Refreshed USASpending website irks some transparency advocates

The work-in-progress known as government transparency took a new twist on April 1 when the Treasury Department unveiled “improvements” to the website aimed at providing easy public access to data on federal contracts, grants and financial assistance governmentwide.

David Lebryk, Treasury’s fiscal assistant secretary, in a blog post described the change — done in response to external feedback– as improving “navigation to allow users to more directly summarize spending data” and to take advantage of a platform borrowed from the award-winning website used to track spending on the 2009 stimulus legislation.

The refreshed website is supposed to be easier to navigate and understand (it uses plain language instead of government jargon); provide interactive mapping of prime recipients’ localities and enhanced agency and state financial data summaries; connect subcontract award data to prime awards; and expand search capabilities for simplified titles.

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Listing solicitation’s NAICS code not required in SAM

Contrary to a common misconception, a contractor need not list the solicitation’s NAICS code in its SAM profile in order to qualify for contract award.

In a recent bid protest decision, the GAO confirmed that the government may award a contract to a small business even if the awardee does not list the solicitation’s NAICS code in its SAM profile.

The GAO’s decision in High Plains Computing, Inc. d/b/a HPC Solutions, B-409736.2 (Dec. 22, 2014) involved a Social Security Administration procurement for video teleconferencing support services.  The solicitation was issued as an 8(a) set-aside under NAICS code 517919.

After reviewing competitive proposals, the agency awarded the contract to National Cable Contracting, LLC.  An unsuccessful competitor, High Plans Computing d/b/a HPC Solutions, filed a GAO bid protest.  HPC contended, in part, that NCC was ineligible for award because NCC did not list NAICS code 517919 on its SAM profile.

The GAO noted that it had examined a similar question in 2007 under the old ORCA system.

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Revenue-based small business size standards to increase on July 14

You probably know that the federal government’s definition of a small business is based on either the number of people that a company employs or the amount of revenue it earns annually.  The number-of-employees or the gross-revenue standards are applied to individual North American Industrial Classification System (NAICS) codes.  One or more NAICS codes apply to every business.

Thus, in order to determine whether a company is a small business in the eyes of the government, one must first determine which NAICS code or codes apply to the business, and then see what size standard (employees or revenue) applies to each NAICS code.  If a business has fewer employees or earns less annual revenue (averaged over the past three years) than the standard, then that business can represent itself to the federal government as a small business.  This is an important determination to make since the federal government sets an annual goal of awarding 23 percent of its contract dollars to small businesses.

It’s been more than five years since the Small Business Administration (SBA) updated the revenue size standards for small businesses.  Therefore, as of July 14, 2014, the SBA is adjusting virtually all of its size standards that are based upon revenue, to account for the years of inflation since the last adjustment. 

The forthcoming adjustment affects almost half of all NAICS code categories.    In all,  476  industrial categories will be affected by the update,  including most service, construction, retail, agricultural and transportation industries. 

With these increases, the new small business size standards range between $5.5 million and $38.5 million.

Using the Gross Domestic Product price index to obtain the most comprehensive measure of inflation, the SBA determined that the amount of inflation that occurred between the first quarter of 2008 and the last quarter of 2013 was 8.73 percent.   The SBA then calculated the new size standards by multiplying the current size standards by 1.0873 and then rounding that total to the nearest $500,000.  After these adjustments,

This latest adjustment of the revenue-based size standards for inflation is separate from the comprehensive review of all size standards that the SBA is supposed to perform at least every five years.

The new size standards can be found at:!documentDetail;D=SBA-2014-0009-0001.  Busineeses have until August 11, 2014 to submit any comments on these rules which technically are “interim final rules” at this point.

Because these new size standards will apply to certificates of small business size status signed on or after July 14, 2014, small (and near-small) businesses should review the new size standards to determine whether they now qualify as a small business concern.   Businesses also should visit the System for Award Management (SAM) and verify that their profile and certifications are up to date based on the revised size standards.

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SBA makes small businesses bigger (the easy way)

The enlarging of small business has begun.

On Wednesday, the Small Business Administration published a final rule revising upward the size standards that determine eligibility for S.B.A. programs in three broad sectors of the economy. And that is good news for nearly 18,000 businesses that until now have been unable to take a government-backed loan or to get assistance winning federal contracts. But it makes the term “small business” a little more ambiguous.

