PilieroMazza PLLC. RSS Feedhttps://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us15 Feb 2019firmwisehttp://blogs.law.harvard.edu/tech/rssWeekly Report for February 15, 2019https://www.pilieromazza.com/7A2372/assets/files/News/Weekly Report for February 15 2019.pdf15 Feb 2019Weekly Update Newsletter<h3><u><em>GOVERNMENT CONTRACTING</em></u></h3> <strong>The General Services Administration (GSA) <a href="https://www.energy.gov/management/downloads/pf-2019-14-system-award-management-non-federal-entity-registration-process" target="_blank">implemented</a> a new process in SAM that allows non-federal entity registrants to submit common federal government-wide Representations and Certifications for financial assistance. </strong> The procurement Representations and Certifications have not changed. Non-federal entities creating new SAM registrations and existing non-federal entities completing their annual SAM registration renewals will be required to review and certify their financial assistance Certifications and Representations before their registration can be activated. Registration in SAM is required prior to receipt of federal awards and must be updated annually by non-federal entities, therefore federal agencies will use the SAM registration information to verify non-federal entity compliance with application and award requirements. To view instructions on how to submit Representations and Certifications in SAM, please see the <a href="https://www.sam.gov/SAM/SAM_Guide/SAM_Federal_User_Guide/SAM_Fed_User_Guide.html#_Toc4.7.3" target="_blank">user guide</a>.<br /> <br /> <strong>The Department of Justice <a href="https://www.justice.gov/opa/pr/united-states-files-false-claims-act-suit-against-mission-support-alliance-llc-several" target="_blank">announced</a> that the U.S. filed suit against Mission Support Alliance LLC (MSA), Lockheed Martin Corporation (LMC), Lockheed Martin Services Inc. (LMSI), and Jorge Francisco Armijo for alleged false claims and kickbacks in connection with a multi-billion dollar contract with the Department of Energy (DOE)</strong> to support the environmental cleanup at the Hanford Site near Richland, Washington. MSA is a Delaware Limited Liability Corporation that, during the time alleged in the lawsuit, was owned by Lockheed Martin Integrated Technology LLC, Jacobs Engineering Group Inc., and Centerra Group (formerly G4S Government Solutions, and, prior to that, Wackenhut Services Inc.). Both Lockheed Martin Integrated Technology and LMSI were wholly-owned subsidiaries of LMC. Mr. Armijo is a Vice President of LMC and also served as a President of MSA during the time period in question. The allegations in the complaint relate to the management and technology solution services that MSA agreed to provide at Hanford. In January 2010, without competition, MSA awarded its affiliate, LMSI, a $232 million subcontract to perform that work from Jan. 1, 2010 through June 2016. The U.S.&rsquo;s complaint alleges that the defendants knowingly made or caused false statements to the DOE regarding the amount of profit included in the billing rates for LMSI under the subcontract it was awarded by its affiliate, MSA. The complaint also alleges that the defendants&rsquo; claims for these inflated rates violated the False Claims Act. In addition, the complaint alleges that LMC made payments of more than $1 million to Armijo and other MSA executives in order to obtain improper favorable treatment from MSA with respect to the award of the LMSI subcontract at the inflated rates. The complaint further alleges that these payments violated the Anti-Kickback Act.<br /> <br /> <strong>The Department of Justice <a href="https://www.justice.gov/opa/pr/three-individuals-sentenced-prison-their-roles-bribery-schemes-involving-va-program-disabled" target="_blank">reported</a> that two owners and an employee of for-profit, non-accredited schools were sentenced for bribing a public official at the Department of Veterans Affairs (VA)</strong> in exchange for the public official&rsquo;s facilitation of over $2 million in payments that were supposed to be dedicated to providing vocational training for military veterans with service-connected disabilities. Albert Poawui, of Laurel, Maryland, was the owner of Atius Technology Institute (&ldquo;Atius&rdquo;), a school purporting to specialize in information technology courses. Sombo Kanneh, of McLean, Virginia, was Mr. Poawui&rsquo;s employee at Atius. Michelle Stevens, of Waldorf, Maryland, was the owner of Eelon Training Academy, a school purporting to specialize in digital media courses. James King, the VA official who all three defendants bribed, has pleaded guilty to bribery, wire fraud, and falsification of documents, and will be sentenced on February 15. According to admissions made in connection with Mr. Poawui and Mr. Kanneh&rsquo;s pleas, in or about August 2015, Mr. Poawui and Mr. King agreed that Mr. Poawui would pay Mr. King a seven percent cash kickback of all payments made by the VA to Atius. In exchange, King steered VR&amp;E program veterans to Atius regardless of the veterans&rsquo; educational needs or interests and notwithstanding their repeated complaints about the poor quality of education at Atius.