PilieroMazza PLLC. RSS Feedhttps://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us14 Aug 2018firmwisehttp://blogs.law.harvard.edu/tech/rssStaying Relevant in a Changing Federal Marketplacehttps://www.pilieromazza.com/?t=40&an=75866&format=xml12 Sep 2018Events<div style="text-align: center;"><img src="https://www.pilieromazza.com/7A2372/assets/images/Event Photos/Globe Headeer.jpg" hspace="8" vspace="8" align="left" alt="" border="0" width="550" height="216" /></div> <h4><span style="color: rgb(9, 54, 122);">PilieroMazza is partnering with NCMA Denver on September 12, 2018 at the Crawford Hotel in Denver for an event that will feature timely and relevant topics in government contracting and contracting management. Attend for half a day or opt for a&nbsp;full day of workshops with industry experts and&nbsp;innovative ideas to increase your competitive edge.</span></h4> <br /> <br /> <hr /> <h3><span style="color: rgb(153, 51, 0);">Morning Session - Small Business Boot Camp</span></h3> <div><strong>Finding Success in the Federal Marketplace: Leveraging Your Status&nbsp;</strong></div> <ul> <li>Using Your Set-Aside Status to the Max</li> <li>Teaming, Joint-Venture, and Subcontracting Basics</li> </ul> <div>&nbsp;</div> <div><strong>Protecting What You Have</strong></div> <ul> <li>Responding To and Filing a Protest</li> <li>Staying in Compliance</li> </ul> <div>&nbsp;</div> <div><strong>Employment Law for Government&nbsp;Contractors: Yes, It&rsquo;s Different &nbsp;</strong></div> <ul> <li>Service Contract Labor Standards</li> <li>Sick Leave</li> <li>Affirmative Action Requirements</li> </ul> <br type="_moz" /> <h3><span style="color: rgb(128, 0, 0);">Afternoon Session - Staying Relevant in a Changing Federal Marketplace</span></h3> <strong>Legislative and Regulatory Policy Update<br /> <em>With John Klein, SBA Associate General Counsel for Procurement Law</em><br /> </strong> <ul> <li>Other Transaction Authority - OTAs</li> <li>Ownership and Control</li> <li>Limitations on Subcontracting</li> <li>Changes to Size Standards</li> </ul> <div>&nbsp;</div> <div><strong>The Mid-Size Challenge</strong></div> <ul> <li>To Grow or Not to Grow?</li> <li>Challenges and Strategies</li> </ul> <div>&nbsp;</div> <div><strong>Latest Trends in the Procurement World </strong></div> <ul> <li>Best in Class</li> <li>Category Management</li> <li>Section 809 Panel</li> <li>Electronic Platforms</li> </ul> <hr /> <h4><span style="color: rgb(128, 0, 0);"><br /> Guest Speakers</span></h4> John Klein, SBA Associate General Counsel for Procurement Law (Confirmed)<br /> <br /> Stay tuned for speaker updates - more to follow!<br /> <br /> <hr /> <h1><span style="background-color: rgb(0, 51, 102);">&nbsp;<a href="https://events.r20.constantcontact.com/register/eventReg?oeidk=a07efjg15dmf8043df6&amp;oseq=&amp;c=&amp;ch=" target="_blank"><span style="color: rgb(177, 143, 80);"> &nbsp;</span></a><span style="color: rgb(177, 143, 80);"><span style="text-transform: uppercase;"><a href="https://events.r20.constantcontact.com/register/eventReg?oeidk=a07efjg15dmf8043df6&amp;oseq=&amp;c=&amp;ch=" target="_blank"><span style="color: rgb(177, 143, 80);">REGISTER HERE</span></a></span><span style="color: rgb(177, 143, 80);"><span style="text-transform: uppercase;">&nbsp;&nbsp;</span></span></span></span></h1> <h3 style="text-align: right;"><span style="color: rgb(128, 0, 0);">Sponsored By</span></h3> <h3><span style="color: rgb(128, 0, 0);">Wednesday, September 12, 2018</span><img src="https://www.pilieromazza.com/7A2372/assets/images/PilieroMazza Logo - no AAL - right colors.jpg" hspace="5" vspace="5" align="right" alt="" border="0" width="301" height="104" style="font-size: 12px;" /></h3> <span style="color: rgb(0, 51, 102);"><strong>Morning Bootcamp: 9:00am - 12:00pm<br /> Cost: $40<br /> <br /> Afternoon Workshops: 1:00pm - 5:00pm<br /> Cost: $40<br /> <br /> Full Day - Both Sessions: $75</strong></span><img src="https://www.pilieromazza.com/7A2372/assets/images/Event Photos/NMCA Denver Logo.jpg" hspace="5" vspace="5" align="right" alt="" border="0" width="327" height="137" /> <br /> Networking Happy Hour: 5:00pm - 7:00pm&nbsp; &nbsp; &nbsp;&nbsp; &nbsp; &nbsp;<br /> Included with registration<br /> <br /> <span style="color: rgb(153, 0, 102);"><strong>Discount Code &quot;NCMAPM20&quot; for NCMA Members &amp; PilieroMazza Clients</strong></span> <h3><span style="color: rgb(128, 0, 0);"><br /> Location<br /> </span></h3> The Crawford Hotel at Union Station&nbsp;&nbsp;<img src="https://www.pilieromazza.com/7A2372/assets/images/Event Photos/Crawford Hotel.JPG" hspace="0" vspace="0" align="right" alt="" border="0" width="401" height="190" /> <br /> 1701 Wynkoop Street<br /> Denver, CO 80202<br /> <br /> 720-460-3700<br /> <br /> <a href="http://www.thecrawfordhotel.com/" target="_blank">www.thecrawfordhotel.com<br /> </a>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Growing Your Business Value with the SBA Mentor-Protégé Programhttps://www.pilieromazza.com/?t=40&an=79057&format=xml23 Aug 2018EventsJoin Megan Connor when she presents &quot;Joint Ventures Under the Mentor-Protege Program&quot; at the Virginia Asian Chamber of Commerce Event on August 23, 2018.