United States: The SBA Gets Down To (Small) Business: Venable's 5-Part Series On The SBA's Proposed Rules To Implement The 2013 NDAA

Last Updated: January 27 2015
Article by Keir X. Bancroft and Nathaniel S. Canfield

On December 29, the Small Business Administration (SBA) published substantial new proposed rules to implement requirements under the 2013 National Defense Authorization Act (NDAA), addressing a wide variety of issues affecting not just small business government contractors, but also large business government contractors that subcontract with small businesses. This week, Venable's Government Contracts Practice Group will examine the most significant changes that the SBA has proposed in a 5-part series, offering insights and take-aways for small and large businesses that could be affected by these proposed rule changes. Our installments will cover the following aspects:

  1. The Limitation on Subcontracting and Small Business Subcontracting Plans
  2. Identity of Interest, Size Protests, NAICS Appeals, and Certificates of Competency
  3. Calculation of Annual Receipts, Recertification Requirements, and Service-Disabled Veteran-Owned and HUBZone Small Business Concerns
  4. Affiliation Rules, Joint Ventures, and the SBIR and STTR Programs
  5. Changes to the Nonmanufacturer Rule

Government contractors both large and small will want to consider these topics and determine if they want to submit comments in advance of the February 27, 2015 deadline.

The Proposed New Limitation on Subcontracting, or 50% Rule

The current limitation on subcontracting rule, or "50% rule," requires small business prime contractors on set-aside services contracts to incur no less than 50% of the cost of performance for labor. A similar methodology applies to materials and construction contracting. To implement requirements of the 2013 NDAA, the SBA proposes to alter the rule as follows:

No more than 50% of the amount paid by the government to the prime may be paid to firms, at any tier, that are not similarly situated, and in addition

  • Any work that a similarly situated entity subcontractor further subcontracts to an entity that is not similarly situated will count toward the 50% subcontract amount.
  • A similar 50% limitation applies to the amount paid by the government for supply contracts; a 15% limitation is applied to the amount paid by the government for construction contracts, and a 25% limitation is applied to the amount paid by the government for specialty trade contractors.

Accordingly, under the new rule a small business prime is barred from subcontracting more than 50% of the amount paid by the government under the prime contract, unless a subcontract is to a similarly situated entity, i.e., a subcontractor with the same small business program status as the prime contractor. Thus, a HUBZone small business prime contractor can subcontract to another HUBZone small business subcontractor without it counting toward the 50% limitation. That HUBZone small business prime contractor, however, will have to count a subcontract to a woman-owned small business toward the 50% limitation, because it is not a similarly situated entity.

The SBA has gone a step further from Congress. The 2013 NDAA focused only on prime contractor restrictions. This limitation, however, could allow a similarly situated subcontractor – to which the 50% limitation does not count – to further subcontract some or all of the value of its contract to a large business. Thus, on a $100,000 set-aside, a HUBZone small business prime contractor could subcontract $75,000 of the amount paid by the government to another HUBZone small business. That subcontractor, in turn, could subcontract some – or all – of its subcontract to a large business. The SBA proposes to block that loophole by imposing limitations to contractors at any tier, and specifies that subcontracts to entities that are not similarly situated will count toward the rule's limitations. This would bar the HUBZone small business subcontractor in the example above from subcontracting too much work to a large business subcontractor.

The wording of the proposed new rules also would dramatically simplify the methodology for determining how the percentage of subcontracting is calculated. For both services and supplies, the percentage is calculated simply as a percentage of the amount paid by the government to the prime. This is a substantial change from the current calculation methodology, as services contractors who have spent time and effort determining the "cost of contract performance incurred for personnel" will attest.

The SBA has proposed significant penalties for small business prime contractors that misrepresent compliance with the rule. Those penalties include imprisonment for up to 10 years, and a fine that is the greater of $500,000 or the dollar amount spent in excess of the permitted levels for subcontracting.

The Bottom Line: What You Should Know

Under the SBA's proposed rule, small business primes must be vigilant in tracking the amount of work subcontracted throughout their subcontracting chain, particularly the work subcontracted by similarly situated entities. Failure to keep track of subcontracting could result in the contracting team exceeding the 50% limitation on subcontracting without the prime contractor's knowledge, and risk an accusation that the prime misrepresented compliance with the rule.

Small Business Subcontracting Plan Requirements

The SBA proposes to toughen up requirements pertaining to small business subcontracting plans, which could have significant consequences for large business prime contractors.

  • Reporting Fraudulent Activity or Bad Faith: The SBA proposes to allow small business concerns and commercial market representatives (CMRs) to report fraudulent activity or bad faith behavior by large business prime contractors with respect to their subcontracting plans. Reports would be made to the SBA's Area Office where the firm is headquartered.
  • Strengthening Corrective Action Plans: Large business prime contractors failing to provide a written corrective action plan after receiving a marginal or unsatisfactory rating for their subcontracting plans will be subject to material breach of contract, which will be considered in the contractor's past performance evaluation.
  • Data Collection and Reporting: The SBA proposes to require agencies to collect, report, and review data on the extent to which each contractor meets its goals and objectives as set out in subcontracting plans.

This proposed rule, coupled with the recent rule allowing small business subcontractors to communicate directly with contracting officers about a lack of payment, will affect how large business prime contractors and their small business subcontractors interact. Failure by a large business prime contractor to reconsider a strained relationship with a small business subcontractor could lead to an allegation of fraudulent activity or bad faith with respect to small business subcontracting plan compliance. This proposal by the SBA leaves no recourse for the prime contractor to respond to allegations of fraudulent activity or bad faith, which could have significant adverse effects for contractors.

The Bottom Line: What You Should Know

Under the SBA's proposed rule, large businesses must be aware of increasing scrutiny about small business subcontracting. The SBA's proposed rule does not specify that any of the data collected on its subcontracting plan will be limited. Therefore, representations as to plan compliance under one contract must be consistent with plan compliance under another contract, or a large business prime runs the risk of allegations of making false statements to its agency customers.

Submitting Comments

Contractors wishing to submit comments on these proposed rules can do so through regulations.gov by searching for RIN: 3245-AG58. Comments are due by February 27, 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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