<br /> <br /> <h3><u><em>LABOR AND EMPLOYMENT</em></u></h3> <strong>The Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking proposing a revision to its federal sector complaint processing regulations</strong> in order to bring them into compliance with a federal circuit court decision concerning whether and when a complainant may file a civil action after having previously filed an administrative appeal or request for reconsideration with the EEOC. The proposed rule would clarify that an appeal to the EEOC is optional and that agency exhaustion can occur when an agency either takes final action on a complaint or fails to take final action on a complaint within 180 days of the complaint being filed. Since an EEOC appeal is options, complainants can file civil actions within 90 days of the receipt of an agency final action. Comments to the proposed rule are due April 15, 2019. <a href="https://www.govinfo.gov/content/pkg/FR-2019-02-14/pdf/2019-01976.pdf" target="_blank">84 Fed. Reg. 31, 4015</a>.<br /> <br /> <strong>The Department of Labor </strong><a href="https://www.dol.gov/newsroom/releases/ofccp/ofccp20190213" target="_blank"><strong>announced</strong></a><strong> the release of a new policy directive to establish a voluntary compliance program for high-performing federal contractors. </strong>The Voluntary Enterprise-wide Review Program (<a href="https://www.dol.gov/ofccp/regs/compliance/directives/dir2019_04.html" target="_blank">VERP</a>) provides contractors with an alternative to the Office of Federal Contract Compliance Programs&rsquo; (OFCCP) establishment-based compliance evaluations with a focus on recognizing contractors that demonstrate comprehensive corporate-wide compliance and model diversity and inclusion programs. In November 2018, OFCCP issued a separate directive establishing early resolution procedures to allow OFCCP and contractors with multiple establishments to cooperatively resolve compliance reviews while achieving corporate-wide compliance with OFCCP's requirements. OFCCP expects to begin accepting VERP applications in the fall.<br /> <br /> <strong>According to Law360, the Department of Justice (DOJ) endorsed a relatively long time limit for whistleblowers to launch False Claims Act (FCA) suits, telling the U.S. Supreme Court that FCA cases not joined by the government do not need to start sooner.</strong> In an amicus brief, the DOJ sided with a defense industry whistleblower in a dispute over the FCA&rsquo;s statute of limitations. According to Law360, the DOJ&rsquo;s amicus brief argues there is no clear sign that the statute of limitations is shorter for whistleblowers, unlike other FCA provisions that expressly treat whistleblowers differently. In the case, a whistleblower manager, Billy Joe Hunt, accused Parsons Corporation and Cochise Consultancy Inc. of defrauding the Department of Defense in connection with a munitions cleanup contract. Mr. Hunt filed suit in late 2013 but had alleged that the fraud ceased in early 2007, placing him outside the FCA&rsquo;s usual six-year statute of limitations. However, the FCA contains an exception for when the government does not learn of the fraud until later, allowing suits to be filed as much as 10 years after wrongdoing occurred. The case presents the question of whether that exception applies to suits in which the DOJ declined to intervene, as happened in Mr. Hunt&rsquo;s case. According to Law360, the DOJ argued there is no reason to think that the intent of the exception&mdash;to punish fraud that is hard to detect&mdash;should not apply to cases that whistleblowers handle without government help. <br /> <br /> <strong>Investigations by the Department of Labor's Wage and Hour Division (WHD) have resulted in the </strong><a href="https://www.dol.gov/newsroom/releases/sol/sol20190211" target="_blank"><strong>recovery</strong></a><strong> of $5,579,939 in back wages and benefits owed to 993 employees of nine subcontractors that provided power generator operation support for hurricane recovery efforts in Puerto Rico.</strong> WHD investigators found that the subcontractors violated requirements of the McNamara-O'Hara Service Contract Act (SCA), the Contract Work Hours and Safety Standards Act (CWHSSA), and the Fair Labor Standards Act (FLSA). Louis Berger U.S. Inc. and its parent entity Louis Berger Group Inc.