Section’s Small Business Committee Provides Key Updates on Legislative, Regulatory, and Judicial Changes

Small Business and Other Socioeconomic Programs Committee

Small business prime contractors received a record $178.6 billion in prime contract awards in fiscal year (FY) 2023 from the federal government, which was an increase of $15.7 billion from FY2022. Historically Underutilized Business Zone (HUBZone) small businesses were awarded a record-breaking $17.5 billion in federal contract awards in FY2023, while women-owned small businesses (WOSBs) received $30.9 billion in prime contracting dollars, which also was the highest amount ever awarded to WOSBs. A simple review of these record-breaking awards shows that public contract lawyers should be aware of the changing regulatory landscape and significant court cases that impact small business contractors. The Small Business and Other Socioeconomic Programs (SBOSP) Committee’s mission is to monitor, review, comment on, and educate our members about these noteworthy regulations and issues by holding meetings throughout the year, providing updates to our members, and filing comments on rules and proposed rules that impact small businesses.

The past ABA program year (September 2023 through August 2024) had much activity from the SBOSP Committee, including the following meetings.

• On September 27, 2023, the SBOSP Committee joined with the Commercial Products and Services Committee for a virtual meeting to discuss the impacts of the Ultima Services Corporation v. U.S. Department of Agriculture decision on SBA’s 8(a) program, including a discussion on personal social disadvantage narratives, updates on new applications to the 8(a) program, and a conversation around unresolved issues in the 8(a) program following the Ultima decision. Co-Chairs Amy Fuentes of Holland & Knight and Josh Mullen of Womble Bond Dickinson, Vice-Chair Nicole Vele of Michael Best & Friedrich LLP, and Mark Hagedorn of SBA served as panelists for the meeting. For each of our meetings, the SBOSP Committee typically has one vice-chair provide a caselaw and regulatory update describing recent significant developments. For this meeting, Vice-Chair Alex Ginsberg of Fried Frank provided the update.
• On October 30, 2023, the SBOSP Committee held a meeting providing an Overview of the SBA Size Standards and Methodology, including discussion of and insight into the SBA’s review of all 1,000+ size standards, the methodology and process in deciding and setting those size standards, and the opportunities for public comment on all size standards. Co-Chair Sam Le, Khem Sharma, and Jorge Laboy-Bruno, all from the SBA, served as panelists. Vice-Chair Jarrod Carman of WilmerHale prepared and provided the case law/regulatory update.
• On January 30, 2024, the SBOSP Committee held a virtual and in-person meeting titled An Update from SBA’s Associate General Counsel for Procurement Law, John Klein in which John Klein gave updates on SBA’s procurement programs, including an update on expected and pending regulatory changes. Co-Chair Sam Le of SBA and Vice-Chair Matthew Schoonover of Schoonover & Moriarty moderated the discussion. Schoonover also prepared and provided the caselaw/regulatory update.
• On April 30, 2024, the SBOSP Committee held a virtual meeting titled Fraud and False Claims Act Violations Under SBA’s Programs. Vice-Chair Ambika Biggs of Hirschler Fleischer served as the moderator for the meeting and Adam Katz, Assistant US Attorney, Northern District of New York, Andrew Miller of Baron & Budd, and Megan Mocho of Holland & Knight served as panelists. Vice-Chair Laura Gardner of The Gardner Law Office prepared and provided the caselaw/regulatory update.
• On May 21, 2024, the SBOSP Committee held its Annual Judges Panel meeting with the following esteemed panelists: Judge Matthew Solomson of the US Court of Federal Claims, Judge Christopher Holleman, Administrative Judge, SBA Office of Hearings and Appeals, Edward Goldstein, Managing Associate General Counsel for Procurement Law, GAO, and Judge C. Scott Maravilla of the FAA Office of Dispute Resolution for Acquisition. Co-Chair Amy Fuentes of Holland & Knight and Vice-Chair Daniel Ramish of Haynes and Boone served as moderators for the meeting. Alissandra Young McCann of Morrison & Foerster prepared and provided the caselaw/regulatory update.
• On June 12, 2024, the SBOSP Committee held a virtual meeting discussing the Data Rights Under the Small Business Innovation Research (SBIR) Program. The discussion provided background on existing data rights regulations, including perspectives of both government and private practitioners. Vice-Chair Max Kidalov of the US Air Force served as the moderator for the program and Erick Page-Littleford of the SBA, Chris Lockwood of Womble Bond Dickinson, David Black of Holland & Knight, and Jere Glover of the Small Business Technology Council served as panelists.
• On July 17, 2024, the SBOSP Committee held a virtual meeting focused on Foreign Ownership and Involvement Considerations for Small Businesses. Vice-Chair Erica Bakies of Seyfarth Shaw served as a moderator for the panel with Eric Ransom of Crowell & Moring, Chris Nagel of Holland & Knight, and Travis Mullaney of ArentFox Schiff serving as panelists. The panel focused on topics such as SBIR ownership restrictions, technology transfer restrictions, and foreign ownership, control, or influence (FOCI) mitigation when dealing with classified programs. Tim McLister of GreenbergTraurig prepared and provided the caselaw/regulatory update.
• On August 21, 2024, the SBOSP Committee hosted its Annual Legislative Update Meeting with panelists including Cate Benedetti, professional staff member, US House Committee on Small Business, and Vivian Ling, Minority Senior Counsel, US Senate Committee on Small Business & Entrepreneurship. Vice-Chairs Adam Bartolanzo and Stephen Ramaley, both of Miles & Stockbridge, served as moderators.

