BLOG: GAO Defers to SBA on When Runway Extension Act Applies

August 20, 2019
By Emily J. Rouleau
Last year, Congress passed—and President Trump signed—the Small Business Runway Extension Act (the "Runway Extension Act" or the "Act"), which changed the time period for determining a company's size based on average annual receipts from the previous three years to the previous five years. This summer, the Small Business Administration ("SBA") finally published its proposed rule to amend its regulations and change the period of measurement for receipts-based size calculations from three years to five years. As my colleague Megan Connor noted in her blog, SBA was slow to implement the change imposed by the Runway Extension Act because it believes the Runway Extension Act amended a section of the Small Business Act that does not apply to SBA. Now, the Government Accountability Office ("GAO") has deferred to SBA's interpretation, days before comments to SBA's proposed rule are due. While GAO's decision may signal that offerors may need to continue to calculate their average annual receipts based on the previous three year, this is an open and developing issue, especially until SBA finalizes a rule implementing the Runway Extension Act.

BLOG: SCOTUS Strengthens Protections for Federal Government Contractors Under FOIA

August 9, 2019
By Patrick K. Burns
The Freedom of Information Act ("FOIA" or "the Act") provides private citizens access to information in the possession of government agencies that is not otherwise publically available. Unfortunately, an agency's disclosure can potentially include confidential information of a government contractor, such as proposal content, pricing structures, and other proprietary material. Such disclosures are concerning because publically disclosed information can be used by competitors to the great detriment of the contractor. Luckily for contractors, FOIA's power is not unlimited. Indeed, Congress restricted its scope through a series of exemptions that protect certain information from disclosure that can be of use to contractors when a competitor or private party seeks a company's proprietary information that is in the hands of the government.

BLOG: This Project Is Behind Schedule – What Is a Contractor to Do?

August 6, 2019
By Michelle E. Litteken
Construction projects rarely, if ever, go precisely as planned. One of the most common issues government contractors face is falling behind schedule. A schedule is developed, and then the contractor is confronted with differing site conditions, changes, or a litany of other causes of delay. The contract completion date that seemed easily achievable when performance began may now appear to be impossible to meet. What should a government contractor do to ensure they are compensated and to avoid liquidated damages?

BLOG: Have the Flood Gates Opened?: Cisco Settles First-Of-Its-Kind Cybersecurity False Claims Act Litigation

August 2, 2019
By Matthew E. Feinberg
On July 31, 2019, a False Claims Act matter pending in the United States District Court for the Western District of New York was unsealed, revealing an $8.6 million dollar settlement that may have far-reaching implications on government contractors. The litigation, United States, et al., ex rel. James Glenn v. Cisco Systems, Inc., was initiated in 2011 on behalf of the federal government and a number of state governments, after a Denmark-based employee of a Cisco affiliate was terminated allegedly for reporting a flaw in one of Cisco's video surveillance products. With the rapidly developing role of cybersecurity in federal procurements, government contractors should clearly understand their obligations, representations, and certifications to avoid False Claims Act liability and ensure compliance.

BLOG: Court of Federal Claims Denies Oracle Protest of JEDI Contract: Is This It For Oracle?

July 26, 2019
By Lauren Brier
The Department of Defense ("DoD") first released the Joint Enterprise Defense Infrastructure ("JEDI") cloud contract on July 26, 2018. One main purpose of the JEDI contract, as listed in the DoD's published "Determination and Findings," was to acquire foundational commercial cloud technologies that would "enable war fighters to better execute a mission that is increasingly dependent on the exploitation of information." With this purpose in mind, the DoD made a controversial decision to move forward with a single-award approach to procure its cloud technologies, a critical decision that has since stymied the JEDI procurement. Most recently, the U.S. Court of Federal Claims dismissed a pre-award protest of the DoD's decision to make a single-source award, which has since allowed the JEDI contract to move forward. Microsoft and Amazon are the only two viable offerors that remain capable of receiving the award. The DoD's decision to award to only one of these large vendors could form a trend for agencies to move away from multicloud strategies. It will be important for cloud vendors to keep an eye on whether JEDI succeeds in its base period, as it will likely shape other agencies decisions on whether a single-award approach for future cloud strategies is a trend worth following.
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