&mdash;both based in Morristown, New Jersey&mdash;have paid $5,030,449 to resolve the SCA and CWHSSA violations while the subcontractors have paid $549,490 for the FLSA violations found by WHD. WHD investigators discovered violations that included failing to pay employees fringe benefits required by the SCA and failing to pay required wages to employees misclassified as independent contractors. Additionally, the practice of paying employees flat rates regardless of the number of hours that they worked resulted in overtime violations when those workers exceeded 40 hours in a week, without being paid overtime. WHD cited recordkeeping violations for employers' failure to maintain a record of the number of hours employees worked. Louis Berger US Inc. and Louis Berger Group Inc. have agreed to implement new procedures to ensure pay practices fully comply with applicable laws, and to ensure the compliance of subcontractors with the SCA, CWHSSA, and the FLSA on federal contracts.<br /> <br /> <h3><u><em>CYBERSECURITY</em></u></h3> <strong>The Government Accountability Office (GAO) released a <a href="https://www.gao.gov/assets/700/696437.pdf" target="_blank">report</a> recommending that Congress consider developing comprehensive Internet privacy legislation to better protect consumers. </strong> The GAO decided to do the study after Facebook disclosed in April 2018 that a Cambridge University researcher may have improperly shared the data of up to 87 million of its users with a political consulting firm, which followed other incidents involving the misuse of consumers&rsquo; personal information from the Internet. The report noted that the U.S. does not have a comprehensive Internet privacy law governing the collection, use, and sale or other disclosure of consumers&rsquo; personal information. The report also examined how the Federal Trade Commission and Federal Communications Commission have overseen consumers&rsquo; Internet privacy and sought stakeholders&rsquo; views on the strengths and limitations of how Internet privacy currently is overseen and how, if at all, this approach could be enhanced.<br /> <br /> <h3><u><em>PILIEROMAZZA BLOGS</em></u></h3> <h4>TINA Traps: Defective Pricing in Competitively Awarded IDIQ Contracts</h4> By Isaias Alba IV<br /> <br /> While there has been extensive coverage of the fact that Truth in Negotiations Act (&quot;TINA&quot;) thresholds for DoD were increased from $750,000 to $2M and certain civilian agencies have adopted the thresholds either via a FAR deviation or on an ad hoc basis, we have seen an increase in clients falling into insidious TINA traps&mdash;task orders on competitively awarded IDIQ contracts that require new labor categories or requirements not contemplated under the initial RFP.<br /> [<a href="https://www.pilieromazza.com/?t=40&amp;an=88783&amp;anc=801&amp;format=xml" target="_blank">Read More</a>]<br /> <h4>Not So Fast: Practical Considerations Before Novating Your GSA Schedule Contract</h4> By Kathryn V. Flood<br /> <br /> 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 &quot;buying and selling&quot; 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.<br /> [<a href="https://www.pilieromazza.com/?t=40&amp;an=87492&amp;anc=801&amp;format=xml" target="_blank">Read More</a>]<br /> <br /> <br />https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10TINA Traps: Defective Pricing in Competitively Awarded IDIQ Contractshttps://www.pilieromazza.com/?t=40&an=88783&format=xml13 Feb 2019Blog<div style="text-align: justify;"><img src="https://www.pilieromazza.com/7A2372/assets/images/Attorneys/2/150x150/Alba.jpg" hspace="5" vspace="5" align="left" alt="" border="0" width="150" height="150" />While there has been extensive coverage of the fact that Truth in Negotiations Act (&ldquo;TINA&rdquo;) thresholds for DoD were increased from $750,000 to $2M and certain civilian agencies have adopted the thresholds either via a FAR deviation or on an <em>ad hoc</em> basis, we have seen an increase in clients falling into insidious TINA traps&mdash;task orders on competitively awarded IDIQ contracts that require new labor categories or requirements not contemplated under the initial RFP.<br /> <br /> Specifically, we have seen instances where the agency awarded clients competitive FFP IDIQ contracts under less-than-stellar or poorly thought out RFPs before realizing that new labor categories or other types of work were required. With these, the government adds the new items through task orders or modifications to the IDIQ contract itself. Many companies do not think twice before providing the government with fully loaded rates and pricing when this occurs. It is an FFP contract after all, and the original award was competed, right? Wrong.