<br /> <h3 style="text-align: center;">BRIDGING PARTNERSHIPS LUNCHEON<br /> Growing Your Business Value with the SBA Mentor-Prot&eacute;g&eacute; Program</h3> <strong>When:</strong> <br /> Thursday, August 23, 2018<br /> <br /> <strong>Time:</strong> <br /> 11:30 am to 2 :00 pm<br /> <br /> <strong>Where:</strong>&nbsp;<img src="https://www.pilieromazza.com/7A2372/assets/images/Event Photos/VACC Logo.JPG" hspace="5" vspace="5" align="right" alt="" border="0" width="288" height="138" />&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;<br /> IGlobal University <br /> 8133 Leesburg Pike<br /> 2nd Floor<br /> Vienna, VA 22182<br /> <br /> <strong>Cost:</strong><br /> $25 Members <br /> $30 Non Members <br /> $35 At the Door<br /> <br /> <a href="https://www.eventbrite.com/e/sba-new-mentor-protege-program-firm-partnership-stability-in-contracting-tickets-47700236692" target="_blank"><img src="https://www.pilieromazza.com/7A2372/assets/images/Logos/Sign Up Button.jpg" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="100" height="26" /></a><br type="_moz" />https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10How to Walk in the Valley of the Shadow of Death: Strategies for Mid-Tier Federal Contractorshttps://www.pilieromazza.com/?t=40&an=79611&format=xml10 Aug 2018Blog<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" />It is a well-known fear of many small business federal contractors that, if you are too successful, it may be the death knell for the business. Every small business set aside is restricted to only those companies whose revenues or employees fall below the applicable size standard, some of which are quite small (only a few million dollars a year in some cases). As a result, small businesses that continue to win work soon find themselves classified as a large business and ineligible to bid on new set asides. These companies are then forced to compete with companies two, five, ten, or even a hundred times their size.<br /> <br /> The immediate step up from small to large makes it very difficult for mid-sized firms, those generally with sizes of $25 million to $500 million in annual revenues, to succeed when competing with multi-billion dollar companies. Frequently in such scenarios, the mid-tier companies fail and close. If they are lucky and can survive a few years, they may fall back below the applicable size standards and rise like a small business phoenix from the ashes, or perhaps more accurately, they begin the Sisyphean labor of growing, exceeding the size standard, shrinking, and starting again&mdash;doomed to repeat the cycle like the cursed king of Ephyra.<br /> <br /> While that all seems rather depressing, there are options to avoid this fate. A common strategy is to partner with a smaller firm that still falls below the applicable size standards in a mentor-prot&eacute;g&eacute; relationship, which allows the prot&eacute;g&eacute; to retain small business contracts. In such an arrangement, the large firm can continue to perform up to 60% of the work on set-aside contracts (through a joint venture with the prot&eacute;g&eacute;). The mentor-prot&eacute;g&eacute; regime allows mid-sized firms not only to work on small business contracts with their prot&eacute;g&eacute; but to acquire up to a 40% equity interest in that prot&eacute;g&eacute; without risk of affiliation. This means that the mid-sized firm not only has the ability to keep most of its incumbent work through the prot&eacute;g&eacute;, it also can keep up to 40% of the prot&eacute;g&eacute;&rsquo;s profits (as the mentor is treated like any owner and thus entitled to its share of the distributions). This incentivizes mentors to truly seek to have the small business succeed, as that then increases the value of the mentor&rsquo;s investment. This must be structured correctly of course, but it is a great option.<br /> <br /> Another option that can work if the goal is to secure the first few full-and-open contracts is to form a joint venture with multiple other mid-sized firms. Unlike for set-aside contracts, on full-and-open contracts you can create a populated joint venture, where the employees who perform the work are employed by the joint venture itself without concern about affiliation. This not only means that, in most cases, you can use the experience and past performance of each joint venture member, but you also can take advantage of lower G&amp;A costs that the joint venture itself may have, which closes the competitive price gap that may exist between a midsized firm and truly large federal contractors. Given that affiliation is not a concern for mid-sized firms, it may even be a viable strategy to form a permanent joint venture with a set of companies that all have complementary skills and experience to compete in the full-and-open arena.