<p>Morrison Foerster’s <em>Government Contracts Insights</em> provides our in-depth analysis of developments and trends impacting government contracting. Through <em>Insights</em>, our attorneys offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. We also examine a full array of non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.</p><p>Morrison Foerster’s nationally recognized Government Contracts and Public Procurement practice represents the world’s leading companies in the aerospace and defense, intelligence, cybersecurity, information technology, financial and professional services, education, healthcare, infrastructure, and logistics support sectors. We are enlisted to address our clients’ most complex and important legal issues. Our work includes contract and subcontract negotiation and other transactional matters, business and regulatory compliance counseling, internal investigations, bid protests, and a wide array of enforcement and litigation matters. Our clients range from Fortune 50 companies to small and medium-sized companies just entering the public sector. We advise both U.S. and non-U.S. companies involved in municipal, state, federal, and non-U.S. procurement matters.</p><h2>ABOUT MORRISON FOERSTER</h2><p><span>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies.</span> <span>Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on <em>The American Lawyer</em>’s A-List</span><span>. Year after year, the firm receives significant recognition from </span><em>Chambers</em><span> and </span><em>The Legal 500</em><span> across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.</span></p>

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<p>Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.</p><p>Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.</p><p>Tina routinely advises clients concerning:</p><ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul><p>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.</p><p>Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.</p><p>Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.</p><h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

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<p>Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.</p>

Tina D. Reynolds

<p>Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.</p><p>Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.</p><p>Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.</p><p>Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the <em>Law Review</em>, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.</p>

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<p>Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.</p>

<p>Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.</p>

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><span class='youtube-wrapper'><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></span></div><p>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.</p><p>Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.</p><p>He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.</p><p>Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.</p><p>Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.</p>

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<p>Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.</p>

J. Alex Ward

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<p class="p1"><span class="s1">Morrison Foerster’s <em>Government Contracts Insights</em> blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through <em>Insights</em>, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.</span></p><p class="p1">Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.</p><p class="p1">Never miss a post. Subscribe to get real-time updates.</p>

<p><span>Brad is a partner in Morrison Foerster’s Litigation Department, Managing Partner of the Austin office, and Chair of the firm’s Israel practice. He is the former Co-Chair of the firm’s Global Litigation Practice and the Government Contracts + Public Procurement Practice. </span></p>

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SHARE IT Act Requires Agencies to Share Custom-Developed Source Code Throughout the Government

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

FY25 NDAA: Promoting Nontraditional Acquisition While Securing the Supply Chain, and More

Enforcing New Recertification Rules: Changes to SBA’s Size Protest Regulations

Shoot First, Ask Questions Later: Final Rule Keeps FAR’s Inconsistent Treatment of Proposed Debarments

