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SBA Regulatory and Compliance Update June 17, 2014 National 8(a) Association Summer Conference

SBA Regulatory and Compliance Update June 17, 2014 National 8(a) Association Summer Conference. Presented by: Robert K. Tompkins, Holland & Knight Melanie Roller , C2 North. General Regulatory Update. New Regulations. Significant New SBA Final Rules in the last 12 months

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SBA Regulatory and Compliance Update June 17, 2014 National 8(a) Association Summer Conference

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  1. SBA Regulatory and Compliance UpdateJune 17, 2014National 8(a) Association Summer Conference Presented by: Robert K. Tompkins, Holland & Knight Melanie Roller, C2 North

  2. General Regulatory Update

  3. New Regulations Significant New SBA Final Rules in the last 12 months • June 2013 – Implementation of the Small Business and Jobs Act “Integrity Provisions” principally through the addition of 13 CFR 121.108. • July 2013 – Small Business Subcontracting • October 2013 – MAC contracting • June 2014 – Correction to 125.6 omission in MAC rule

  4. Pending Rules • June 12, Interim Final Rule with Inflation Adjustment to Monetary Based Size Standards • Effective July 14, 2014 • Comments due August 11, 2014

  5. Anticipated Rule-makings Anticipated Rule-makings (from 2010 JOBS Act and 2013 NDAA) • Size Standard Reviews, Sectors 31 and 33 due out soon. • Mentor-Protégé Changes • Limitation on Subcontracting Revisions

  6. SBA Guidance/SOP Updates • Revisions to SOPs • SF 1450 and other items (see next slides) • Guidance on Business Development and Shared Administrative Services

  7. Administrative and Personnel Changes

  8. New SBA 1450 FormNew 8(a) Contract Activity Reporting Form • There is a new SBA 1450 form available on SBA’s website. However it is not available on BDMIS yet. • http://www.sba.gov/content/sba-form-1450-8a-annual-update • New attachment to Form 1450 (Attachment C) requires reporting on 8(a) contracts including self-performance percentages and subcontractors

  9. New System to Replace BDMIS:OneTrack CMS • OneTrack CMS (Certification Management System) may complete user testing in Fall 2014. Possible training for SBA in early 2015 with user implementation later in the year. • New system to be more user friendly and will integrate with SAM, requiring only one user ID/password to access all databases. • OneTrack will allow you to see where your company is in the review process. • Will be able to upload documents to accompany the application. • OneTrack CMS will have information on mentor-protégé program and all the required checklists.

  10. SBA Personnel Changes In Washington: • Bob Watkins will be serving as SBA Acting Administrator and replaces Darryl Hairston, who recently retired. Related to Alaska: • SBA Alaska District now has dedicated legal counsel which should speed up future submittals processing. • SBA Alaska District also has one newly assigned BOS.

  11. Enforcement and Oversight Changes and Trends

  12. DPCE Document Requests • The Division of Program and Certification Eligibility was established under Section 7(j) of the Small Business Act. • DPCE is conducting initial and continuing eligibility reviews of 8(a) program participants in coordination with annual reviews. • DPCE has requested all SBA district offices obtain and provide documentation on each active 8(a) participant. • You may receive your request via e-mail from your BOS.

  13. Enforcement and Oversight • SBA OIG activity (see data next slide) • Broader enforcement trends – various components working together (SBA and other agency OIG or investigative arms (i.e. Army CID) • Emerging issues • Use of administrative reviews in conjunction with other enforcement actions

  14. Enforcement: Statistics Tell The StorySummary of SBA-related criminal actions andsuspension/debarment activity by fiscal year

  15. IV. Case Law – GAO and OHA cases

  16. CASE LAW DEVELOPMENTS OHA • Cases involving protest rights and timing. (NAICS Code appeals; post-proposal information) • Cases involving re-certification of size on long-term and MAC contracts. • Ostensible subcontractor cases: factors to consider: what are the “primary and vital” aspects of the work? Whose employees provide project management? Is the subcontractor the incumbent?; What are the capabilities of the prime? GAO • Rule of Two Cases. Timing of protest. Adams & Associates, B-409685, April 22, 2014. • Past Performance & Experience. Unduly restrictive evaluation criteria. Iyabak Construction, LLC, B-409169, February 6, 2014 • 8(a) set-asides. “New” Requirements under 8(a). HRCI-MPSC PASS, LLC, B-408919, January 8, 2014, see alsoAlpa Technologies, B-408762.2, Feb. 12, 2014 • Timing of 8(a) JV approval. BGI-Fiore JV, LLC, B-409520, May 29, 2014 • Consolidation – low bar for government. American Toner & Ink, B-409528.7, June 9, 2014.

  17. Best Practices/Recommendations • Understand and address issues raised in the new and upcoming regulations • Take an integrated view toward your interactions with the government (SBA, contracting agencies, etc.) • Enhance your compliance programs and training • Ensure your internal controls on determining size, affiliation and certifications are sufficient and well-documented • Right-size your training • Be aware of the enforcement environment • Take care in filings and representations to the Government • Alert your staff to be on the lookout for atypical inquiries

  18. Contact Information C2 North, LLC Melanie Roller 4141 B Street, Suite 201 Anchorage, AK 99503 907.569.9122 T 603.388.0793 eFAX mroller@c2north.com www.c2north.com

  19. Contact Information • Robert K. Tompkins • Partner • Holland & Knight, LLP • 800 17th Street, NW, Suite 1100 • Washington, DC 20006 • (202) 469-5111 (direct dial) • Robert.Tompkins@hklaw.com

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