<br /> <br /> If you are seeking a longer-term solution, an acquisition may help, but it must be done carefully. This is especially the case if you still have legacy small business contracts due to the risk of recertification. Indeed, under SBA&rsquo;s rules, if a company with small business contracts acquires, is acquired, or merges with another firm, all the entities in the transaction must recertify on their respective contracts. If you are large (calculated after the acquisition), then the agency can no longer take small business credit for the work under the contract and, in rare cases, may terminate the work altogether. Thus, if you or the target firm have small business contracts, it is critical to investigate ways to structure the transaction to avoid recertification. While those strategies are not yet tested through case law&mdash;so there is some risk involved&mdash;for many mid-sized companies, that risk may well be worth it if it means they can continue to have the cushion of legacy contracts while leveraging the newly acquired work and experience.<br /> <br /> Lastly, focused acquisitions in the commercial space, where the acquired target has all or most of its clients outside of the federal marketplace, can catapult a midsized firm into new industries. Such an acquisition can also allow a mid-sized firm to leverage its enlarged asset base, when compared to many of its small business competitors, to secure a competitive advantage in niche areas or unique or new marketplaces. PilieroMazza has helped a number of our mid-sized clients acquire new companies or assets in areas such as specialized camping gear, green energy, modular construction, and more. All of those acquisitions were made by government contractors who had grown out of their size standards, but had strategized and planned for the future prior to losing their small business legacy work. The companies used the revenues from the small business contracts to start investing in commercial technologies and marketplaces. Then, when the time was right, they moved to acquire the companies with which they had partnered in those same spaces. These transactions (1) can take the form of the acquisition of an entire company via stock purchase or merger, (2) can be structured as a strategic investment where the midsized firm takes a non-controlling interest in the other party, or (3) may involve the formation of a holding company, which allows the federal and commercial sides of the businesses to remain separate. The sky is the limit when size standards and affiliation are no longer of any concern.<br /> <br /> As noted above, while it is certainly a legitimate fear of those in the small business federal market that runaway success can ultimately lead to failure due to the strict small business rules and size standards, there are options that can be deployed to prolong life, grow, and even thrive in what may appear to be a valley littered with the remains of once-great mid-tier companies.<br /> <h6><span style="color: rgb(0, 0, 128);">Recently Published in our Legal Advisor Newsletter</span></h6> <span style="font-size: small;"><strong><em>About the Author: </em></strong><em>Cy Alba is a partner and is a member of the Government Contracts and Small Business Programs groups. He may be reached at </em></span><em><a href="mailto:ialba@pilieromazza.com"><span style="font-size: small;">ialba@pilieromazza.com</span></a></em><span style="font-size: small;"><em>.</em><br /> </span> <br type="_moz" />https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Matthew E. Feinberg08 Aug 2018Featured Attorneyhttps://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Current Trends in Federal Procurementhttps://www.pilieromazza.com/?t=40&an=79515&format=xml07 Aug 2018Blog<img src="https://www.pilieromazza.com/7A2372/assets/images/Attorneys/2/150x150/Peter Ford 150 X 150.jpg" hspace="05" vspace="5" align="left" alt="" border="0" width="150" height="150" /><img src="https://www.pilieromazza.com/7A2372/assets/images/Attorneys/2/150x150/Litteken.jpg" hspace="05" vspace="5" align="left" alt="" border="0" width="150" height="150" /> <div>For government contractors, staying ahead of the curve is critical for success. Knowing about a new law, policy, or program can provide you with a competitive advantage.&nbsp; There are three current trends in federal procurement that are significantly affecting the means agencies use to purchase goods and services as well as the ways contractors compete for those opportunities:&nbsp; category management, the 809 Panel, and other transaction authority (&ldquo;OTA&rdquo;).&nbsp; Staying abreast of these trends and determining how you can effectively maneuver in the new marketplace should be a priority for all contractors.</div> <h4><em>Category Management</em></h4> <div>Category management has three primary goals:&nbsp; increasing savings, reducing the number of new contracts, and increasing the amount of spending that is subject to government-wide management.&nbsp; Category management applies to the types of goods and services that are common across federal agencies, referred to as &ldquo;common goods and services.&rdquo;&nbsp; In FY 2017, these common goods and services constituted $303 billion in federal spending.