<h2>SBA’s 8(A) BUSINESS DEVELOPMENT PROGRAM</h2><h4>What is the 8(a) program and what is it intended to do?</h4><p>The 8(a) program, officially designated the 8(a) Business Development program, is designed to assist small minority-owned businesses compete in the wider American economy. See 13 C.F.R. Part 124</p><h4>Do I Qualify? Eligibility checklist (get a preliminary assessment at SBA’s Certify website)</h4><ul><li>Be a small business (see below)</li><li>Not already have participated in the 8(a) program</li><li>Be at least 51 percent <em>owned and controlled</em> by U.S. citizens who are economically and socially disadvantaged (see below)</li><li>Have one or more disadvantaged individuals manage day-to-day operations and also make long-term decisions (see below regarding negative control)</li><li>Have all its principals demonstrate good character</li><li>Show potential for success and be able to perform successfully on contracts</li></ul><p><em>See</em> <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=ee1595e6b78f39b1563ab8a8440bc7cc&mc=true&tpl=/ecfrbrowse/Title13/13cfr124_main_02.tpl">13 C.F.R. §124</a> to view full text of the 8(a) regulations</p><h4>How “<em>small</em>” must I be to qualify?</h4><p>This depends on the industry. The government has assigned each industry a different “NAICS” code. For each code, the SBA publishes a size standard, measured in either number of employees or average annual receipts. <em>See</em> <a rel="noopener" target="_blank" href="https://www.ecfr.gov/cgi-bin/text-idx?SID=ed5499137c7ec709a76c04cf27d845f8&mc=true&node=pt13.1.121&rgn=div5#se13.1.121_1101">13 C.F.R. §121</a> for full details.<a name="_ftnref1" href="#_ftn1">[1]</a></p><ul><li>For purposes of 8(a) eligibility, the SBA relies on the concern’s* primary NAICS code to determine the appropriate size standard.</li><li>In determining the size of a concern, SBA will include the size of the concern’s domestic and foreign affiliates.</li></ul><p>*The SBA uses the term “concern” to denote a business entity organized for profit. <em>See</em> 13 C.F.R. §121.105. <a rel="noopener" target="_blank" href="https://www.ecfr.gov/cgi-bin/text-idx?SID=ed5499137c7ec709a76c04cf27d845f8&mc=true&node=pt13.1.121&rgn=div5#se13.1.121_1105">Only for profit concerns qualify as a small business.</a></p><h4>Who is “<em>socially disadvantaged</em>”?</h4><p>Individuals subjected to racial or ethnic prejudice or cultural bias for reasons beyond their control and without regard to their individual qualities, including, but not limited to, the following presumed groups: Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans and Subcontinent Asian Americans, but this presumption may be rebutted.<a name="_ftnref1" href="#_ftn2">[2]</a><em>See </em>13 C.F.R. <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=391ca76942a75c698de03fe273b52b3e&mc=true&node=se13.1.124_1103&rgn=div8">§124.103</a></p><p><a name="_ftn1" href="#_ftnref1">[1]</a> While some racial or ethnic groups are presumed socially disadvantaged, individuals not belonging to the enumerated groups may still qualify for the 8(a) program as socially disadvantaged if able to provide evidence showing they are more likely than not socially disadvantaged.</p><h4>Who is “<em>economically disadvantaged</em>”?</h4><p>Individuals who are socially disadvantaged and who lack the capital and credit to compete in the free enterprise system compared with those not socially disadvantaged.  <em>See </em><a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=d0420e7bb7db7e5728d8b58c3e85abe2&mc=true&node=se13.1.124_1104&rgn=div8">13 C.F.R. §124.104</a></p><p>Individuals are economically disadvantaged if they:  (1) have personal net worth of $750,000 or less; (2)have average adjusted gross income for three years of $350,000 or less; and (3) have assets (including primary residence and the value of the applicant/Participant concern) that do not exceed$6 million in fair market value<a name="_ftnref1" href="#_ftn3">[3]</a></p><p><a name="_ftn1" href="#_ftnref1">[1]</a> These limits are recent changes, and may differ from older SBA guidance.  For more details, see 85 FR 27650–01.</p><h4>What does the SBA mean by “<em>ownership</em>”?</h4><p>Ownership must be at least 51% unconditional and direct. <em>See </em><a href="https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=7a10b098746a17e502ac691077c50e80&mc=true&n=pt13.1.124&r=PART&ty=HTML#se13.1.124_1105">13 C.F.R §124.105</a></p><ul><li>Direct means the business seeking 8(a) qualification cannot be owned by another business entity or a trust<a name="_ftnref1" href="#_ftn4">[4] </a>that is in turn owned by one or more disadvantaged individuals.</li><li>If a partnership, the 51% rule applies to every class of partners, and must be reflected in the partnership agreement.</li><li>If a limited liability company (LLC), the 51% rule applies to each class of member interest.</li><li>If a corporation, then the 51% rule applies to each class of voting stock and the aggregate of all outstanding stock. Note: the SBA disregards any unexercised stock options by disadvantaged individuals, but treats unexercised stocks held by non-disadvantaged individuals as exercised.<a name="_ftnref2" href="#_ftn5" style="font-size: 1rem;">[5]</a></li></ul><h4>Are there limits on ownership by non-disadvantaged individuals and concerns?</h4><p>Yes, a non-disadvantaged individual (in the aggregate with all immediate family members) or non-8(a) concern may not own more than a 10% interest in a participant in the development phase or 20% of a participant in the transitional stage of the program if that individual or concern owns 10% or more of another 8(a) participant. <em>See </em><a href="https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=7a10b098746a17e502ac691077c50e80&mc=true&n=pt13.1.124&r=PART&ty=HTML#se13.1.124_1105">13 C.F.R. §124.105(h)</a></p><p>A non-8(a) concern, or its principal, in the same or similar line of business, may have an equity ownership interest of up to 10% at the development stage, and 20% at the transitional stage.  However, a <em>former</em> participant in the same or similar line of business, or its principal, may have an equity ownership interest of up to 20% at the development stage, and 30% at the transitional stage.</p><h4>What does the SBA mean by “<em>control</em>”?