The Firm Fixed Price Profits Reduction Clause: Government Takes All the Benefits and None of the Risk?
It has been well understood in the Federal Acquisition Regulation (“FAR”), and in government contracting generally, that different contract types balance the risks and rewards so as to ensure both the government and the contractor share in the risk. In Firm Fixed Price (“FFP”) contracts, the contractor takes on the risk of any cost overruns, while it can benefit from reduced costs to take home more profits. With cost reimbursable contracts, the government gains the benefit of cost underruns but . . . Read More
Judge v. Jury – Considerations for the Corporate Litigant When Making that Important Decision
The Seventh Amendment to the U. S. Constitution guarantees the right to a trial by jury in most federal court civil cases involving money damages. And while the constitution does not extend this right to the states, most have laws or constitutional provisions preserving the right to trial by jury in civil matters that exceed a threshold monetary amount. When a company is suing, or has been sued, for money damages, the important question of whether to have the case . . . Read More
The Weekly Update for November 4, 2016
DEPARTMENT OF DEFENSE Withholding of Unclassified Technical Data and Technology from Public Disclosure The Department of Defense (“DOD”) Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics has proposed a rule that establishes policy, assigns responsibilities, and prescribes procedures for the dissemination and withholding of certain unclassified technical data and technology subject to the International Traffic in Arms Regulations and Export Administration Regulations. It applies to DOD components, their contractors and grantees, and is meant to control . . . Read More
Proposed Circular Could Change the Way the Government Procures Common Goods and Services
By Michelle Litteken On October 7, 2016, the Office of Management and Budget (“OMB”) issued Proposed OMB Circular No. A-XXX, Implementing Category Management for Common Goods and Services . If implemented, the proposed Circular could dramatically change the way the fovernment purchases common goods and services. The Circular defines “common goods and services” as “those items and services that all or most federal agencies procure and are not unique to the mission of an individual agency.” Common goods and services are interchangeable and are usually commercially available. In FY 2015, the government spent . . . Read More
Far Reaching Impact of DOL’s Increase to FLSA Salary Thresholds
Beginning on December 1, 2016, employees who are salaried and classified as exempt administrative, professional or executive employees must make at least $922 dollars per week or $47,476 per year to remain exempt from the overtime requirements of the Fair Labor Standards Act, in addition to meeting the duties requirements of the exemption. This regulatory change more than doubles the current salary threshold of $455 per week and is likely to significantly increase the cost of doing business. While many . . . Read More
How Should a Government Contractor Prepare the Company for Sale?
By Dana Livne Whether you have decided to sell your company or have just begun considering the possibility, you will want to make the most out of your market potential. The preparation you undertake before the sale will help you maximize this unique opportunity, and to a large extent, determine your financial and professional future. To put your business in the strongest position for sale, it is crucial that you prepare a strong business exit strategy. This plan should include . . . Read More
Fair Pay Safe Workplaces Halted But Not Dead
On October 24, on the eve of its implementation, the U.S. District Court for the Eastern District of Texas issued a nationwide order halting the implementation of the bulk of Executive Order 13673, Fair Pay Safe Workplaces, which imposes new reporting requirements on government contractors regarding labor law violations and prohibits them from entering into pre-dispute arbitration agreements for matters arising under Title VII of the Civil Rights Act and for torts based on sexual assault or harassment. Under the . . . Read More
Non-Commercial Computer Software Rights and Government Misconceptions About What It Buys
This article is the third installment in a series on Data Rights in Federal Contracts. We first wrote about what data rights were ; then about technical data and how to protect it ; and now we will discuss ownership, license rights, and the protection of rights in non-commercial computer software. Because non-commercial computer software is treated like non-commercial data under the FAR (a topic discussed at length in the prior installment of this series), we will focus now on how non-commercial software is treated under the DFARS. That said, the general principles discussed . . . Read More
Take Note of This Law Regarding Small Business Offerors Under Multiple Award Contracts
By Julia Di Vito The National Defense Authorization Act (“NDAA”) for Fiscal Year 2016, which went into effect on November 25, 2015, contains some requirements regarding multiple award contracts that you might not know about. The 2016 NDAA amended part of the Small Business Act, 15 U.S.C. § 644(q), which governs the award of contracts by the Federal Government. This statute, as amended, now requires that for any multiple award contract above the “substantial bundling threshold of the Federal agency,” the agency . . . Read More
Expiration of GAO’s Jurisdiction of Civilian Agency Task Order Protests Limits Government Contractor Options
As of October 1, the U.S. Government Accountability Office’s (“GAO”) jurisdiction over protests on civilian agency task orders valued at more than $10 million expired, leaving government contractors with limited grounds for protesting such task order awards. In 1994, the Federal Acquisition Streamlining Act (“FASA”) was enacted in response to concerns that the federal procurement process was too cumbersome and complicated. One of the FASA reforms included a limitation on contractors’ ability to protest the issuance of task order awards, . . . Read More