</div> <div>&nbsp;</div> <div>Category management was included as one of the goals in the President&rsquo;s Management Agenda, which was released in March 2018.&nbsp; The President&rsquo;s Management Agenda set a goal of achieving $18 billion in savings by the end of 2020 by applying category management principals.&nbsp; To achieve this goal, the government will increase the number of common goods and services bought through best-in-class contract (&ldquo;BIC&rdquo;) solutions and reduce the number of duplicative contracts by 50,000.&nbsp; BICs are contracts designated by the Office of Management and Budget as meeting various criteria.&nbsp; There are currently approximately 30 BICs, including Alliant, OASIS, and VETS 2.</div> <div>&nbsp;</div> <div>While the goals of category management are laudable, there are serious concerns about adverse impacts on small businesses.&nbsp; BICs are a pillar of category management, and using BICs restricts competition and reduces the number of opportunities for small businesses.&nbsp; The procurements for BICs are incredibly competitive, and the outcomes may be significant.&nbsp; Winning a BIC can make a company, while losing such a valuable opportunity can adversely impact a contractor&rsquo;s ability to get new work.&nbsp; Importantly, although the Government has exceeded its goal for BIC spending to small businesses, the data show that the majority of purchases went to the largest small businesses.&nbsp; And, in 2017, 80% of BIC spending was concentrated among the largest 138 BIC vendors (out of 3,257).&nbsp; This data indicates a real concern about the impact of category management on the industrial base, given that the increasing use of BICs is creating a wide disparity between the &ldquo;haves&rdquo; and the &ldquo;have nots.&rdquo;</div> <div>&nbsp;</div> <div>There is no question that category management is reshaping the way agencies purchase goods and services.&nbsp; And, with bipartisan support, there is reason to believe that it will continue.&nbsp; Given the number of procurements and the proportion of federal spending affected, this is an issue to which contractors should be attuned.</div> <h4><em>809 Panel</em></h4> <div>The 809 Panel, which was created by Congress to develop recommendations to streamline and improve the defense acquisition process, also has the potential to materially affect government procurement.&nbsp; Indeed, the impact will likely be seen beyond the Department of Defense (&ldquo;DOD&rdquo;), as civilian agencies often adopt regulations and policies similar to those of the DOD.</div> <div>&nbsp;</div> <div>The Panel issued its first report in January, which largely centered around the idea of adopting a new acquisition model focused on using streamlined procedures.&nbsp; Two aspects of this new model are particularly noteworthy.</div> <div>&nbsp;</div> <div>The first proposal concerns changes to small business contracting.&nbsp; In this area, the Panel recommended that instead of focusing on meeting socioeconomic goals and primarily acquiring basic services and commodities, the DOD should focus on purchasing innovative goods and services from small businesses.&nbsp; The second notable aspect of the report pertains to bid protests.&nbsp; The Panel initially recommended creating a DOD-specific forum for protests, limiting the potential protest grounds a disappointed offeror could raise, shortening the time to resolve a protest, and limiting the relief available to a protester.&nbsp; These measures are aimed at reducing the number of protests.</div> <div>&nbsp;</div> <div>After the Panel&rsquo;s report was issued, the Panel received strong feedback from industry and other stakeholders.&nbsp; Some observers believed that it intended to eliminate the socioeconomic goals entirely and offered fierce opposition.&nbsp; Others objected to the proposed changes to the bid protest system as anticompetitive and unnecessary.&nbsp; Recent statements from the Panel indicate that it is reconsidering its approach to these two important issues.</div> <div>&nbsp;</div> <div>Because the Panel&rsquo;s final report is not expected until later this year, contractors have the opportunity to continue to give feedback and try to shape the Panel&rsquo;s recommendations.&nbsp; This is significant, as the recommendations in the final report will likely impact multiple aspects of the procurement system.</div> <h4><em>OTA</em></h4> <div>OTA is yet another non-traditional acquisition method designed to give authorized agencies maximum flexibility in obtaining innovation without the red tape of traditional procurements.&nbsp; Eleven federal agencies are authorized to use OTA for different purposes.&nbsp; By statute, DOD may use OTA for &ldquo;prototype projects&rdquo; that are directly relevant to enhancing the mission of military personnel.&nbsp; This authority is intentionally broad and reflects an expansion from the original purpose of developing weapons and weapons systems.