Cybersecurity's Increasing Impact on Prime Contract and Subcontract Awards

April 5, 2019
By Jonathan Williams
Since last year, I have been writing about the increasing impact of cybersecurity on contract awards. DoD has issued guidance on how it will evaluate system security plans, and it has indicated that, along with cost, schedule, and performance, cybersecurity is the "fourth pillar" of its acquisitions. As a result, contractors need to shift their view of cybersecurity compliance as a cost center to a business driver and an increasingly important factor in gaining a competitive advantage.

Fourth Circuit Makes It Harder for Whistleblowers in FCA Cases

March 26, 2019
By Paul W. Mengel III
In a relatively recent decision, the U. S. Court of Appeals for the Fourth Circuit raised the bar a notch for whistleblowers in False Claim Act ("FCA") cases whose allegations lack specificity as to direct evidence of presentment for payment to the government for fraudulent services. Indeed, in her dissenting opinion in U.S. ex rel. David Grant v. United Airlines, Inc., No. 17-2151 (4th Cir. 2018), Judge Keenan opined that this ruling, affirming the dismissal of the claim at the pre-discovery pleading phase of the case, "effectively limits qui tam actions to whistleblowers in ‘white collar' positions with access to financial and other business records."

Misclassifying Employees Can Have Major Consequences

March 21, 2019
By Anthony M. Batt
Today's economy is saturated with new ways to earn money without being subject to a set schedule or traditional employer demands. With so many individuals working part-time jobs with more autonomy than ever, companies are struggling to determine whether to classify those workers as independent contractors or employees. The distinction between those two categories is extremely important and can affect all aspects of your business, including benefits, overtime pay, and workers' compensation.

OFCCP Investigations on the Rise: How Should You Prepare?

March 20, 2019
By Meghan F. Leemon
The number of Office of Federal Contract Compliance Programs (OFCCP) investigations is on the rise, and OFCCP has stated a continued focus on enforcement. OFCCP enforces the contractual promise of equal employment opportunity and affirmative action required of those that do business with the federal government. Between fiscal years 2015–2017, the OFCCP received an average of 648 complaints annually. However, in fiscal year 2018, this number more than doubled, jumping to 1,418 complaints received. And, in the first quarter of fiscal year 2019, 349 complaints were received.

Does SBA's New Recertification Rule Apply to My Contract? Recent OHA Decision Provides Some Clarity

March 15, 2019
By Samuel S. Finnerty
The U.S. Small Business Administration's ("SBA") regulations require a concern to recertify its socio-economic (e.g., SDVO SBC, HUBZone, WOSB/EDWOSB) and/or small business size status (1) within 30 days of an approved contract novation; (2) within 30 days of a transaction becoming final in the case of a merger, sale, or acquisition, where contract novation is not required; and (3) no more than 120 days prior to the end of the fifth year of a contract exceeding five years in duration (including options) and no more than 120 days prior to exercising any option thereafter. See 13 CFR §§ 121.404(g), 125.18(e)(1), 126.601(h)(1), and 127.503(h)(1). While these timelines are clear, the effect of recertification is subject to different interpretations.
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