Public-Private Partnerships

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.

All Small Mentor-Protégé Program Mid-Year Report: Fast Figures Small and Large Businesses Need to Know

The 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 the first six months of 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.

As a mid-year report, here are some fast figures about the ASMPP that both large and small businesses need to know:

229 SBA reports that, as of June 27, 2017, it has approved 229 different ASMPP agreements.
3900 SBA reports that, as of June 27, 2017, there have been more than 3,900 views of SBA’s online ASMPP tutorial.
9 SBA reports that, as of June 27, 2017, 9 8(a) Mentor-Protégé Program participants transferred to the new ASMPP.
11 SBA reports that at least 11 of the 229 SBA-approved ASMPP agreements were approved under the protégé’s secondary – rather than primary – North American Industry Classification System (or NAICS) code.
28 SBA reports that, as of June 27, 2017, 28 ASMPP applications were declined by SBA. SBA also reports that at least 28 of the ASMPP participants are 8(a) firms.
35 SBA reports that at least 35 of the ASMPP participants are SDVOSBs.
17 SBA reports that at least 17 of the ASMPP participants are HUBZone companies.
6 SBA reports that at least 6 of the ASMPP participants are EDWOSBs.
9 SBA reports that at least 9 of the ASMPP participants are WOSBs.
27 SBA reports that ASMPP participants are based or incorporated in 27 different U.S. states/territories/districts.

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

Status of Public Private Partnerships in TexasIn recent years, the state of Texas jumped headlong into public-private partnerships in a variety of different arenas. Often called PPP, 3P or P3, this delivery method has rapidly become the go-to avenue for delivering projects that a governmental authority does not have either the funding or expertise to complete on its own. In Texas, the first public-private partnership projects to gain widespread notoriety were in the transportation infrastructure space. Specifically, the first big projects were concession agreements with private companies to finance, design, build, operate and maintain public roads, such as the LBJ Express and North Tarrant Express projects. These projects were not without controversy, but have largely been successful. Through the construction phase, the concessionaires and their design-build contractors have successfully delivered massive projects ahead of schedule and within budget.

The Texas Department of Transportation accomplishes these projects through Comprehensive Development Agreements that regulate everything from financing, revenue sharing, construction standards and preliminary plans detailing the scope of the project. As of the date of this post, the Texas Department of Transportation is a party to 16 Comprehensive Development Agreements. Of those 16, four are concession agreements that contemplate private management of state roadways and some form of toll revenue sharing.

Once the path was paved (pun intended) by large scale infrastructure projects, the availability and use of public-private partnerships as a delivery method exploded. For example: the Texas Rangers baseball team is part of a partnership with the City of Arlington to build a new stadium; Texas A&M University and Servitas are constructing a $368 million, 50-acre student housing project; and several local school districts are using P3 to raise funds for new facilities in exchange for naming rights.

The proliferation and increasing popularity of public-private partnerships has necessitated legislation across the country to govern their use, implementation and particularly procurement. At this point, many states have public-private partnership legislation of some kind, although the breadth of the legislation varies widely. In Texas, there are specific P3 enabling statutes that deal with highway and toll road projects (see Texas Transportation Code Chapters 22223, 228, 362, and 37071), and a more general enabling statute (see Texas Government Code Chapters 2267 and 2268) for most other types of government projects. In some cases, there have been statutes enacted authorizing specific projects, such as a biotechnology park (see Texas Government Code § 488.006). These statutes provide the legal and regulatory framework that govern the public-private partnership procurement and administration process and must be carefully considered when contemplating a new project, whether you are on the government side or the private side of the deal. If you are on the private side, but are not the developer, then one must examine the statutory and contractual framework to determine whether you have lien rights, surety bond requirements (“little Miller Act”), and other rights or obligations that are often considered “routine” on public projects.

Click here to view as PDF

Nathan Graham is a partner in Bradley’s new Houston office. His practice focuses primarily on complex commercial litigation and transactions with a particular focus on construction, public-private partnerships, and corporate matters.