&nbsp; Although OTA has been around for decades, Congress recently made the DOD&rsquo;s authority permanent and doubled the dollar thresholds for required approvals of OTA.&nbsp; A contracting office may approve the use of OTA for up to $100 million, and additional approval is needed to use OTA for projects between $100 million and $500 million and for projects in excess of $500 million.&nbsp; These changes have increased the significance of DOD OTA.</div> <div>&nbsp;</div> <div>Using OTA, authorized agencies can issue what are called &ldquo;other transaction agreements,&rdquo; or &ldquo;OTAs.&rdquo;&nbsp; Importantly, OTAs are not contracts, grants, or cooperative agreements, and they are not subject to the FAR or DFARS.&nbsp; They also are not subject to procurement statutes like the Competition in Contracting Act and the Procurement Integrity Act.&nbsp; Nevertheless, these transactions are not entirely immune from protest at the Government Accountability Office (&ldquo;GAO&rdquo;).&nbsp; Although GAO will not review an agency&rsquo;s award decision once it properly elects to utilize an OTA, GAO will examine the transaction to assess whether the agency properly chose to use the OTA instead of a procurement contract.</div> <div>&nbsp;</div> <div>While there are a variety of entity types that can enter into OTAs, forming or joining a consortium appears to be the common approach.&nbsp; Consortia are formed by contractors, non-traditional contractors, and academia based on industry/specialty.&nbsp; Commercial entities and academic institutions may apply to join a consortium as a member.&nbsp; These applications are relatively simple and widely available online.&nbsp; Thus, small businesses interested in pursuing an OTA should consider researching existing consortia and identifying one with a mission that overlaps with their services or products.&nbsp;</div> <h6><span style="color: rgb(0, 0, 128);">Recently Published in our Legal Advisor Newsletter</span></h6> <div><em><span style="font-size: small;"><strong>About the Authors</strong>:&nbsp; Peter Ford heads the Boulder, Colorado office and is a partner in the government contracts group. He may be reached at </span></em><span style="font-size: small;"><a href="mailto:pford@pilieromazza.com"><em>pford@pilieromazza.com</em></a><em>. Michelle Litteken is an associate with firm in the Government Contracting and Litigation law groups. She may be reached at </em><a href="mailto:mlitteken@pilieromazza.com"><em>mlitteken@pilieromazza.com</em></a></span><em><span style="font-size: small;">.</span></em></div> <div><em>&nbsp;</em></div>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Weekly Report for August, 3, 2018https://www.pilieromazza.com/7A2372/assets/files/News/PilieroMazza Weekly Report for August 3 2018.pdf03 Aug 2018Weekly Update Newsletter<h3><u><em>SMALL BUSINESS ADMINISTRATION</em></u></h3> <h4>Surety Bond Guarantee Program Fees</h4> This document announces a temporary decrease in the guarantee fees that the U.S. Small Business Administration (SBA) charges all Surety companies and Principals on each guaranteed bond (other than a bid bond) issued in SBA's Surety Bond Guarantee Program. <a href="https://www.gpo.gov/fdsys/pkg/FR-2018-07-30/pdf/2018-16202.pdf" target="_blank">83 Fed. Reg. 146, 36658 </a><br /> <h4>Contracting with Small Disadvantaged Businesses and Those Owned by Minorities and Women Has Increased in Recent Years</h4> According to an article on <a href="https://www.gao.gov/products/GAO-18-554" target="_blank">GAO.gov</a>, the federal government is one of the country's largest advertisers, spending nearly $1 billion annually on advertising contracts. As it does for virtually all of the products and services it buys, the government seeks to provide procurement opportunities for these contracts to certain socially and economically disadvantaged small businesses and to businesses of any size owned by minorities and women. It was found that the government has generally directed an increasing share of its advertising contract dollars to these businesses, averaging about 13 percent over the past five years. <br /> <h3><u><em>DEFENSE DEPARTMENT</em></u></h3> <h4>Improved Information Sharing Could Help DOD Determine Whether Items are Commercial and Reasonably Priced</h4> The Department of Defense (DOD) contracting officers buy products &quot;off the shelf&quot; to take advantage of innovations and save money. But at times they must navigate a complex process to determine if an item is available commercially and at a fair price. It was found that: <br /> &bull; Required market information on specialized products may be hard to find<br /> &bull; Contractors may be slow to provide information<br /> &bull; Additional steps may be needed to determine if a commercial item needs modification before it is DOD-ready<br /> &bull; Earlier determinations on products may not be valid<br /> &bull; DOD's process for determining if an item can be considered commercial and reasonably priced<br /> <h3><u><em>WHITE HOUSE</em></u></h3> <h4>NDAA Races Through Congress at Historic Pace</h4> According to an article on <a href="https://www.rollcall.com/news/policy/ndaa-races-congress-historic-pace" target="_blank">Rollcall.com</a>, the House adopted the fiscal 2019 NDAA conference report in a 359-54 vote just before that chamber&rsquo;s members left town for the August recess. When the Senate adopts and the president signs the measure in the coming days, as they are expected to do, it will mark 58 years in a row the legislation will have become law. But getting to yes usually takes longer than it did this year, only twice in the last 33 years has the measure been enacted prior to the Oct. 1 start of the fiscal year. The most recent time that happened was more than two decades ago, in fiscal 1997. The last time the NDAA was enacted before September was way back in fiscal 1978. &ldquo;I was actually in the first grade the last time we passed a defense authorization bill this fast,&rdquo; House Speaker Paul D. Ryan told reporters this week. <br /> <h3><u><em>LABOR AND EMPLOYMENT</em></u></h3> <h4>NLRB Will Not Hack Into Prior Decision Regarding Employee Email Use During Non-Work Time</h4> According to an article on <a href="https://www.employmentlawworldview.com/nlrb-will-not-hack-into-prior-decision-regarding-employee-email-use-during-non-work-time/" target="_blank">Employmentlawworldview.com</a>, network security and protection of confidential information are among the reasons many companies place limits on how and when employees may use company-provided email. However, the National Labor Relations Board (NLRB or Board) has largely ignored if not outright rejected these legitimate concerns, finding that under certain circumstances, they are outweighed by the employees&rsquo; right to use email as a means to engage in concerted activity protected by Section 7 of the National Labor Relations Act (NLRA), which includes union organizing. The NLRB&rsquo;s March 24, 2017 decision in Purple Communications, Inc. reconfirmed the Board&rsquo;s position, first announced in an earlier 2014 decision that an employer that provides its employees with access to company email systems must presumptively allow employees to use those systems during non-work time to engage in NLRA-protected activity. Accordingly, under this standard, an employer who maintains a policy prohibiting employees from all use of company email during non-work time presumptively violates the NLRA.<br /> <h3><u><em>GENERAL SERVICE ADMINISTRATION</em></u></h3> <h4>GSA Rolls out Shared Services Pilot for SBIR</h4> According to an article on <a href="https://fcw.com/articles/2018/07/30/sbir-shared-service-rockwell.aspx?s=fcwdaily_310718" target="_blank">FCW.com</a>, the General Services Administration (GSA) hopes to accelerate how small businesses introduce new technologies to federal customers by making the commercialization phase of its small business innovation program a shared services offering. GSA has stood up a pilot plan for its Small Business Innovation Research (SBIR) program. The pilot will make and manage awards for the program through its Office of Assisted Acquisition Services (AAS). AAS&rsquo; Great Lakes Region and Federal Systems Integration and Management teams will lead the pilot, which will run through September. Mark Lee, assistant commissioner for the Office of Policy and Compliance in GSA&rsquo;s Federal Acquisition Service, told reporters in a July 30 conference call that the pilot was prompted by requests from the 13 agencies that use the SBIR program. <br /> <h3><u><em>CAPITOL HILL</em></u></h3> <h4>Risch, Schatz Legislation to Improve Cybersecurity Resources for Small Businesses Heads to President's Desk, Set to Become Law</h4> On August 1, 2018, the U.S. Senate unanimously passed the NIST Small Business Cybersecurity Act, legislation introduced by Senators Brian Schatz and James Risch. The bipartisan bill will provide a consistent set of resources for small businesses to best protect their digital assets from cybersecurity threats. Small businesses are a pillar of the American economy and make up more than half of all jobs in the United States. But these businesses have also become a major target for cyberattacks. <br /> <br /> &ldquo;Since small and medium businesses suffer most often from cyber-attacks, it is vital that NIST, which sets the standard for cybersecurity resources, provide Main Street America with usable resources on how to keep themselves secure,&rdquo; said Senator Risch, Chairman of the Senate Committee on Small Business and Entrepreneurship. <br /> <br /> You can read more about this legislation <a href="https://www.sbc.senate.gov/public/index.cfm/pressreleases?ID=6F2BEA33-D3B6-42CA-921A-DC3128009266" target="_blank">here</a>.