Beyond our full slate of meetings, the SBOSP Committee also had a very busy year providing substantive comments to various proposed rules impacting small businesses. For example:

• FAR Proposed Rule, Federal Acquisition Regulation: Protests of Orders Set Aside for Small Businesses, FAR Case 2021-009, which proposed to amend FAR Subpart 19.3 to implement regulatory changes made by the SBA in its prior final rules published in the Federal Register on October 2, 2013 (78 Fed. Reg. 61,113); October 16, 2020 (85 Fed. Reg. 66,146); and November 29, 2022 (87 Fed. Reg. 73,400). This proposed rule recommended adding clarifying language to FAR Subpart 19.3 to align with the prior changes made to SBA’s own size protest regulations.
• FAR Proposed Rule, Federal Acquisition Regulation: Rerepresentation of Size and Socioeconomic Status, FAR Case No. 2020-016. This proposed rule sought to amend FAR Part 19 to implement regulatory changes made by the SBA in its final rule published on October 16, 2020 (85 Fed. Reg. 66,146) to require small business concerns to rerepresent their size and/or socioeconomic status for orders placed under multiple-award contracts under certain circumstances.
• FAR Proposed Rule, Federal Acquisition Regulation: Limitations on Subcontracting Revisions, FAR Case 2021-020, which proposed to amend FAR Subparts 19.5 and 19.8 to implement regulatory changes made by the SBA in its final rules published in the Federal Register on May 31, 2016 (81 Fed. Reg. 34,243); November 29, 2019 (84 Fed. Reg. 66,146); and October 16, 2020 (85 Fed. Reg. 66,146). The proposed rule looked to standardize the language in the FAR related to limitations on subcontracting and nonmanufacturer rules to ensure consistency with prior changes to SBA’s regulations.
• FAR Proposed Rule, Federal Acquisition Regulation: Subcontracting to Puerto Rican and Covered Territory Small Businesses, FAR Case 2023-001, which sought to amend FAR Parts 2, 19, 42, and 52 to implement paragraphs (a) and (d) of section 861 of the John S. McCain National Defense Authorization Act (NDAA) for FY19 (Pub. L. No. 115-232) that amended 15 U.S.C. §§ 632(ee) and 657r(a) to add Puerto Rico, the US Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands to the list of territories from which small businesses are eligible for preferential treatment under the SBA mentor-protégé program. The proposed rule is intended to reconcile the FAR with the language in the SBA’s final rule published on August 19, 2022 (87 Fed. Reg. 50,925).
• SBA Proposed Rule, Women-Owned Small Business Federal Contract Program Updates and Clarifications, SBA-2024-0004, which proposed to amend 13 C.F.R. Parts 124, 127, and 128 to make several changes to the WOSB and Economically Disadvantaged Women-Owned Small Business (EDWOSB) programs. The proposed rule would add definitions, conform the regulations to current statutes, adopt language similar to that used in SBA’s other government contracting programs, and standardize language regarding limits on outside employment.

The SBOSP Committee’s busy year of meetings and commenting on rules highlights the vast opportunities available to Section members. Joining the SBOSP Committee keeps practitioners updated on legislative, regulatory, and judicial changes and provides essential compliance information from top experts. Attending our meetings is an excellent way to stay informed about the evolving landscape facing small businesses. Our success relies on the active participation of our diverse members and stakeholders. The SBOSP Committee welcomes you to attend our meetings and hopes for you to get involved with us.