BLOG: Liquidated Damages Clauses: Important Considerations for Business Owners

December 16, 2019
When drafting or negotiating any contract, businesses should give careful consideration to avenues of recovery in the event of a breach by the other party. At times, this determination is straight-forward, such as where a party fails to pay amounts owed. But the analysis can become complicated in situations where damages aren't readily quantifiable, such as where a trade secret is misappropriated or a former employee solicits a company client. To simplify such issues, businesses include liquidated damages provisions in their agreements. The clauses provide for the payment of a stipulated amount of money if the agreement is breached. While commonplace, legal enforceability of such provisions is often overlooked by many business owners. Depending on the nature of the agreement, a liquidated damages clause may be worth considering, but is not always appropriate. Due to the many complexities involved, legal counsel is recommended to provide guidance on these issues.
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BLOG: SBA to Increase Enforcement in 2020 on Set-Asides and Subcontracting

December 13, 2019
One of the most overlooked compliance requirements for set-aside contracts are the limitations on subcontracting. Don't take my word for it—GAO has noted in several reports that contracting officers generally do not monitor or enforce the requirement that the small business prime contractor must self-perform a certain percentage of the contract. The limitations on subcontracting requirements are critical to the efficacy of the small business programs. Indeed, the goals of the programs are not served if small businesses do not perform contracts reserved explicitly for them. With new SBA rules set to take effect on December 30th, we expect enforcement to be a more significant focus in 2020. As a result, government contractors large and small need to make a New Year's resolution to adjust or implement compliance strategies to ensure they understand and satisfy the limitations on subcontracting for set-aside projects.
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BLOG: Performance Anxiety: Five Questions from Government Contractors on Past Performance

December 13, 2019
A government contractor's past performance can spell the difference between proposal rejection and contract award, and agencies are given broad discretion in how they evaluate past performance. It is critical that companies working with the federal government understand not only what steps they should take to utilize and cultivate positive past performance, but also the steps they should take to defend it. We recently gave a webinar on these topics and received several follow-up questions. Below we address the top five listener questions.
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BLOG: OFCCP Releases Technical Assistance Guide for Construction Contractors

December 4, 2019
In keeping with its commitment to offer more technical guidance for government contractors across all industries, the Office of Federal Contract Compliance Programs (OFCCP) recently published its Technical Assistance Guide (the Guide) for construction contractors. The OFCCP released the Guide as a self-assessment tool to help contractors review the equal employment opportunity practices they have in place. Using this tool, and fixing issues it might reveal, may help construction contractors avoid potential investigation and interruption to their business operations. For a full copy of the Guide, please visit OFCCP's website here.
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BLOG: No More "Consent to Subcontract" for 8(a) Firms

December 3, 2019
Firms that participate in the U.S. Small Business Administration ("SBA") 8(a) program operate in a highly regulated environment. For years, 8(a) firms were required to seek approval, or "consent to subcontract," from contracting officers and SBA to subcontract work on an 8(a) contract. In September, with little fanfare, the Federal Acquisition Regulatory Council removed the consent-to-subcontract requirement from two Federal Acquisition Regulation ("FAR") clauses (FAR 52.219-12 and 52.219-17), which are supposed to be incorporated in all 8(a) contracts. According to the Council, this was done after SBA removed the rarely enforced requirement from its regulations. The final regulations took effect in October. The removal of the consent-to-subcontract requirement is welcome news for 8(a) firms, who faced exposure to adverse contractual remedies if accused of violating the requirement.
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