</h4><p>The SBA distinguishes control and ownership; control refers to both strategic planning and day-to-day management and administration. <em>See </em><a href="https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=7a10b098746a17e502ac691077c50e80&mc=true&n=pt13.1.124&r=PART&ty=HTML#se13.1.124_1106">13 C.F.R. §124.106</a></p><ul><li>To qualify, a disadvantaged individual (although not necessarily the owner) must (1) be a full-time manager during normal firm hours, (2) hold the highest office, (3) not engage in outside employment without written approval of the SBA<a name="_ftnref1" href="#_ftn6">[6]</a></li><li>In a partnership, one or more disadvantaged individuals must serve as a general partner, with control over all partnership decisions</li><li>In a limited liability company, one of more disadvantaged individuals must serve as management members, with control over all decision-making of the company</li><li>In a corporation, one or more disadvantaged individuals must control the Board of Directors</li></ul><h4>What are common pitfalls in qualifying for 8(a) status?</h4><ul><li>Affiliation with Minority Owners due to Negative control: As mentioned above, the size of a concern includes the size of its affiliates. A concern is affiliated with any individual or entity that can exercise control over the concern.  Control by an affiliate may be either positive or negative.  Negative control exists where a minority shareholder has the ability, through the concern’s charter, by-laws, or shareholders agreement, to prevent a quorum, or otherwise block action by the board of directors or to otherwise control day to day operations.  These provisions in a concern’s organizational documents are often overlooked</li><li>Transfer of ownership rights: an 8(a) participant may change ownership or business structure only if (1) the SBA gives prior written approval,<a name="_ftnref1" href="#_ftn7">[7]</a> and (2) one or more disadvantaged person(s) remain in control</li><li>Owner is other than highest position<span style='color:rgb(82, 83, 87);font-size: undefined;'>: To qualify and remain in compliance, the highest position must be held by a disadvantaged person</span></li></ul><h2>The SBA’s HUBZone Program</h2><h4>What is the HUBZone Program?</h4><ul><li>Fuels growth in historically underutilized business zones by:  <br><ul><li>Limiting competition for (setting aside) certain contracts to businesses in these zones</li><li>Giving preferential consideration to those businesses in full and open competition</li></ul></li><li>Goal: award more than 3% of federal contract dollars to HUBZone-certified companies</li><li>HUBZone certified businesses can still compete for contracts under other socio-economic programs</li></ul><h4>What businesses qualify for the HUBZone program?</h4><p>To qualify, a business must:</p><ul><li>Be small for its primary NAICS code;<a name="_ftnref1" href="#_ftn8">[8]</a> size is based on number of employees and/or revenue (See if your size qualifies <a href="https://www.sba.gov/size-standards/">here</a>)</li><li>Be at least 51% <em>owned and controlled</em> by U.S. citizens, a Community Development Corporation, an agricultural cooperative, a Native Hawaiian organization, or an Indian tribe</li><li>Have its principal office located in a HUBZone: <a href="https://maps.certify.sba.gov/hubzone/map">HUBZone Map</a></li><li>Have at least 35 percent of its employees live in a HUBZone</li></ul><p>See the full qualification criteria at <a href="https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr;sid=7f10b57ab16b755f85493361636352c1;rgn=div5;view=text;node=13%3A1.0.1.1.21;idno=13;cc=ecfr#sp13.1.126.b">13 C.F.R. §126 Subpart B</a>; check if you qualify at SBA’s Certify website</p><h4>Who owns a small business concern?</h4><p>The SBA defines an owner as a person who owns any legal or equitable interest in the concern. The SBA has recently clarified that another entity may be the qualifying owner, if that entity is in turn owned and controlled by  U.S. citizens. <em>See</em> <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=669a237ca58894524ca67fbe97c3d723&mc=true&node=pt13.1.126&rgn=div5#se13.1.126_1201">§126.201</a>. In determining ownership, the SBA applies the following rules:</p><ul><li>For corporations, any person owning stock, whether voting or not, is an owner. Options and convertible debts are considered exercised</li><li>In Partnerships, all partners, whether general or limited, are considered owners</li><li>In sole proprietorships, the proprietor is the owner</li><li>In limited liability companies, each member is considered an owner</li></ul><h4>Who controls a business?</h4><p>The SBA distinguishes control and ownership; control means both strategic decision-making and day-to-day management of the business concern.<em> See</em> <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=669a237ca58894524ca67fbe97c3d723&mc=true&node=pt13.1.126&rgn=div5#se13.1.126_1202">§126.202</a>.</p><ul><li>Examples of persons who the SBA considers to have control include officers, directors, general partners, managing partners, managing members, and managers</li><li>Significant control may also be exercised by key employees with expertise or responsibilities related to the concern’s primary economic activity; the SBA considers the potential control of such key employees on a case-by-case basis</li></ul><h4>What does it mean to have a <em>principal office</em> located in a HUBZone?</h4><p>The principal office is defined as the location where the greatest number of employees at any one location perform their work.<em> See</em> <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=669a237ca58894524ca67fbe97c3d723&mc=true&node=pt13.1.126&rgn=div5#se13.1.126_1103">§126.103</a>, “Principal Office”</p><ul><li>Employees are deemed to work where they spend more than 50% of their hours; if time is split equally between a HUBZone and non-HUBZone location, the employee is deemed to work in a non-HUBZone location (i.e. a 51% rule applies to qualify)</li><li>A location only qualifies as the principal office if the concern conducts business there</li><li>If a concern is primarily a services or construction business, then the SBA excludes employees who perform more than 50% of their work at a contracted job-site from its consideration.  However, if all employees perform more than 50% of their work at a job site, then the principal office requirement is not met.</li></ul><h4>Who qualifies as an employee?