<br /> <br /> TINA requires that the government request and that contractors provide cost and pricing data for any new contract or modification to a contract awarded on a non-competitive basis for greater than $750,000 (or $2M for DoD or civilian agencies under a FAR deviation). This means that, even if the underlying IDIQ contract was awarded competitively, if the government adds work to a contract, the CO should ask for cost and pricing data to support the new prices and that there should be a more fulsome negotiation as to the pricing because it was not vetted through competition.<br /> <br /> So, what if the CO fails to request any pricing information? In that case, the language of TINA and its implementing regulations suggest that a contractor may not be required to provide the additional data. Not providing this, though, would put the contractor at risk of a clawback during a DCAA or other audit if it were found that the additional pricing was not fair or reasonable. It may still be possible to make a case that the pricing was fair and reasonable, but if the contractor is unable to say the CO saw the cost buildup and reviewed the information, the contractor cannot stop the government outright. This means the contractor will get dragged into a highly subjective battle where the parties end up arguing over the reasonableness of pricing. And, because the government has already spent time and money on an audit, they will likely be digging for any justification to find an overpayment&mdash;if for no other reason than to justify the cost of the audit. This is obviously not a position businesses want to find themselves in.<br /> <br /> While you may want to take the business risk of not providing information if it is not requested, know that it is just that&mdash;a risk. So go into the situation with eyes wide open.<br /> <br /> <strong><span style="font-size: small;">About the Author: </span></strong><span style="font-size: small;"><em>Cy Alba is a partner and member of the Government Contracts and Small Business Programs groups. He may be reached at </em><a href="mailto:ialba@pilieromazza.com"><em>ialba@pilieromazza.com</em></a></span><em><span style="font-size: small;">.</span></em></div>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10False Claims Act Column 1https://www.pilieromazza.com/?t=40&an=88764&format=xml12 Feb 2019Sub Service<ul> <li><strong>PilieroMazza attorneys have represented government contractors in False Claims Act matters before and involving nearly all federal agencies including:</strong><br /> <ul> <li><span style="font-size: medium;">Department of Defense (DOD)</span></li> <li><span style="font-size: medium;">Department of Homeland Security (DHS)</span></li> <li><span style="font-size: medium;">Department of Justice (DOJ)</span></li> <li><span style="font-size: medium;">Department of Veterans Affairs (VA)</span></li> <li><span style="font-size: medium;">General Services Administration (GSA)</span></li> <li><span style="font-size: medium;">National Aeronautics and Space Administration (NASA)</span></li> <li><span style="font-size: medium;">Small Business Administration (SBA)</span></li> <li><span style="font-size: medium;">Transportation Security Administration (TSA)</span></li> <li><span style="font-size: medium;">Various state agencies<br /> </span></li> </ul> </li> </ul>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Weekly Report for February 8, 2019https://www.pilieromazza.com/7A2372/assets/files/News/Weekly Report for February 8 2019.pdf08 Feb 2019Weekly Update Newsletter<h3><u><em>GOVERNMENT CONTRACTING</em></u></h3> <strong>The Small Business Administration (SBA) <a href="https://www.sba.gov/about-sba/sba-newsroom/press-releases-media-advisories/sba-offer-workshops-native-american-small-businesses" target="_blank">announced</a> a series of workshops geared to help Native American small business communities with technical assistance and business development.</strong> The SBA will participate in the workshops by providing information and access to products and services that are available. The workshops will focus on increased financial literacy and outreach initiatives to enhance the use of the SBA&rsquo;s financing programs, counseling, and business development services. The SBA and other federal agencies, such as the U.S. Department of Agriculture, stand ready to provide long-term business development and job creation strategies throughout Native American communities.<br /> <br /> <strong>President Trump issued an Executive Order to strengthen &ldquo;Buy-American&rdquo; principles in federal financial assistance programs. </strong> The Order requires the heads of executive departments and agencies to encourage federal assistance recipients to use, to the greatest extent practicable, iron, aluminum, steel, cement, and other manufactured products produced in the U.S. in every contract, subcontract, purchase order, or sub-award that is chargeable against such federal financial assistance award. It further requires agency and department heads to report on any tools, techniques, terms, or conditions that could maximize use of U.S.