S.B.A. size standards vary by industry (as enumerated in the North American Industry Classification System). Generally, caps are set based either on number of employees or average annual receipts, a system that was put in place in 1984. Apart from occasional inflation adjustments and other tweaks, the standards have remained largely the same since then. The changes announced this week, for the retail, accommodation and food service, and “other services” sectors, are the first to result from what the agency calls the first “comprehensive review” of size standards in nearly 30 years.

For the most part, industry size standards now set at $7 million in average annual receipts will be doubled or more, in some cases increasing to $30 million or $35.5 million. But these are not nearly as drastic as the adjustment made for new car dealers. Initially, the S.B.A. proposed raising the maximum receipts to $30 million, from $29 million, or, alternatively, setting the maximum level of employees at 100. But after lobbying from the National Automobile Dealers Association, the S.B.A. adopted a standard that defines dealers with up to 200 employees as small.

According to the S.B.A., nearly a third of those 18,000 companies, scattered across 70 industries, soon to fall under the small-business rubric are new-car dealers. Figures from the Census Bureau indicate that 83 percent to 93 percent — and probably closer to 93 percent — of all new-car dealerships will now be considered small. Moreover, the largest of those now-small firms will have annual revenue of around $120 million.

An S.B.A. spokesman, Jonathan Swain, said senior agency officials were not immediately available to discuss whether, or why, auto dealers had been singled out by the new policy. However, since the Obama administration effectively nationalized much of the General Motors and Chrysler last year, it has used the S.B.A. to alleviate the suffering of the politically powerful car dealer industry, even as it simultaneously pushed G.M. and Chrysler to shutter many of their dealers.

In May 2009, the S.B.A. created an alternative size standard for the purposes of getting a government-backed loan, in effect through last month. The alternative — which replaced the average revenue or headcount threshold with a maximum net worth of up to $8.5 million, combined with a net income capped at $3 million — was not specifically aimed at auto dealers, administration officials said at the time. However, they pointed out that relaxing the rule would increase the share of all new car dealers eligible for an S.B.A-backed loaned from 25 to 50 percent. A few weeks later, the agency announced a new, also temporary, “floor plan financing” program specifically devised to allow hard-pressed vehicle dealers to use the agency’s general business loans to finance inventory.

Andy Koblenz, the dealer association’s vice president of legal and regulatory affairs, defended the new size standard. “The top line revenue is not relevant because of the nature of the products,” he said. “If you’re selling books, or you’re selling clothing or you’re selling cars, the businesses are comparably sized in terms of physical plant, sales staff and management structure.” According to the association, the average pretax profit margin for its members has hovered around 1.5 percent in recent years, among the lowest margins of any American industry that’s turning a profit (on average, a dealer with $120 million in revenue would earn a taxable income of $1.8 million).

The new size standards take effect on Nov. 5. Meanwhile, the recently enacted small-business jobs bill directed the S.B.A. to put into effect another, still more generous, temporary alternative size standard for S.B.A. loans to supersede the expiring standard put in place in May 2009. Under the new law, the cap on net worth was raised to $15 million and the limit on income bumped to $5 million. On Friday, the S.B.A. announced that it had enacted the new standard.

Political pressures inexorably push up small-business size definitions. That, at least, is the theory of Jonathan Bean, author of a history of the S.B.A. provocatively titled “Big Government and Affirmative Action.” As the name suggests, this is not exactly a work of scholarship; it’s a polemic offered by an ideologue staunchly opposed to any S.B.A.-style intervention in supposedly free markets. Nonetheless, the events of the last several weeks suggest Mr. Bean has a point.

The pressure comes not just from Congress. In fact, in each of the three sectors the S.B.A. analyzed in its own review, the agency found many industries where the data suggested actually reducing size standards. But in each instance, it declined to do so. “S.B.A. believes that lowering size standard for those industries would not be in the best interests of small businesses when the economy is in a deep recession,” the agency wrote when it proposed these rules in October 2009.

Nor, apparently, is it in their interests after the economy exits recession. “Further,” the agency continued, “S.B.A. does not anticipate that it will propose to lower size standards after the Recovery Act terminates on September 30, 2010. S.B.A. intends for the proposed size standards, if adopted, to remain in effect unless and until it receives information or data that suggests a change is needed.”

In other words, we are all small businesses now.

— by Robb Mandelbaum, New York Times – Oct. 9, 2010