</h4><p>An employee is any individual working on a full-, part-time, or other basis for at least 40 hours during the four-week period prior to either the application submission or recertification.  The SBA looks at a concern’s payroll records, and considers the circumstances in total. <em>See</em> <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=669a237ca58894524ca67fbe97c3d723&mc=true&node=pt13.1.126&rgn=div5#se13.1.126_1103">§126.103</a>, “Employee”</p><ul><li>Examples of employees: temporary employees, an owner who works 40 or more hours for the concern, a sole owner who works less than 40 hours but has not hired a substitute, and individuals receiving compensation in kind of demonstrable financial value</li><li>Examples of non-employees: individuals not receiving compensation and are not owners, individuals receiving deferred compensation, independent contractors paid via IRS Form 1099, and subcontractors</li></ul><h4>What does it mean to reside in a HUBZone?</h4><p>An employee counted as a HUBZone resident must reside full time at a location for at least 180 days prior to the date of application, and must both remain a resident of the HUZone and an employee for a 180 days or more after certification to qualify.<em> See</em> <a href="https://www.ecfr.gov/cgi-bin/text-idx?SID=669a237ca58894524ca67fbe97c3d723&mc=true&node=pt13.1.126&rgn=div5#se13.1.126_1103">§126.103</a>, “reside”</p><ul><li>The SBA first looks at the address indicated on a driver’s license or voter registration; if such documentation is unavailable, the SBA requires specific proof such as deeds, leases, or utility bills. If the documentation does not demonstrate 180 days of residency, the SBA requires a signed statement indicating the dates of residency</li><li>A concern must certify at the time of application that it will “attempt to maintain” having 35% of its employees reside in the HUBZone during contract performance. Attempt to maintain means making substantive and documented efforts, which may include written offers of employment, published advertisements, and attendance at job fairs</li><li>If employees temporarily reside overseas to complete a contract, they are deemed to reside at their US residence</li></ul><h4>How do I maintain certification?</h4><p>To maintain HUBZone certification, a concern must annually represent to the SBA, within 30 days of the anniversary of original certification, that it continues to meet all HUBZone eligibility criteria.<em> See</em> <a href="https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr;sid=7f10b57ab16b755f85493361636352c1;rgn=div5;view=text;node=13%3A1.0.1.1.21;idno=13;cc=ecfr#se13.1.126_1500">§126.500</a> for details</p><ul><li>If the concern is not currently performing a HUBZone contract, it must represent that 35% of its employees are HUBZone residents</li><li>If the concern is currently performing a HUBZone contract, then it must represent that 20% or more of its employees are HUBZone residents</li><li>The SBA will accept the representation, unless it has reason to question the concern’s continued eligibility</li></ul><p>The SBA will review each certified concern every three years to ensure continued eligibility.</p><h4>Who can I contact?</h4><p><a href="https://www.sba.gov/offices/headquarters/ohp">Office of the HUBZone program</a> <br> 409 Third St. SW suite 8800 <br> Washington, DC 20416 <br> <a href="mailto:hubzone@sba.gov">hubzone@sba.gov</a></p><p>HUBZone offers eligibility assistance on Thursdays from 2-3 p.m. E.T. Call 1-202-765-1264 access code 63068189#, or <a href="https://dialin2.lync.com/ce93c969-15b4-40a4-955a-df7f23cda5b2">find a local number</a>.</p><h4>What if I want more information?</h4><p>View PDF versions of information about the HUBZone Program:</p><ul><li>HUBZone Fact Sheet,</li><li>Program Improvements,</li><li>HUBZone Flexibilities under COVID-19, and</li><li>SBA’s latest FAQs<span style='color:rgb(82, 83, 87);font-size: undefined;'>.</span></li></ul><p><a name="_ftn1" href="#_ftnref1">[1]</a> The rules for calculating size are significantly different for Alaska Native Corporations, Native Hawaiian Organizations and tribal concerns.  <em>See</em> <a href="https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=a353c52b3a124e6d38a0d9d043922543&mc=true&n=sp13.1.124.a&r=SUBPART&ty=HTML#se13.1.124_1102">13 C.F.R. §124.102</a> for more information</p><p><a name="_ftn2" href="#_ftnref2">[2]</a> While some racial or ethnic groups are presumed socially disadvantaged, individuals not belonging to the enumerated groups may still qualify for the 8(a) program as socially disadvantaged if able to provide evidence showing they are more likely than not socially disadvantaged.</p><p><a name="_ftn3" href="#_ftnref3">[3]</a> These limits are recent changes, and may differ from older SBA guidance.  For more details, see 85 FR 27650–01.</p><p><a name="_ftn4" href="#_ftnref4">[4]</a> Ownership by a trust, such as a living trust, however, may be treated as the functional equivalent of ownership by a disadvantaged individual where the trust is revocable, and the disadvantaged individual is the grantor, a trustee, and the sole current beneficiary of the trust.</p><p><a name="_ftn5" href="#_ftnref5">[5]</a> Regarding dividends and distributions, one or more disadvantaged individuals must be entitled to receive: (a) at least 51% of annual distributions, (b) 100% of the value of stock owned by them if sold, (c) at least 51% of retained earnings and 100% of the unencumbered value of each stock owned in the event of dissolution of the corporation.</p><p><a name="_ftn6" href="#_ftnref6">[6]</a> Non-disadvantaged individuals may be involved in the management of the concern, but may not exercise actual control or have the power to control the concern.</p><p><a name="_ftn7" href="#_ftnref7">[7]</a> Prior SBA approval is not required, however, where all non-disadvantaged individual (or entity) owners involved in the change of ownership own no more than a 20% interest in the concern both before and after the transaction, the transfer results from the death or incapacity due to a serious, long-term illness or injury of a disadvantaged principal, or the disadvantaged individual or entity in control of the Participant will increase the percentage of its ownership interest.</p><p><a name="_ftn8" href="#_ftnref8">[8]</a> However, in order to <em>remain</em> eligible as a HUBZone small business concern, the concern need only qualify as small under one or more NAICS codes in which it does business.</p>