-produced iron, aluminum, steel, cement, and other manufactured products in contracts, subcontracts, purchase orders, and sub-awards. <a href="https://www.govinfo.gov/content/pkg/FR-2019-02-05/pdf/2019-01426.pdf" target="_blank">84 Fed. Reg. 24, 2039</a>.<br /> <br /> <strong>The Veterans Benefits Administration (VBA) is moving to a paperless claims processing environment</strong> from a patchwork system that combines paper records, electronic fax, microfilm, microfiche, files stored on compact discs, DVDs, and flash memory devices. According to Bloomberg Government, the VBA issued a request for information to find companies interested in supporting the transition. The draft performance work statement indicates that VBA may contract with multiple companies and that the scope of work may be extensive. The agency wants contractors capable of applying machine learning and artificial intelligence to the problem, as well as identifying performance deficiencies, establishing performance metrics, and providing organizational training and leadership.<br /> <br /> <strong>Representative Donald Norcross (D-NJ) introduced a bipartisan bill, Fairness for Federal Contractors Act (<a href="https://www.congress.gov/bill/116th-congress/house-bill/824/text" target="_blank">H.R. 824</a>), which would provide back pay </strong>for more than a million federal contractors furloughed or on the job without pay during the 35-day government shutdown. The legislation was co-sponsored by 19 House Democrats and 3 Republicans.&nbsp;<br /> <br /> <strong>According to Law360, the U.S. Army Corps of Engineers (USACE) is launching a pilot program aimed at determining how well different project delivery methods can reduce the amount of money and time spent on government projects.</strong> Interested parties can send the USACE information about possible public-private partnership projects on or before April 2, and the USACE&rsquo;s civil works department will choose up to 10 projects based on specific criteria, including a requirement that construction costs be higher than $50 million. The program is part of the Revolutionize USACE Civil Works initiative, which seeks to get civil works projects done faster, implement different types of financing strategies, and streamline the permitting and review process. <br /> <br /> <strong>The Department of Justice (DOJ) <a href="https://www.justice.gov/usao-sdga/pr/former-army-colonel-wife-sentenced-prison-roles-fort-gordon-fraud-kickback-scheme" target="_blank">reported</a> that a former active-duty U.S. Army colonel and his wife have been sentenced to federal prison and fined more than $200,000 for their roles in steering government contracts to co-conspirators in return for cash.</strong> Anthony Roper pled guilty to procurement integrity fraud and was sentenced to 60 months in prison and fined $200,000. Mr. Roper&rsquo;s wife, Audra Roper, pled guilty to accessory after the fact and was sentenced to 28 days in prison, fined $10,000, and placed on five years of probation. According to evidence presented during guilty pleas and sentencing hearings, Mr. Roper, then in active-duty status at Fort Gordon, accepted bribes from Calvin Devear Lawyer, a retired U.S. Army colonel, to steer Army contracts worth more than $20 million to Mr. Lawyer&rsquo;s company, the CREC group. Based on false representations, the CREC group had been awarded status as a small, disadvantaged business, and the company used that status to gain a competitive advantage in contracting. <br /> <br /> <strong>The DOJ </strong><a href="https://www.justice.gov/usao-co/pr/36-million-settlement-resolves-procurement-fraud-investigation-against-colorado-and" target="_blank"><strong>announced</strong></a><strong> that VMJ Construction, LLC (&ldquo;VMJ&rdquo;); its owner, Michael T. Vigil; Vigil Contracting, Inc. (&ldquo;Vigil Contracting&rdquo;); and Vigil Contracting&rsquo;s Operations Manager, John J. Vigil, have agreed to pay the United States $3.6 million to resolve allegations that they defrauded the Small Business Administration (&ldquo;SBA&rdquo;) 8(a) Business Development Program.