Subcontract Language Controls, Even When It May Not Be Fair

February 5, 2019
By Matthew E. Feinberg
The language you choose to put in your subcontract matters, even if you do not understand it or applying that language might end in an unfair result. The Ninth Circuit Court of Appeals drove this point home recently in Aspic Engineering and Construction Company v. ECC Centcom Constructors, LLC.

In the Weeds: Testing Federal Contractor Employees for Marijuana Use

January 31, 2019
By Sarah L. Nash
Consider the following scenario: Janie is employed as a help desk clerk to perform work on a federal government contract and is a model employee. She has a perfect attendance record, performs her job responsibilities with enthusiasm, and is always a team player. Pursuant to company policy, one day Janie is subjected to a random drug test. The results show she tested positive for THC, consistent with the use of marijuana. What options does her employer have?

The Contracting Officer Denied My Claim: Is It Time to Appeal?

January 30, 2019
By Michelle E. Litteken
The Contract Disputes Act ("CDA") was intended to provide a straightforward process for contractors to resolve disputes that occur under a government contract. In short, a contractor may initiate a dispute by submitting a claim to the contracting officer. The contracting officer then issues a final decision, and if the contractor disagrees, it may appeal to a board of contract appeals within 90 days or to the U.S. Court of Federal Claims ("COFC") within one year. Although this path seems clear, questions arise when the process is put into practice. One common question is whether the contracting officer's decision is sufficient to trigger the deadline for the contractor to appeal if the decision is lacking some of the usual formalities. The Civilian Board of Contract Appeals ("CBCA") recently issued a decision that answered that question.

Not So Fast: Practical Considerations Before Novating Your GSA Schedule Contract

January 28, 2019
By Kathryn V. Flood
The acquisition market for federal contractors is booming. Acquisition can provide a buyer the opportunity to target its growth strategically by acquiring the seller's past performance and experience, in addition to gaining the seller's personnel and resources. Of course, part of what makes a seller attractive is the contracts found in its portfolio. While the government does not officially condone the "buying and selling" of federal contracts, a contract may be novated after an acquisition if the buyer has acquired all of the seller's assets or has acquired the entire portion of the seller's assets involved in performing the contract. Novations are necessary after acquisitions where the seller (or acquired assets or division of the seller) will be merged into the buyer and not be held as a separate subsidiary, so the seller's contracts implicated by the acquisition can continue to be performed and administered under the buyer's name.

Using a Joint Venture for Supply Procurements

January 25, 2019
By Jon Williams
Joint ventures have been popular arrangements for chasing government contracts, particularly since the start of SBA's All Small Mentor-Protégé program in 2016. The "ASMPP" allows any small business to enter into an SBA-approved mentor-protégé relationship with a large business. Once a mentor-protégé relationship is approved, the small business and large business can form a joint venture to pursue small business set-asides. This marriage of a small and large business to pursue small business contracts can provide a real competitive edge in competitions for set-aside work, which is a big reason we continue to see a lot of activity with joint ventures and mentor-protégé relationships more than two years after the ASMPP opened its doors.
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