SBA “Contemplates” Consolidating 8(a) and All Small Mentor-Protégé ProgramsThe U.S. Small Business Administration (SBA) recently issued a notice in the Federal Register stating that it “is contemplating making substantive changes to the regulations” governing the 8(a) Business Development program, and that it “requests comments and input on how best to reduce unnecessary or excessive regulatory burdens” on the program.

Of particular importance, the SBA states that the “planned rulemaking contemplates consolidating the All Small Mentor Protégé Program and the 8(a) Mentor Protégé Program into one program and possibly eliminating SBA’s role in approving joint venture agreements for 8(a) competitive contracts.”

The SBA further states that it is contemplating an “amendment” to its regulations that “would allow mentors participating in SBA’s mentor protégé program to have more than three protégés at one time.” The SBA goes on to state, however, that it “is concerned that allowing a large business mentor to have additional protégé firms at one time could permit them to unduly benefit from small business contracts, through joint ventures with their protégé firms, which they would otherwise not be eligible for.” Nevertheless, the SBA “is seeking comments on whether lifting the current regulatory limit would benefit small businesses and further the programs’ purpose.”

If you have any questions about the proposed changes to the SBA’s regulations, or about any other related issues, please do not hesitate to contact Aron Beezley.

All Small Mentor-Protégé Program Year-End Report: Fast Figures Small and Large Businesses Need to KnowThe Small Business Administration (SBA) started accepting applications for the new All Small Mentor-Protégé Program (ASMPP) in October 2016, but SBA has seen a surge in applications in 2017.

Under the ASMPP, any small business—including Historically Underutilized Business Zone (or HUBZone) small businesses, 8(a) small businesses, veteran-owned and service-disabled veteran-owned small businesses (VOSBs/SDVOSBs), woman-owned and economically disadvantaged woman-owned small businesses (WOSBs/EDWOSBs)—may enter into an agreement with a large business under which the large business will provide mentorship and assistance. In return, the large and small businesses are permitted to joint venture to perform federal small business set-aside contracts.

Previously, we provided a mid-year report on fast figures about the ASMPP that both large and small businesses need to know. Here is our year-end update to those figures:

356  SBA reports that, as of Dec. 1, 2017, it has approved 356 different ASMPP agreements.
1,116 As of Dec. 1, 2017, there have been more than 1,116 views of the new SCORE-SBA ASMPP Webinar.
16 SBA reports that, as of Dec. 8, 2017, 16 8(a) Mentor-Protégé Program participants transferred to the new ASMPP.
64 SBA reports that at least 64 of the 356 SBA-approved ASMPP agreements were approved under the protégé’s secondary—rather than primary—North American Industry Classification System (or NAICS) code.
72 SBA reports that, as of Dec. 8, 2017, 72 ASMPP applications were declined by SBA.
112 SBA reports that at least 112 of the ASMPP participants are 8(a) firms.
110 SBA reports that at least 110 of the ASMPP participants are SDVOSBs.
47 SBA reports that at least 47 of the ASMPP participants are HUBZone companies.
54 SBA reports that at least 54 of the ASMPP participants are EDWOSBs.
65 SBA reports that 65 of the ASMPP participants are small businesses without any other set-aside status.
42 SBA reports that ASMPP participants are based or incorporated in 42 different U.S. states/territories/districts.

If you have any questions about the ASMPP or any related issues, please feel free to contact Aron Beezley or Frederic Smith.

OSHA and Workplace Violence: What Contractors Need to KnowAlthough most contractors go to great lengths to promote jobsite safety, the fatal injury rate in the construction industry – which employs almost 6.5 million people – still exceeds that of any other U.S. industry. The Occupational Safety and Health Act (OSHA) has an entire section of regulations just for contractors. The OSHA regulations help contractors mitigate jobsite hazards such as falling, electrocution, and chemical exposure.  Outside of these known jobsite risks looms the less familiar, but possibly just as dangerous, threat of workplace violence. Workplace violence may include any act of violence, by any individual, against an employee. Employers in all industries may face OSHA citations for failing adequately to prevent it. Yet OSHA does not have a single standard that specifically addresses workplace violence. So what is a contractor to do?

Although OSHA does not regulate workplace violence per se, its “General Duty Clause” requires employers to take “feasible means” to prevent against known threats of violence. The General Duty Clause requires employers to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The elements of a General Duty Clause violation are: (1) a hazard in the workplace; (2) the employer or the employer’s industry recognizes the hazard; (3) the hazard is likely to cause death or serious physical harm; and (4) there is a feasible means of eliminating or materially reducing the hazard.

In the context of workplace violence which might give rise to an OSHA citation, a key element is that the hazard must be known to the employer or the employer’s industry. Thus, OSHA citations for breaches of the General Duty Clause typically arise in healthcare — for example, in a psychiatric hospital where employees regularly face violent patients. In the construction realm, these citations are much less common. Nonetheless, a contractor could violate the General Duty Clause by ignoring or failing to recognize obvious threats or signs that an individual was going to commit an act of violence against other employees.

While the foregoing focuses on OSHA citations, a contractor could also face civil liability in a lawsuit by an injured employee against an employer. Furthermore, while the availability of workers’ compensation may bar many such lawsuits, contractors should not blindly rely on workers’ compensation insurance as a shield.  If the contractor knew about an obvious threat and ignored it, an employee may be able to circumvent the usual bar and recover directly against the contractor.

Despite the lack of specific regulation beyond the General Duty Clause, OSHA has voluntary guidelines to prevent and mitigate workplace violence. The guidelines provide a helpful outline of a preventative program:

  • Identify and authorize individuals within the company to implement anti-violence programs.
  • Assess what positions or tasks are most likely to lead to violent incidents.
  • Create measures to control the risk.
  • Train employees to identify potential violence and handle violent incidents.
  • Evaluate the effectiveness of the company’s program.
  • Make sure that the hiring process thoroughly vets potential employee backgrounds.

Contractors should endeavor to prevent violence by employees and third parties just as any other employer.  Most contractors have numerous projects occurring at the same time, and workers may face different threat levels based on the location of those projects. Thus, contractors should tailor preventive measures to reflect the location and nature of the projects. For example, if a project is in a neighborhood with a high crime rate, a contractor should devote more resources to safety training and dedicate on-site management to preventing and mitigating harm.

A critical element, and good starting point, is general awareness of potential harm in the first place. This starts with the hiring process and carries through to evaluating the general safety of workers on particular projects and raising awareness of threats on a daily basis.