</strong> The United States contends that VMJ made false statements to the SBA regarding its eligibility to participate in the 8(a) Program. Specifically, VMJ relied almost exclusively upon Vigil Contracting to bid on and complete the work awarded to VMJ under the 8(a) Program. VMJ used Vigil Contracting&rsquo;s bonding, office space, employees, contractors, software, computers, and vehicles. Vigil Contracting employees and contractors, including John J. Vigil, made the high-level business decisions of VMJ and managed the day-to-day operations of VMJ. Michael T. Vigil did not control VMJ, did not set the long-term policy, nor manage the day-to-day management of the business. By misrepresenting these facts, the United States Army, the United States Navy, and the United States Department of Agriculture awarded VMJ several federal government contracts set aside for 8(a) Program participants. <br /> <br /> <h3><u><em>LABOR AND EMPLOYMENT</em></u></h3> <strong>The U.S. Court of Appeals for the Fifth Circuit <a href="https://law.justia.com/cases/federal/appellate-courts/ca5/18-20251/18-20251-2019-02-06.html" target="_blank">held</a> that Title VII of the Civil Rights Act of 1964 does not apply to transgender workers.</strong> The Fifth Circuit applied a 40-year old precedent that stated federal civil rights law does not apply to gay workers. According to Bloomberg Government, the question of whether Title VII covers LGBT workers and job applicants continues to percolate in the courts, and the U.S. Supreme Court has three petitions asking it to settle the issue. The Supreme Court justices are expected to decide whether to grant the petitions on February 15.<br /> <br /> <strong>The Department of Labor <a href="https://www.dol.gov/newsroom/releases/whd/whd20190206-0" target="_blank">announced</a> the launch of an enhanced electronic version of the &ldquo;Reference Guide to the Fair Labor Standards Act&rdquo; (FLSA).</strong> This new <a href="https://www.dol.gov/whd/regs/compliance/Digital_Reference_Guide_FLSA.pdf" target="_blank">online version</a> of one of the Wage and Hour Division&rsquo;s (WHD) most popular publications aims to assist American employers and workers with a simple, easy-to-follow resource that provides basic WHD information, as well as links to other resources. WHD established this electronic guide as part of its ongoing efforts to modernize compliance assistance materials for employers and workers, and to provide easily accessible, plain-language information that will guide them to compliance. <br /> <br /> <strong>According to Law360, the Equal Employment Opportunity Commission (EEOC) said that it is giving employers two more months to file their EEO-1 workforce data surveys after the agency shut down due to the federal government appropriations lapse.</strong> The EEOC said employers will need to file their forms covering the year 2018 by May 31, rather than the usual March 31 due date. The agency <a href="https://www.eeoc.gov/employers/eeo1survey/whomustfile.cfm" target="_blank">requires</a> private employers with 100 or more workers and federal contractors or first-tier subcontractors to file EEO-1 forms breaking down the employers&rsquo; workforces by race, ethnicity, gender, and job title. That data is <a href="https://www.eeoc.gov/employers/eeo1survey/faq.cfm" target="_blank">used</a> &ldquo;to support civil rights enforcement and to analyze employment patterns, such as the representation of women and minorities within companies, industries or regions.&rdquo;<br /> <br /> <h3><u><em>PILIEROMAZZA BLOGS</em></u></h3> <h4>Subcontract Language Controls, Even When It May Not Be Fair</h4> By Matthew E. Feinberg<br /> <br /> 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.<br /> [<a href="https://www.pilieromazza.com/?t=40&amp;an=88649&amp;anc=801&amp;format=xml" target="_blank">Read More</a>]<br /> <h4>Using a Joint Venture for Supply Procurements</h4> By Jon Williams<br /> <br /> Joint ventures have been popular arrangements for chasing government contracts, particularly since the start of SBA's All Small Mentor-Prot&eacute;g&eacute; program in 2016. The &quot;ASMPP&quot; allows any small business to enter into an SBA-approved mentor-prot&eacute;g&eacute; relationship with a large business. Once a mentor-prot&eacute;g&eacute; 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-prot&eacute;g&eacute; relationships more than two years after the ASMPP opened its doors.<br /> [<a href="https://www.pilieromazza.com/?t=40&amp;an=87482&amp;anc=801&amp;format=xml" target="_blank">Read More</a>]<br /> <br />https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Michelle E. Litteken06 Feb 2019Featured Attorneyhttps://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10PilieroMazza will be at TRIAD and the 8(a) Small Business Conferencehttps://www.pilieromazza.com/?t=40&an=88663&format=xml06 Feb 2019News<img src="https://www.pilieromazza.com/7A2372/assets/images/Event Photos/8a Conference Header.JPG" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="996" height="119" /><br /> <div style="text-align: center;"><br /> <img src="https://www.pilieromazza.com/7A2372/assets/images/Event Photos/TRIAD Conf Header.JPG" hspace="10" vspace="10" align="left" alt="" border="0" width="328" height="200" /></div> <h2 style="text-align: center;"><span style="color: rgb(196, 31, 46);"><br /> February 11-13, 2019 <br /> Nashville, TN<br /> <br /> Gaylord Opryland Hotel and Convention Center</span></h2> <div style="text-align: center;">&nbsp;</div> <p style="text-align: center;">Visit PilieroMazza at the TRIAD and 8(a) Association's Annual Small Business Conferences next week.