Facing Costly Litigation? An Offer of Judgment May Save You Money in the Long Run

January 25, 2019
By Matthew E. Feinberg
"[I]n this world, nothing can be said to be certain, except death and taxes." This oft-cited quote attributed to Benjamin Franklin may be timeless, but it fails to tell the whole story in the modern world—at least for businesses facing unwelcome litigation. As companies conduct more and more of their business digitally, the cost of defending a lawsuit is increasing, due in large part to the impact of electronic discovery obligations. Electronic discovery, or e-discovery, generally involves the identification, collection, and production of all electronically stored information (such as e-mails, document drafts, spreadsheets, electronic archives, instant messages, and the like) that may be even remotely relevant to a dispute. For many companies, this means they are paying lawyers to review and produce hundreds upon hundreds of thousands of documents, substantially increasing the costs and attorneys' fees incurred for even minor suits.
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A Five-Year Measuring Period for Economic Dependence Affiliation

January 22, 2019
By Peter B. Ford
Earlier this month, we wrote about the internal SBA Information Notice (Information Notice), which clarifies that the changes made by the Small Business Runway Extension Act (Runway Extension Act) are not effective immediately. The Runway Extension Act requires that receipts-based size standards be based on annual average gross receipts over five years. SBA's regulations currently require a three-year lookback for size standards based on annual receipts. And, according to the Information Notice, until SBA revises its regulations through the rulemaking process, businesses must continue to report their receipts based on a three-year average.
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GAO Sustains Protest Alleging Misrepresentation in Proposal Regarding Availability of Incumbent Staff

January 18, 2019
By Patrick T. Rothwell
It is generally difficult to win a bid protest by arguing that the awardee proposed personnel that it did not have a reasonable expectation would be available for performance. Such allegations are normally difficult to prove, particularly at the outset of a protest, because the protestor is unlikely to know which personnel the awardee proposed. As a result, these protest grounds have a high risk of being dismissed as speculative. Winning such a protest is, however, possible.
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Teaming Agreements: Are They Necessary or Not Worth the Effort?

January 10, 2019
By Antonio R. Franco
Government contractors enter into teaming agreements to secure contracts with partners that will help them win and perform the work. It surprises many, however, that certain terms in a teaming agreement may not be enforceable, particularly the clauses providing for the award of a subcontract. This has led contractors to ask, "What is the point of a teaming agreement?" There are many advantages to teaming agreements, or they would not be so prevalent in the government contracting industry. Although those advantages cannot be understated, contractors need to know the limits of teaming agreements. Depending on whether the contractor is the anticipated prime or subcontractor, those limitations need to be carefully considered.
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SBA Information Notice Provides Guidance on SBA's Interpretation of the Small Business Runway Extension Act of 2018

January 4, 2019
By Jacqueline K. Unger
We recently wrote about the Small Business Runway Extension Act (Runway Extension Act), which President Trump signed into law on December 17, 2018. Under the Runway Extension Act, for industries with receipts-based size standards, the size of a firm is to be measured based on its average annual gross receipts over the previous five years (extended from the previously used three-year period). Missing from the Runway Extension Act is any explicit directive as to when the new five-year calculation takes effect, leaving open the question of whether agencies will interpret the law as effective immediately or only upon the issuance of revised regulations. This has led to significant confusion among contractors as to whether a firm's size status could immediately be impacted by the new law, i.e., whether a firm should report its size today based on average annual receipts over the past five years instead of three years.
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