HOW A LEGAL CENTER WILL HELP ELIMINATE ‘BARRIERS’ TO CONTRACTING
WITH SMALL BUSINESSES
Small business watchdogs who act as ‘qui-tam relators’ in uncovering and drawing attention to
abusive procurement practices, including ‘size misrepresentation,’ ‘unfair justification’ and the
‘illegality of some government regulations’ and are retaliated for their efforts deserve justice and legal
Small businesses not only lack financial resources, but legal representation to protect their statutory
rights. As a result, they have been abused and retaliated against in direct violation of Section 3730 of
the False Claims Act which states:
The documents on the links below describe the retaliation reported to the Inspector Generals at the
Department of Defense, the Army and the Air Force:
OIG Complain.- http://bit.ly/Retaliation_Complains
Press Release.- http://bit.ly/aBX8jn
Out of the Box Solutions
The Umbrella Initiative was conceived by the FPA procurement think tank “to eliminate barriers to
procurement with small businesses’ and to assist bureaucrats abide by the mandate of P.L. 95-507
which require them to offer “maximum practicable utilization’ or MPU to small and disadvantaged
businesses in government contracting. The mission of the Umbrella Initiative is “to double the number
of small businesses contracting with the government by the year 2020.”
The ‘Legal Center’ proposed by the Umbrella Initiative, will provide needed legal support to advocacy
efforts to eliminate ‘barriers’ to contracting and make sure the statutory rights of small businesses are
Referred to as the ‘worst procurement practice’ facing the small business reservation, this barrier has
survived four (4) separate directives from the Office of Federal Procurement Policy (OFPP) aimed at
eliminating it. Unfair justifications restrict completion, allow for unfair preferential treatment to be
offered to large businesses or suppliers and it waste taxpayers dollars.
Its elimination could easily be accomplished by holding end-users (those who generate procurement
requests) accountable for disciplinary action for attempting to mislead the Contracting Office through
their requisitions, including their justifications and/or recommendations for awards.
One of the key elements of the SBA Size Standards, ‘size protests,’ is the sole vehicle through which
size misrepresentation, fronts and fraud can be uncovered. Its current process, however, has never
delivered justice and it has discouraged small businesses from participating in government
contracting. By these simple changes, justice will not only become a reality, but one of the two
biggest challenges (large businesses taking small business contracts) facing SBA will be completely
a) Establishing a ‘Legal Center’ with the participation of Law Schools and attorneys under the
guidance of the American Bar Association as the Umbrella Initiative has proposed.
b) Small businesses which challenge the size or the status of a ‘large business’ through a size
protest must now be treated as ‘qui-tam relators’ for the purpose of bringing up a ‘False Claims
Act Case’ against said large business.
c) The ‘public disclosure bar’ requirements currently limiting those who can become ‘qui-tam
relators’ will not apply to small businesses filing size protests.
d) ‘Size protests’ would now be reviewed by one of the participating Legal Center Law Schools to
determine if a False Claim Act case should be pursued.
e) Recommendations from the Legal Center will be returned to SBA and/or referred to the
Department of Justice (DoJ) if the Legal Center uncovers a violation of the False Claim Act.
f) Size misrepresentation will now carry an automatic fine of at least three (3) times the size of
the contract being disputed not to mention any penalty the DoJ might impose on the violator.
g) Fines generated by the new protest system will be devoted to solely to self maintaining the
proposed Legal Center.
The Small Business Act (P.L. 85-536) stipulates that ALL government procurement programs are
subject to the set-aside provisions of the Act. This provision requires that 23% of ALL government
contracts must be made through small businesses. Government regulators, for alleged ulterior
motives, have allowed some programs (i.e., foreign procurements and Federal Supply Schedules to
cite a few) to be exempt from the mandate of the Act.
On the one hand, the FPA Think Tank has reported that the Exemptions have diverted $640B worth
of federal contracts away from small businesses over the last decade. On the other, congressional
transparency has demonstrated that federal agencies have never awarded small businesses their
required share of the contracts.
The proposed Legal Center - with support from the American Bar Association and participating
attorneys - will be able to devise legal ways to dismantle this abusive practice which can be
accomplished by legislation, by a regulatory change or by challenging the ‘standing of the regulation
with applicable law.’
Misreporting Contracting Results
Small business advocates have been able to demonstrate that Federal agencies have been taking
credit for small business contracts awarded to large businesses to appear as if they were meeting
their statutory and socio-economic requirements.
This misreporting, according to the SBA Inspector General, has been the ‘second biggest challenge
SBA has been facing for years.’ Advocates have not accepted the excuses that have been offered
claiming that ‘miscoding’ and ‘clerical errors’ have been the cause for Billions in small business
contracts to have been awarded to Fortune 500 companies.
A Legal Center will make sure that legal action and consequences for such errors will become
The FPA Think Tank is seeking support from the government and from foundations and
private industry to establish the proposed Legal Center
This project will help create a ‘Small Business Legal Center’ with the support of the American Bar Association (ABA) to defend the
statutory rights of small and disadvantaged businesses and make sure they will receive ‘maximum practicable utilization (MPU) ‐ by
Government Agencies’ ‐ as provided by P.L. 95‐507. The project will develop the mechanism and the plan to involve Law Schools and
participating government contracting attorneys; help create the funding pool with which to subsidize cases and the outreach
methods with which to support litigation assistance for such cases.