&nbsp;<br /> <br /> <strong><span style="color: rgb(9, 54, 122);">In the Exhibit Hall at Booth 503</span></strong><span style="color: rgb(9, 54, 122);"><br /> </span><br /> TRIAD Breakout Session - Small Business Fables<br /> Monday at 3:00 with Megan Connor&nbsp;<br /> <br /> 8(a) Breakout Session - Strategies for Growth:&nbsp;Acquiring a Small Business with Federal Contract Assets&nbsp;<br /> Wednesday at 1:45 with Cy Alba</p> <div style="text-align: center;"><span style="font-size: large;">&nbsp;</span></div> <div style="text-align: center;">&nbsp;</div>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Subcontract Language Controls, Even When It May Not Be Fairhttps://www.pilieromazza.com/?t=40&an=88649&format=xml05 Feb 2019Blog<div style="text-align: justify;"><img src="https://www.pilieromazza.com/7A2372/assets/images/Attorneys/2/150x150/Feinberg.jpg" hspace="5" vspace="5" align="left" alt="" border="0" width="150" height="150" />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 <u>Aspic Engineering and Construction Company v. ECC Centcom Constructors, LLC</u>.<br /> <br /> In <u>Aspic</u>, a contractor, ECC, was awarded two prime contracts by the U.S. Army Corps of Engineers for the construction of various buildings in Afghanistan. Aspic, an Afghani company alleged to be unfamiliar with U.S. federal contracting law, performed some of the work on the prime contracts pursuant to two subcontracts with ECC. The subcontracts flowed down certain prime contract requirements, including FAR 49.2 through 49.6, which govern terminations for convenience, and dictated that all provisions that applied to the prime contractor&rsquo;s relationship with the government applied equally to the subcontractor&rsquo;s relationship with the prime contractor.<br /> <br /> The Corps eventually terminated the ECC prime contracts for convenience, and, shortly thereafter, ECC likewise terminated Aspic&rsquo;s subcontracts for convenience. Aspic submitted a termination for convenience settlement proposal, attempting to recoup the costs it incurred prior to the termination. FAR 49.108-3 requires a contractor seeking settlement after a termination for convenience to provide &ldquo;accounting data and other information sufficient for adequate review by the Government . . . .&rdquo; However, Aspic&rsquo;s submission to ECC was inadequate, and it was unable to provide the necessary information.<br /> <br /> Ultimately, ECC and Aspic ended up in arbitration over the termination for convenience damages. After a hearing, the arbitrator determined that the subcontractors were drafted with substantial favoritism to the prime contractor, and &ldquo;in view of the fact that the normal business practices and customs of subcontractors in Afghanistan were more &lsquo;primitive&rsquo; than those of U.S. subcontractors experienced with U.S. Government work, it was not reasonable to expect that Afghanistan subcontractors would be able to conform to the strict and detailed requirements of general contractors on U.S. federal projects.&rdquo; In other words, the arbitrator concluded that, despite the express terms of the subcontract, it would not be fair to hold Aspic to those terms because it was unfamiliar with U.S. federal contracting principles. And, he awarded Aspic over $1 million in termination for convenience damages.<br /> <br /> ECC challenged the award in the U.S. District Court for the Northern District of California, which overturned the arbitrator&rsquo;s decision. On further appeal, the Ninth Circuit agreed that the arbitrator&rsquo;s award could not stand. The Court held: &ldquo;To allow contractors and subcontractors, foreign or domestic, to evade the FAR provisions because a subcontractor was too unsophisticated or inexperienced to fully understand them would potentially cripple the government&rsquo;s ability to contract with private entities, and would violate controlling federal law.&rdquo;<br /> <br /> A small mistake or misunderstanding can have big consequences in the government contracting space. <u>Aspic</u> serves as a reminder to prime contractors and subcontractors alike that a clear understanding of the specific terms of a contract&mdash;including all flow-down provisions&mdash;is critical in case the prime-sub relationship goes south before, during, or after performance.