Piliero Mazza & Pargament, PLLC Vol. 6, Issue 10, November/December 2004
Addressing Tribal and Alaska Native Corporation Legal and Business Issues
The articles shown here are excerpts. If you would like to subscribe to the Tribal Advocate, please contact Susan Brock at (202) 857-1000 or at
A R T I C L E S
Temporary Nonimmigrant Visas
Some companies often seek to address their hiring needs by recruiting foreign nationals to fill long-vacant openings in key positions. The United States Citizenship and Immigration Services offers two separate visa programs under the heading of "temporary non-immigrant workers," to allow businesses to hire foreign nationals to augment America’s work force. The term "temporary" is a misnomer as such foreigners are generally permitted to work anywhere from three to seven years, with the option to pursue citizenship independently.
The broader of the two visa programs is the H visa. It is divided into several categories, the largest being the H-1B. This category is reserved for individuals who will be working in a specialty occupation, defined as a job that requires a bachelor’s degree, extensive on-the-job experience, or both. This visa is issued for three years, but can be extended, in most cases, for three additional years. If an H-1B visa holder is applying to become a lawful permanent resident, their H-1B status can be extended for a seventh year. The downside of the H-1B visa is its popularity; the cap of 60,000 visas per fiscal year has already been met for fiscal year 2005. However, employers should be able to begin filing in April 2005 for visas issued after October 2005.
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The Importance of Being WIRED – Maintaining Your Company’s CCR Registration
Over the past year, tribal companies that do business with the federal government may have noticed that their contracts were amended to require registration in the Central Contractor Registration (CCR) database. Many tribal companies are already required to register in CCR in order to complete the process for 8(a) certification. However, not all government contractors have realized that maintaining updated information in the CCR database has become more important than ever.
Although there are some exceptions to the registration requirement (e.g., small purchases, certain classified contracts), government contractors should view CCR as their passport to procurement. Initial registration in the CCR database means that the contractor has inputted all mandatory information into its profile, including the Data Universal Numbering System (DUNS) number, or the DUNS+4 number if the contractor has specified alternative Electronic Funds Transfer (EFT) accounts. Tribes that register tribally-chartered corporations and "section 17" corporations on CCR should not list a state of incorporation, but should indicate their company’s corporate form as "other."
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The Tribal Advocate Speaks with Joe Diamond, Director, Air Force OSDBU
The Tribal Advocate recently had the pleasure of speaking with Joseph G. Diamond, Director of the U.S. Air Force’s Office of Small and Disadvantaged Business Utilization at the Pentagon concerning the Air Force’s Small Business Native American Initiative.
TA: Can you tell us how the Air Force’s Small Business Native American Initiative came into being?
Mr. Diamond: In 1997, we recognized that high unemployment on many of the reservations limited Native Americans’ opportunities to participate in government contracting. My predecessor, Tony DeLuca, established the Native American initiative in two states: Montana and Wyoming. After the first year, about $122 million was attributed to Native American firms on contract with the Air Force. When I came on board, we looked for ways to expand the initiative. After analyzing the capabilities, we expanded it to include five additional states - Washington, California, Florida, Oklahoma and Texas. We focused our outreach events in those specific areas and, in time, added an Action Office, with Dr. Patricia Luna as Program Manager. She was responsible for establishing an infrastructure with our major Air Command directors of small business to get the word out to Native American small businesses about what they need to know to contract with the government. Over the past years, we have been measuring that performance and are very happy to say that at the end of last year we had over $790 million in prime contract awards to Native American firms. With the infrastructure in place at every Air Force installation and our small business specialists aware of our special emphasis categories, such as women-owned businesses or historically underutilized businesses, the Native American initiative is a continuing effort to search out and focus attention on prime contract awards to Native American firms.
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Government Investigations and Your Business
Unfortunately, even the most ethical and professional corporations must now consider investigations an inevitable part of working in the field. Investigations can be triggered by allegations of overzealous competitors or disgruntled former employees, misbehavior of a subcontractor or joint venturer, undetected misconduct, or even simple mistakes. Regardless of the cause, an investigation can have serious consequences for contractors, even if it concludes without finding any wrongdoing. At the very least, an investigation will be costly to the company in terms of time and efforts lost when executive and managerial personnel must devote their attention to the company’s response. The cost of an investigation can unseat key leaders—criminal wrongdoing by a corporation can be imputed to corporate officers. Contractors can mitigate potential consequences arising from investigations by effectively planning for and responding to investigations. To do so, companies must first understand the dimensions of government investigations.
The first things to consider are the laws and regulations that apply to your business. In addition to garden-variety corporate law, government contractors are subject to rules concerning false claims, kickbacks, procurement integrity, and labor requirements. While some apply throughout the government contracting world, the characteristics of your business, particularly whether it is a service contractor, manufacturer or construction firm, may call for extra attention to certain laws. Moreover, your practice area may also have unique regulations.
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Directed Subcontracting: An Option to Meet the Performance of Work Requirements
The Small Business Administration’s (SBA) performance of work requirements for small business and 8(a) set-asides often make it difficult for small businesses to pursue many contracts. On some requirements, small businesses do not have the capabilities to perform the requisite percentage of work or the procuring agency wishes to work with an experienced large business. These conditions often make procuring agencies reluctant to set aside contracts for small businesses. Small businesses should know that they can satisfy the performance of work requirements much more easily if the procuring agency directs the firm to use a specific subcontractor.
The use of a "directed subcontractor" is recognized by the SBA as a way of relieving small businesses from the performance of work requirements that apply to small business set-asides. Under the SBA’s regulations, a small business must perform a specified percentage of work with its own employees. However, the SBA has created an exemption that allows the government to direct a small business to use a specific source for its services without running afoul of the performance of work requirements. Whenever a small business is directed to use a subcontractor, the cost incurred in using the subcontractor should be counted as material cost, not subcontracting cost, allowing the small business to meet the performance of work requirements without having to take into account the subcontractor’s labor cost. Because the performance of work requirements are considered contract administrative matters, the procuring agency, not the SBA, is responsible for its enforcement.
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