<br /> <br /> <br />https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Legal Advisor Newsletter - Third Quarter 2018https://www.pilieromazza.com/7A2372/assets/files/News/PilieroMazza Legal Advisor Newsletter - Third Quarter 2018.pdf02 Aug 2018Legal Advisor NewsletterIn this issue:<br /> <ul> <li>Current Trends in Federal Procurement</li> <li>How to Walk in the Valley of the Shadow of Death:&nbsp;Strategies for Mid-Tier Federal Contractors</li> <li>It&rsquo;s Time to Tell Your Subcontract to Say &ldquo;Aaah&rdquo;: Before You Ink That Upcoming Subcontract, You Would Be Wise to Undergo a Check-up</li> <li>End of Fiscal Year Buying Season&mdash;Cash in with Your GSA Schedule</li> </ul>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Ambika J. Biggs01 Aug 2018Featured Attorneyhttps://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10GAO Considers Impact of Department of Defense Enhanced Debriefing Rights on Protest Timeliness Requirementshttps://www.pilieromazza.com/?t=40&an=79256&format=xml31 Jul 2018Blog<img src="https://www.pilieromazza.com/7A2372/assets/images/Attorneys/2/150x150/Jackie_Unger_150X150.png" hspace="5" vspace="5" align="left" alt="" border="0" width="150" height="150" />In a recent GAO decision, <u><a href="https://www.gao.gov/assets/700/693115.pdf" target="_blank">State Women Corporation, B-416510 (July 12, 2018)</a></u>, GAO denied a protest as untimely after considering the impact of the Department of Defense&rsquo;s (&ldquo;DoD&rdquo;) new enhanced post-award debriefing procedures (&ldquo;Enhanced Debriefing Rights&rdquo;) on GAO&rsquo;s protest timeliness requirements.<br /> <br /> As explained in a prior <u><a href="https://www.pilieromazza.com/dod-issues-class-deviation-to-implement-enhanced-postaward-debriefing-requirements-from-fy-2018-ndaa" target="_blank">blog</a></u>, since March 22, 2018, the DoD has required that, for post-award debriefings conducted in accordance with FAR 15.506(d), offerors be allowed to submit questions within two business days of receiving the debriefing. The debriefing is not considered to be concluded until the agency&rsquo;s written responses are provided, which is supposed to occur within five business days of the agency&rsquo;s receipt of the supplemental questions. The Enhanced Debriefing Rights also provide that a protester that submits supplemental questions can obtain an automatic stay under the Competition in Contracting Act (&ldquo;CICA&rdquo;) so long as its protest is filed within five calendar days after the agency responds to the supplemental questions.<br /> <br /> In <u>State Women Corporation</u>, State Women Corporation (&ldquo;SWC&rdquo;) was an unsuccessful offeror that timely requested a post-award debriefing from the Army Corps of Engineers (&ldquo;Corps&rdquo;). The Corps provided a written debriefing, and SWC submitted supplemental questions the same day. The Corps responded to those questions four days later and stated in its response that &ldquo;[t]he debrief is hereby concluded.&rdquo; Despite this statement from the Corps, SWC submitted further questions to the Corps, and the Corps provided responses to the second set of questions twelve days later. SWC filed its protest four days after receiving the responses to its second set of questions.<br /> <br /> GAO dismissed the protest as untimely because it was filed more than ten days after the protester&rsquo;s receipt of the agency&rsquo;s responses to its <u>initial</u> set of follow-up questions. GAO noted that, despite the Corps&rsquo; voluntary responses to SWC&rsquo;s second set of questions, the Corps had unequivocally indicated that the debriefing was concluded after it provided the responses to SWC&rsquo;s first set of questions, and the Enhanced Debriefing Rights did not entitle an offeror to multiple rounds of debriefing questions.<br /> <br /> Because the Enhanced Debriefing Rights allow an unsuccessful offeror to ask supplemental questions (which thereby extend the debriefing period) only up to two business days following the debriefing, this case underscores the importance of getting written confirmation from the agency that the debriefing remains open if an unsuccessful offeror in a DoD procurement has further questions after receiving responses to its first round of follow-up questions. Likewise, any time an unsuccessful offeror in a <u>non</u>-DoD procurement (where the Enhanced Debriefing Rights do not apply) submits follow-up questions after a debriefing, the unsuccessful offeror would be wise to confirm the debriefing remains open while the questions are pending.<br /> <br /> GAO also addressed the Corps&rsquo; argument that the Enhanced Debriefing Rules require that a protest be filed within five days of the conclusion of the enhanced debriefing. GAO rejected the Corps&rsquo; position, making clear that the Enhanced Debriefing Rules do not impact GAO&rsquo;s timeliness rules&mdash;i.e., a protest following a required debriefing must be filed within ten days of the debriefing. Instead, the Enhanced Debriefing Rules create a new obligation for an agency to impose a CICA stay upon receipt of a protest filed within five days after the agency responds to the offeror&rsquo;s supplemental questions. In other words, a protester has ten days after receiving the agency&rsquo;s response to its supplemental questions to file its protest at GAO, but the protest must be filed within five days of receiving the agency&rsquo;s response if a protester wants to ensure a CICA stay is imposed.