The American Small Business League wants the

last word on whether a Fortune 500 company can be considered a "small

business."

The ASBL recently filed an appeal with

the U.S. Court of Appeals for the Ninth Circuit, against a judge's

decision to dismiss the league's case against the Small Business

Administration.

"Of course, I was very disappointed the judge

dismissed the case, but the way he dismissed it I was happy with,"

said Lloyd Chapman, ASBL president. "Our case was really about trying to

get an injunction to two SBA policies that we feel are illegal: the

grandfathering policy that allowed for them to report awards to Fortune 500

firms as small business contracts and the exclusionary rule that they use

to exclude two-thirds of the federal acquisition budget from their

calculations." 

"When you look at the judge's ruling, it

really doesn't even look like the same case," Chapman continued. "It

looks like a ruling about someone who's challenging in the way information

is reported."

The dismissal states that Congress established the law requiring SBA

to give lawmakers information on federal small business contracting.

"If the Small Business Administration is

giving Congress bad information, then Congress can do something about it,

either in an oversight or legislative capacity," the dismissal states. "Having

requested the report, Congress, not the judiciary, is in the best position to decide

whether it's gotten what it wants."

Every year agencies must report to the SBA on

whether or not they met small business contracting goals, and if an agency

doesn't meet the goal, it must provide SBA with the reasons why the goal wasn't

reached and a plan on how to address it.

The SBA shared earlier this year that in

fiscal 2015, the government reached — and in fact surpassed — its 23

percent overall small business procurement goal by spending 25.75 percent, or

$90.7 billion on small business contracts.

The ASBL filed its original lawsuit  May 3 against the SBA, claiming the

agency has adopted the practice of awarding small business contracts to

Fortune 500 companies and met its goaling reports through "creative

accounting."

"SBA characterizes contracts awarded to

Fortune 500 corporations as 'small business contracts' for the purpose of

claiming federal agencies have attained their small business contracting

goals," the ASBL stated in its lawsuit.

The ASBL also claims in its suit that the SBA

can only say it meets the 23 percent goal by "creating, through agency fiat, a

class of government contracts which are, solely in the view of the SBA, subject

to exclusion from being considered as part of 'the total value of all prime

contract awards' as stated in the Small Business Act."

The SBA in its motion to dismiss, said it's

not SBA's practice of "misclassifying contracts," but rather "the Department of

Defense, [General Services Administration], and NASA — through the FAR,

and under guidance from the Office of Management and Budget — make each agency

individually responsible for submitting and certifying the veracity of its

contracting data to Federal Procurement Data System."

John Shoraka, SBA's associate administrator

of Government Contracting and Business Development, told Federal News Radio in

a May interview that SBA's exclusion practice was a carryover from the previous

administration, but is being updated.

The judge who dismissed the case said under

the Administrative Procedure Act, federal courts are not allowed to review

everything an agency does, only "final agency action."

The SBA goaling report doesn't meet the test

for final agency action, according to court documents.

"It neither alters the legal regime to which

individual agencies or small businesses are subject, nor results in direct and

appreciable legal consequences," the dismissal states. "The report does not

carry penalties for an agency's failure to meet the small business

participation goal. It does not bind agencies to comply with any proposed

remediation plan. Any appreciable consequence of the report — such as an

agency's decision to start awarding more contracts to small businesses — would be

indirect, because the agencies make the ultimate decision whether and how to

award contracts."

Despite the legal setback, Chapman remains

optimistic.

"Well, I think Congress passed the Small

Business Act and it's the Justice Department's job to enforce that law, and the

judge cannot think that it's up to Congress to do this," Chapman said. "I think

the ninth circuit will agree with me, that Fortune 500 firms aren't small

businesses, and the word all means all. The Small Business Act says all

small businesses shall receive a minimum 23 percent of all contracts. Yet the

SBA has admitted that they use their exclusionary rule to exclude contracts for

a variety of reasons."

To view full article click here: http://federalnewsradio.com/contractsawards/2016/11/sbas-legal-woes-not-appeal/

The American Small Business League wants thelast word on whether a Fortune 500 company can be considered a "smallbusiness."

The ASBL recently filed an appeal withthe U.S. Court of Appeals for the Ninth Circuit, against a judge'sdecision to dismiss the league's case against the Small BusinessAdministration.

"Of course, I was very disappointed the judgedismissed the case, but the way he dismissed it I was happy with,"said Lloyd Chapman, ASBL president. "Our case was really about trying toget an injunction to two SBA policies that we feel are illegal: thegrandfathering policy that allowed for them to report awards to Fortune 500firms as small business contracts and the exclusionary rule that they useto exclude two-thirds of the federal acquisition budget from theircalculations." 

"When you look at the judge's ruling, itreally doesn't even look like the same case," Chapman continued. "Itlooks like a ruling about someone who's challenging in the way informationis reported."

The dismissal states that Congress established the law requiring SBAto give lawmakers information on federal small business contracting.

"If the Small Business Administration isgiving Congress bad information, then Congress can do something about it,either in an oversight or legislative capacity," the dismissal states. "Havingrequested the report, Congress, not the judiciary, is in the best position to decidewhether it's gotten what it wants."

Every year agencies must report to the SBA onwhether or not they met small business contracting goals, and if an agencydoesn't meet the goal, it must provide SBA with the reasons why the goal wasn'treached and a plan on how to address it.