<br /> <br /> <strong><span style="font-size: small;">About the Author:</span></strong><span style="font-size: small;"> </span><em><span style="font-size: small;">Matt Feinberg is an associate with PilieroMazza who practices in the areas of litigation, labor and employment, and business and corporate law. He may be reached at <a href="mailto:mfeinberg@pilieromazza.com">mfeinberg@pilieromazza.com</a>.</span></em></div>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10PilieroMazza Submits Comments in Reponse to Proposed Rules on Small Business Subcontractinghttps://www.pilieromazza.com/?t=40&an=88628&format=xml04 Feb 2019NewsOn February 4, 2019, PilieroMazza submitted comments on RIN 3245-AG86, Proposed Rule National Defense Authorization Acts of 2016 and 2017, Recovery Improvements for Small Entities After Disaster Act of 2015, and Other Small Business Government Contracting.<br /> <br /> We submitted our comments on the U.S. Small Business Administration&rsquo;sroposed rule on amendments to its regulations to implement several provisions of the National Defense Authorization Acts of 2016 and 2018 and the Recovery Improvements for Small Entities After Disaster Act of 2015 (&ldquo;RISE Act&rdquo;), as well as other clarifying amendments. 83 Fed. Reg. 62516. Our firm represents small businesses and their teaming and joint venture partners operating across the government contracting spectrum. Although many of SBA&rsquo;s proposed changes are welcome to the small business contracting community, we believe that several of the proposed rules will create confusion and compliance challenges for small business contractors. <a href="https://www.pilieromazza.com/7A2372/assets/files/News/RIN%203245-AG86%E2%80%94Proposed%20Rule%20on%20Small%20Business%20Government%20Contracting.pdf" target="_blank">Read our full comments here</a>.<br type="_moz" /> <br type="_moz" />https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10PilieroMazza Submits Comments in Reponse to Revision of Limitations on Subcontractinghttps://www.pilieromazza.com/?t=40&an=88629&format=xml04 Feb 2019NewsOn February 4, 2019, PilieroMazza submitted comments on RIN 3245-AG86, Proposed Rule National Defense Authorization Acts of 2016 and 2017, Recovery Improvements for Small Entities After Disaster Act of 2015, and Other Small Business Government Contracting.<br /> <br /> SBA has already issued a thorough body of regulations dealing with the limitations on subcontracting, and SBA has the authority under the Small Business Act to mandate the level of performance by prime contractors on small business set-aside contracts. Therefore, SBA&rsquo;s regulations represent the appropriate standard for the limitations on subcontracting, and we agree with the FAR Council&rsquo;s efforts to conform the FAR with SBA&rsquo;s rules. However, as discussed in our comments, we believe the proposed FAR clauses require further revisions to ensure they are consistent with the existing SBA regulations. <a href="https://www.pilieromazza.com/7A2372/assets/files/News/Comment_to_RIN_9000-AN35__Revisions_of_Limitations_on_Subcontracting.pdf" target="_blank">Read our full comments here</a>.<br />https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Comments Submitted in Response to RIN 3245-AG86—Proposed Rule on Small Business Government Contractinghttps://www.pilieromazza.com/7A2372/assets/files/News/RIN 3245-AG86—Proposed Rule on Small Business Government Contracting.pdf04 Feb 2019CommentsOn February 4, 2019, PilieroMazza submitted comments on&nbsp;RIN 3245-AG86, Proposed Rule National Defense Authorization Acts of 2016 and 2017, Recovery Improvements for Small Entities After Disaster Act of 2015, and Other Small Business Government Contracting.<br /> <br /> Includes our comments on: <ul> <li>SBA&rsquo;s Proposed Changes About Subcontracting Plans Provide Necessary Clarification</li> <li>SBA&rsquo;s Contracting Preferences for Small Businesses in Disaster Areas Are Welcome</li> <li>SBA&rsquo;s Clarification Regarding the Nonmanufacturer Rule and Information Technology Value Added Resellers Is Beneficial</li> <li>Setting Aside an Order Under a Multiple-Award Set-Aside Contract</li> <li>SBA Should Provide Further Clarifications to Its Proposed Rule on Recertification of Size and Status</li> <li>SBA Should Not Require Mandatory Limitations on Subcontracting Compliance Disclosures</li> <li>Exclusions from the Limitations on Subcontracting Calculation Are Welcome</li> <li>SBA&rsquo;s Proposed Changes to the Ostensible Subcontractor Rule Are Unnecessary and Will Harm Small Businesses</li> <li>SBA Reasonably Proposes to Remove the Kit Assembler Provision</li> <li>The Proposed Clarification About when Size Is Determined Is Helpful</li> <li>Clarification Where One Acceptable Offer Is Received on a Set-Aside</li> <li>The SBA Should Repeal the Presumption That Minority Shareholders Control a Business when No Majority Shareholder Exists</li> </ul>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10