<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;">Jackie Unger is an associate with PilieroMazza in the Government Contracts Group. She may be reached at </span></em><u><a href="mailto:junger@pilieromazza.com"><em><span style="font-size: small;">junger@pilieromazza.com</span></em></a></u><em><span style="font-size: small;">.</span></em>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10Acetris Health Case Demonstrates the Value of Strategy in Pre-Award Bid Protestshttps://www.pilieromazza.com/?t=40&an=79133&format=xml26 Jul 2018Blog<img src="https://www.pilieromazza.com/7A2372/assets/images/Attorneys/2/150x150/di_vitto.jpg" hspace="5" vspace="5" align="left" alt="" border="0" width="150" height="150" />We <a href="https://www.pilieromazza.com/court-of-federal-claims-issues-widereaching-decision-on-trade-agreements-act" target="_blank"><u>recently wrote</u></a> about the decision in <u>Acetris Health, LLC v. United States</u>, Case No. 18-433C (July 16, 2018), in which the U.S. Court of Federal Claims (&ldquo;Court&rdquo;) issued a decision about a challenge to the terms of a solicitation issued by the U.S. Department of Veterans Affairs (&ldquo;VA&rdquo;). Although that decision has interesting implications for procurements involving the Trade Agreements Act, the decision also illustrates how pre-award protests can be utilized to maximize the competitive process. Additionally, the decision also raises interesting questions related to considerations implicated in the filing of a pre-award protest of a solicitation&rsquo;s terms.<br /> <br /> In the <u>Acetris</u> case, Acetris Health, LLC (&ldquo;Acetris&rdquo;) filed a protest of the solicitation terms, arguing that the terms of the solicitation were unreasonable. The protest was filed before the date that proposals were due, and Acetris requested that the Court issue declarations that the terms of the solicitation were defective, arbitrary, and capricious. Along with the protest, Acetris filed a motion for a temporary restraining order and preliminary injunction to stop VA from proceeding with its procurement. Acetris also submitted a proposal before the proposal submission deadline. The Court denied Acetris&rsquo; motion for a temporary restraining order and preliminary injunction, and VA then evaluated offerors&rsquo; proposals and selected an offeror other than Acetris for award. VA found that Acetris&rsquo; proposal was unacceptable based on the solicitation terms that Acetris claimed were arbitrary and capricious.<br /> <br /> After award had already been made, the Court issued a decision on Acetris&rsquo; motion for a permanent injunction and found that VA&rsquo;s solicitation terms in fact were arbitrary and capricious. However, the solicitation at issue stated that award would be made to the lowest price technically acceptable offeror, and Acetris did not offer the lowest price. Accordingly, the Court found that the solicitation defects did not entitle Acetris to relief in this procurement because it would not have received the award <u>even if</u> VA had not found Acetris&rsquo; proposal to be unacceptable. Thus, while Acetris won its protest with respect to the solicitation terms, it still lost out on the contract at issue for reasons unrelated to the protest grounds.<br /> <br /> This decision demonstrates the need to be strategic in pre-award protests. While it is important to challenge any solicitation terms you find problematic <u>before</u> proposals are due, it is also important to think through the impact of submitting a proposal for the solicitation you are challenging. Indeed, to file a protest challenging solicitation terms, you must demonstrate that you are a prospective offeror. One way to do that is to submit a proposal for the procurement. Another option is to argue in the protest that, but for the problematic solicitation provision at issue in the protest, you would have submitted a proposal. Each option has its pros and cons. In Acetris&rsquo; case, if it had not submitted a proposal, it may have been given the opportunity to submit a proposal after VA issued an amended solicitation, which could have resulted in it winning the contract. In other cases, not submitting a proposal runs the risk that either you would not be able to demonstrate you have standing to challenge the solicitation terms or you miss out on the procurement completely if your pre-award protest is denied. This decision should be made based on the specific circumstances of your pre-award protest, and you should make sure you understand the consequences and benefits of your decision as you make it.<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;">Julia Di Vito practices in the areas of government contracts, litigation, and labor and employment. She may be reached at </span></em><em><a href="mailto:jdivito@pilieromazza.com"><span style="font-size: small;"><u>jdivito@pilieromazza.com</u></span></a><span style="font-size: small;">.</span></em>https://www.pilieromazza.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10