The SBA shared earlier this year that infiscal 2015, the government reached — and in fact surpassed — its 23percent overall small business procurement goal by spending 25.75 percent, or$90.7 billion on small business contracts.

The ASBL filed its original lawsuit  May 3 against the SBA, claiming theagency has adopted the practice of awarding small business contracts toFortune 500 companies and met its goaling reports through "creativeaccounting."

"SBA characterizes contracts awarded toFortune 500 corporations as 'small business contracts' for the purpose ofclaiming federal agencies have attained their small business contractinggoals," the ASBL stated in its lawsuit.

The ASBL also claims in its suit that the SBAcan only say it meets the 23 percent goal by "creating, through agency fiat, aclass of government contracts which are, solely in the view of the SBA, subjectto exclusion from being considered as part of 'the total value of all primecontract awards' as stated in the Small Business Act."

The SBA in its motion to dismiss, said it'snot SBA's practice of "misclassifying contracts," but rather "the Department ofDefense, [General Services Administration], and NASA — through the FAR,and under guidance from the Office of Management and Budget — make each agencyindividually responsible for submitting and certifying the veracity of itscontracting data to Federal Procurement Data System."

John Shoraka, SBA's associate administratorof Government Contracting and Business Development, told Federal News Radio ina May interview that SBA's exclusion practice was a carryover from the previousadministration, but is being updated.

The judge who dismissed the case said underthe Administrative Procedure Act, federal courts are not allowed to revieweverything an agency does, only "final agency action."

The SBA goaling report doesn't meet the testfor final agency action, according to court documents.

"It neither alters the legal regime to whichindividual agencies or small businesses are subject, nor results in direct andappreciable legal consequences," the dismissal states. "The report does notcarry penalties for an agency's failure to meet the small businessparticipation goal. It does not bind agencies to comply with any proposedremediation plan. Any appreciable consequence of the report — such as anagency's decision to start awarding more contracts to small businesses — would beindirect, because the agencies make the ultimate decision whether and how toaward contracts."

Despite the legal setback, Chapman remainsoptimistic.

"Well, I think Congress passed the SmallBusiness Act and it's the Justice Department's job to enforce that law, and thejudge cannot think that it's up to Congress to do this," Chapman said. "I thinkthe ninth circuit will agree with me, that Fortune 500 firms aren't smallbusinesses, and the word all means all. The Small Business Act says allsmall businesses shall receive a minimum 23 percent of all contracts. Yet theSBA has admitted that they use their exclusionary rule to exclude contracts fora variety of reasons."

To view full article click here: http://federalnewsradio.com/contractsawards/2016/11/sbas-legal-woes-not-appeal/

The small but vocal American Small Business

League this week continued its long-standing

challenge to the Small Business Administration's claims that agencies

are meeting their statutory goals in awarding contracts to qualified small

businesses. 

In an appeal filed in the Ninth Circuit Court

in San Francisco, the group's attorney's challenged a May ruling in the case naming

SBA Administrator Maria Contreras-Sweet and seeking "injunctive and other

appropriate relief" to prevent the SBA from "continuing to misrepresent the

attainment of small business contracting goals to Congress and the American

public."

The league has long charged that definitions

used by the SBA have allowed many large Fortune 500 companies through

subsidiaries to win contracts intended as set-asides for qualified small firms.

"Small Businesses are legally entitled

to 23 percent of the total federal contracting acquisition budget, which

is currently $1.2 trillion," a league spokesman said. "However, the SBA is only

allotting small business 23 percent of $352 billion, resulting in a small

business loss of over $180 billion."

The league's president, Lloyd Chapman, argues

that using the total federal acquisition budget in calculating the correct

percentage of federal contracts awarded to small businesses would raise the

small business share to 23 percent of more than $1 trillion.

Asked for comment, an SBA spokesman said, "We

stand by the ruling of the United States District Court for the Northern

District of California." 

To view full article click here: http://www.govexec.com/contracting/2016/11/small-business-group-renews-suit-challenging-sbas-goal-claims/133290/?oref=govexec_today_nl

The small but vocal American Small BusinessLeague this week continued its long-standingchallenge to the Small Business Administration's claims that agenciesare meeting their statutory goals in awarding contracts to qualified smallbusinesses. 

In an appeal filed in the Ninth Circuit Courtin San Francisco, the group's attorney's challenged a May ruling in the case namingSBA Administrator Maria Contreras-Sweet and seeking "injunctive and otherappropriate relief" to prevent the SBA from "continuing to misrepresent theattainment of small business contracting goals to Congress and the Americanpublic."

The league has long charged that definitionsused by the SBA have allowed many large Fortune 500 companies throughsubsidiaries to win contracts intended as set-asides for qualified small firms.

"Small Businesses are legally entitledto 23 percent of the total federal contracting acquisition budget, whichis currently $1.2 trillion," a league spokesman said. "However, the SBA is onlyallotting small business 23 percent of $352 billion, resulting in a smallbusiness loss of over $180 billion."

The league's president, Lloyd Chapman, arguesthat using the total federal acquisition budget in calculating the correctpercentage of federal contracts awarded to small businesses would raise thesmall business share to 23 percent of more than $1 trillion.

Asked for comment, an SBA spokesman said, "Westand by the ruling of the United States District Court for the NorthernDistrict of California." 

To view full article click here: http://www.govexec.com/contracting/2016/11/small-business-group-renews-suit-challenging-sbas-goal-claims/133290/?oref=govexec_today_nl