Important Update Re: Small Business Runway Extension Act of 2018We recently reported that, on December 17, 2018, President Trump signed into law a bill that amends the Small Business Act to require that the size of a federal contractor be measured by an average of five years—rather than three years—of revenue for the purpose of determining small business program eligibility. As commentators have noted, the bill did not have a specific effective date, and thus it should be presumed to be effective immediately under longstanding principles of statutory interpretation.

However, the Small Business Administration (SBA) very recently issued an Information Notice, which states:

SBA is receiving inquiries about whether the Runway Extension Act is effective immediately—that is, whether businesses can report their size today based on annual average receipts over five years instead of annual average receipts over three years. The Small Business Act still requires that new size standards be approved by the Administrator through a rulemaking process. The Runway Extension Act does not include an effective date, and the amended section 3(a)(2)(C)(ii)(II) does not make a five-year average effective immediately.

The change made by the Runway Extension Act is not presently effective and is therefore not applicable to present contracts, offers, or bids until implemented through the standard rulemaking process. The Office of Government Contracting and Business Development (GCBD) is drafting revisions to SBA’s regulations and SBA’s forms to implement the Runway Extension Act. Until SBA changes its regulations, businesses still must report their receipts based on a three-year average.

Interestingly, the SBA indicated in an April 2018 Federal Register notice that it was not in favor of changing the lookback period from three years to five years:

SBA believes that calculating average annual receipts over three years ameliorates fluctuations in receipts due to variations in economic conditions. SBA maintains that three years should reasonably balance the problems of fluctuating receipts with the overall capabilities of firms that are about to exceed the size standard. Extending the averaging period to five years would allow a business to greatly exceed the size standard for some years and still be eligible for Federal assistance, perhaps at the expense of other smaller businesses. Such a change is more likely to benefit successful small business graduates by allowing them to prolong their small business status, thereby reducing opportunities for currently defined small businesses.

Thus, it is possible that the SBA’s seemingly unfavorable view of the of the Small Business Runway Extension Act informed its decision to issue the Information Notice—even though, as commenters have noted, the validity of the SBA’s position about the present effect (or lack thereof) of the Act is questionable.

The bottom line is this: The SBA presumably will update its regulations in the near future to include the five-year lookback period set forth in the Small Business Runway Extension Act. Accordingly, any confusion created by the SBA’s recent Information Notice hopefully will be ameliorated fairly soon. In the meantime, whether the three-year lookback period or five-year lookback period applies needs to be analyzed on a case-by-case, situation-by-situation, and company-by-company basis.

If you have any questions about any of the foregoing issues, please do not hesitate to contact Aron Beezley.

There are no opinions more important to us than those of our clients. For this reason, Bradley’s Construction and Procurement Group is grateful for the many recognitions we received in 2018. Our priority for the new year remains to exceed our clients’ expectations of value, service and results.

Infographic of Construction Practice Group Recognitions

U.S. News & World Report – Best Law Firms 2018

Based directly on client feedback, our practice was recognized as the “Law Firm of the Year” in Construction Law for 2018 by U.S. News & World Report. In the same publication, the group has held a National Tier 1 ranking in Construction Law and a National Tier 2 ranking in Construction Litigation for nine consecutive years.

The group has also attained Metropolitan Tier 1 rankings for Construction Law in Birmingham, Houston, Jackson, Nashville, and Washington, D.C.

Chambers USA

Chambers USA ranks lawyers in specific areas of law based on direct feedback received from clients. Bill Purdy, Mabry Rogers, and Ralph Germany are ranked for Litigation: Construction. Doug Patin, Bob Symon, and Ian Faria are ranked for Construction. The firm’s Washington, D.C. office is recognized as a “Leading Firm” for Construction Law.

The Best Lawyers in America®, 2019 Edition

These team members were recognized for Construction Law/Litigation and Arbitration:

Jim Archibald Ralph Germany Walter Sears
Ryan Beaver Jon Paul Hoelscher Bob Symon
Axel Bolvig David Owen David Taylor
Jim Collura Douglas Patin Mabry Rogers (Arbitration)
Monica Wilson Dozier David Pugh Douglas Patin (Arbitration)
Ian Faria Bill Purdy David Taylor (Arbitration)
Eric Frechtel Mabry Rogers Jeff Davis (Commercial Litigation)

Lawyer of the Year

Best Lawyers recognizes only one attorney per metropolitan area for this distinction:

Ian Faria – “Lawyer of the Year” for Construction Litigation (Houston)
David Pugh – “Lawyer of the Year” for Construction Law (Birmingham)
Bill Purdy – “Lawyer of the Year” for Construction Law (Jackson)

Super Lawyers

26 of our construction attorneys are recognized as Super Lawyers or Rising Stars:

Jim Archibald Jackson Hill Bill Purdy
Aron Beezley Jon Paul Hoelscher Mabry Rogers
Axel Bolvig Aman Kahlon Justin Scott
Jeff Davis Ryan Kinder Wally Sears
Monica Dozier Matt Lilly Andrew Stubblefield
Ian Faria Luke Martin Bob Symon
Mary Frazier Sarah Osborne David Taylor
Amy Garber David Owen Bryan Thomas
Ralph Germany Doug Patin

American College of Construction Lawyers

Jim Archibald Bill Purdy Mabry Rogers Wally Sears

Construction Lawyers Society of America

Jim Archibald Mabry Rogers (2019 President) David Taylor
Ian Faria Bob Symon Bryan Thomas
Eric Frechtel

Who’s Who Legal: Construction

Eight attorneys are listed as among the world’s leading construction lawyers in Who’s Who Legal:

Jim Archibald Doug Patin Mabry Rogers
Ian Faria David Pugh Bob Symon
Arlan Lewis Bill Purdy  

We thank our many clients who represent the very best in the industry and whom we have the pleasure of serving.

The Three Most Important Bid Protest Decisions of 2018Bradley attorneys Aron Beezley, Patrick Quigley, and Sarah Osborne  recently published a Law360 “Expert Analysis” article on the three most important bid protest decisions of 2018: Dell Federal Systems, L.P. v. United States, 906 F.3d 982 (Fed. Cir. 2018); PDS Consultants, Inc. v. United States, 907 F.3d 1345 (Fed. Cir. 2018); and Oracle America, Inc., B-416061, 2018 CPD ¶ 180 (Comp. Gen. May 31, 2018). The article—which is available on the Law360 website—provides an overview of these three cases, and provides insights on how they will shape the bid protest landscape going forward.

If you have any questions about the topics discussed in the article, please feel free to contact Aron Beezley, Patrick Quigley, or Sarah Osborne.