Wednesday, February 11, 2015

Get an SBA Size Determination - Avoid Serious Penalties

The U.S. Small Business Administration (SBA) issued a new rule that will now limit the liability from fraud penalties for individuals or firms that misrepresent business concerns as being small for purposes of Federal procurement opportunities if they acted in good faith reliance upon small business status advisory opinions received from Small Business Development Centers (SBDCs) or Procurement Technical Assistance Centers (PTACs). The rule also established the criteria small business status advisory opinions must meet in order to be deemed adequate and specify the review process for such opinions.

This limitation on liability will only affect those firms that incorrectly claim status as small business concerns after obtaining small business status advisory opinions from SBDCs (administered by the SBA) or PTACs (administered by DoD). In Fiscal Year 2014, SBA determined that approximately 137 firms had represented themselves as being small for purposes of federal procurement opportunities were not small. Most of these cases however did not involve fraud, but instead were the result of errors or misunderstandings of the size regulations.

With regard to the small business status advisory opinion provision of the new rule, neither SBDCs nor PTACs are required to provide such opinions and it is not know how many SBDCs and PTACs will elect to provide such services, particularly given that no additional funding will be awarded to them to cover the cost of these services. Moreover, the SBA has no idea how much demand there will be for such services from those SBDCs and PTACs that offer them.

A small business status advisory opinion is a written opinion issued by either a SBDC or a PTAC which concludes that a firm is entitled to represent itself as a small business concern for purposes of federal government procurement opportunities. An SBDC or PTAC must sumit a copy of each small business status advisory opinion it issues to the the SBA. The opinion must

  1. provide a written analysis explaining the reasoning underlying the SBDC or PTAC's determination that the covered concern (along with its affiliates) either does or does not exceed the size standards. This analysis must be signed by an SBDC or PTAC business counselor or similarly qualified individual.
  2. include a copy of an SBA Form 355
  3. include copies of the evidence (such as payroll records, timesheets, federal income tax returns, etc.) provided by the covered concern to the SBDC or PTAC clearly documenting its annual receipts and/or number of employees as those terms are defined by the SBA.
The SBA will decide within 10 days whether to accept or reject the opinion. Once that opinion is received, a concern may rely upon that determination for purposes of responding to Federal procurement opportunities from the date it is issued until the concern undergoes a significant change in its ownership, management, or other factors bearing on its status as a small business concern. 

This will not foreclose on interested parties protesting a competitor's size. Even holding such an opinion, a firm's size may still be protested by interested parties in connection with a specific procurement.

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