IAP Worldwide Servs., Inc.

Flight Support, Inc.

DynCorp Int’l LLC

Raytheon Co.

DynCorp International, LLC v. United States

URS Federal Servs., Inc.

DynCorp International, LLC

Planned Sys. Int’l, Inc.

Threat Mgmt. Group, LLC

Vencore Servs. & Solutions, Inc.

Jacobs Tech., Inc.

Cubic, Inc.

American Institutes for Research v. State of New Mexico

CACI-WGI, Inc.

Fluor Intercontinental, Inc. v. IAP Worldwide Servs., Inc.

IAP World Servs., Inc.

Size Appeal of IAP World Servs., Inc.

Al-Ghanim v. IAP Worldwide Servs., Inc.

O’Gara Training & Servs., LLC

IAP Worldwide Servs., Inc. v. Johnson Controls, Inc.

AAR Mobility Sys.

Matt Martin Real Estate Mgm’t, LLC v. United States

Pyramid Real Estate Servs., LLC v. United States

Harrington, Moran, Barksdale, Inc.

Homesource Real Estate Asset Servs., Inc. v. United States

Ocean Ships, Inc.

Keystone Sealift Servs., Inc.

ITT Corp., Sys. Div.

IAP Worldwide Servs., Inc. v. Fluor Intercontinental, Inc.

FedSys, Inc.

Academy Facilities Mgm’t v. United States

Academy Facilities Management -- Advisory Opinion

Evans Security Solutions, Inc.

Contingency Mgm’t Group, LLC and IAP Worldwide Servs., Inc.

Kellogg Brown & Root Services, Inc.

Liberty Power Corp.

J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

Anser Advisory

ARKA

Arlington Capital

Battle Investment Group

Behrman Capital

Cadmus

Chainalysis

CollabraLink

Definitive Logic

Emmes

Enlightenment Capital

Grant Thornton

Griffon Corporation

eTelligent

L3Harris

Jacobs

LinQuest Corporation

Micross

Sagewind

Sedgwick

Sigma Defense

teKnoluxion

The Building People

VariQ

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Damien is a partner in the firm’s Government Contracts & Public Procurement practice. He represents clients in all facets of government contracts transactions, as well as regulatory counseling, subcon

Damien Specht

Damien C. Specht

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Associate

Alissandra McCann

8(a): The Small Business Administration’s Program for Socially & Economically Disadvantaged Businesses (Guide 3 of 4)