companies, allegations of undue reliance of a small company on a large company, excessive subcontracting or other close management or ownership relationships. A successful size protest against a competitor can sideline that competitor and could create significant legal exposure problems for the ineligible company. On other hand, if a size protest has been asserted against your firm, is very important to vigorously defend this to avoid highly adverse consequences.
NAICS Codes Revisions
NAICS codes are assigned to a procurement by the Contracting Officer and establish the applicable size standard. See 13 CFR § 121.201. Often, more than one NAICS Code can apply to a particular project. The assignment of that code establishes the field of competition for the contract. Large and small businesses have the ability to request changes in the NAICS from one to another if they act within 10 days of the solicitation being issued. The firm advises and supports these requested NAICS Code challenges.
Whistleblower Investigations and Claims
The Small Business Jobs Act of 2010 will increase the use of the False Claims Act by the Department of Justice to enforce misrepresentation of small business status. As a result, increased litigation is expected on both the plaintiff side in bringing False Claims Act cases based upon misrepresentation of small business status, and on the defense side trying to defend against those claims. The firm has significant expertise in small business status and in False Claims Act work and is available to advise on these claims.