Rule of Two Changes: OMB Memo Aims to Make Rule of Two Apply to Task and Delivery Orders and SBA’s Proposed Rules, Coming Soon, Will Shape the Future Procurement Landscape

On January 25, 2024, the White House Office of Management and Budget issued a memo, Increasing Small Business Participation on Multiple-Award Contracts, calling for executive agencies to apply the FAR’s Rule of Two to task and delivery orders competed under multiple-award contracts. Contractors should take note that this change has the potential to significantly increase the number of small business set-asides, and in turn, it could mean millions more dollars in contract opportunities for small businesses. In this blog, we . . . Read More

Forgiveness Denied: Protecting Your Rights During the PPP Loan Appeal Process

In 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act established the Paycheck Protection Program (PPP). Under the PPP, eligible businesses could receive loans for support through unprecedented times. Loan forgiveness was all but promised by not only lenders processing the loans, but the Small Business Administration (SBA) which was tasked with implementing the program. With SBA planning to claw-back PPP loans for years to come, borrowers should be aware of how to protect their rights when appealing a . . . Read More

Good News for Pandemic-Related Government Contract Claims: McCarthy HITT – Next NGA West JV

On December 20, 2023, the Armed Services Board of Contract Appeals (the Board) denied the government’s motion to dismiss pandemic-related claims. In doing so, the Board rejected the government’s arguments alleging that the claims (1) failed to state a claim, (2) were barred by the sovereign acts affirmative defense, and (3) failed to provide a clear amount as required by the Contracts Disputes Act. The Board’s rejection of the government’s motion to dismiss in McCarthy HITT – Next NGA West . . . Read More

Subcontract Flow-Down Provisions: Constructive Acceleration and Delays on Federal Projects

A contractor’s claims against the government for constructive acceleration and delays are governed, in part, by the applicable clauses of the Federal Acquisition Regulations (FAR) incorporated into its contract with the government. Whereas a subcontractor’s claims against a contractor for constructive acceleration and delays are governed, in part, by which FAR clauses are incorporated into its subcontract. Prime contractors and subcontractors on federal projects should be aware of the importance of understanding flow-down provisions in subcontracts and how they can . . . Read More

Inter-Con Security Systems: Significance of CBCA’s Decision on Government Contractors

On September 29, 2023, the Civilian Board of Contract Appeals (CBCA) ruled that a federal contractor could not collect damages from the U.S. Marshals Service (USMS). The contractor’s claim, asserting that it was being sued by former employees as a result of government action, was rejected by the CBCA. The CBCA’s decision in Inter-Con Security Systems, Inc. v. U.S. Dept. of Justice, CBCA No. 6995, suggests that when government action is justified by contract language, a lawsuit filed by a former . . . Read More

Protecting Our Nation’s Data, Part 3: Are Goods or Services Subject to FASCSA Orders?

Substantive cybersecurity amendments to the Federal Acquisition Regulation (FAR) are underway, significantly altering the duties and obligations of federal government contractors both prior to award and during contract performance. The FAR Council issued an Interim Final Rule implementing Section 202 of the Federal Acquisition Supply Chain Security Act of 2018 (FASCSA) [1] , as well as a 2021 Final Rule ( Final Rule ) granting the Federal Acquisition Security Council (FASC) authority to issue orders excluding or removing goods or services from the supply chain that . . . Read More

Protecting Our Nation’s Data, Part 2: Implementing Cyber Threat Incident Reporting and Information Sharing

In October 2023, the federal government released a  Proposed Rule aimed at incorporating new cybersecurity reporting requirements into the Federal Acquisition Regulation (FAR). In this second installment of PilieroMazza’s blog series “Protecting Our Nation’s Data,” we discuss the Proposed Rule which seeks to implement Executive Order 14028 (EO 14028) and increase the exchange of information between contractors and the government regarding cyber threats and incident reporting. As the government continues to roll out new cybersecurity requirements, government contractors should understand these requirements, how they could . . . Read More

Protecting Our Nation’s Data, Part 1: Cybersecurity Standardization Requirements for Unclassified Federal Information Systems

New standardized cybersecurity compliance requirements are inbound. In early October 2023, the Federal Acquisition Regulation (FAR) Council issued a proposed rule ( Proposed Rule ) to standardize cybersecurity requirements across federal agencies for unclassified Federal Information Systems (FIS).  This blog, the first in a series, addresses why government contractors should familiarize themselves with these requirements as non-compliance could affect contract eligibility and payment, as well as exposure to False Claims Act (FCA) liability. [1]   Contractual cybersecurity requirements for unclassified FIS are currently . . . Read More

SBA and ISOO Issue Guidance on Facility Security Clearances for Joint Ventures

On October 5, 2023, the Information Security Oversight Office (ISOO) and the Small Business Administration (SBA) released a Joint Notice that provides guidance on the facility security clearance (FCL) requirements for joint ventures (JVs). Government contractors participating in JVs to pursue classified work should be aware of FCL requirements for each member of the joint venture.  As outlined in a prior blog post, historically, there has been confusion as to whether a JV can rely on the FCLs of its members. Some of . . . Read More

New Developments in Ultima Case: Potential Effect on Current and Future SBA 8(a) Program Participants

On September 15, 2023, Ultima Services (Ultima) filed a motion in the U.S. District Court for the Eastern District of Tennessee seeking additional equitable relief in its suit challenging the constitutionality of the Small Business Administration’s (SBA) 8(a) Business Development Program (8(a) program). [1] Ultima’s motion comes after the SBA’s recent suspension of new applications to its 8(a) program to comply with U.S. District Court Judge Corker’s July 19, 2023, decision. 8(a) contractors should be aware of these developments as the court’s . . . Read More