The Mandatory Disclosure Rule – Demystifying Your Disclosure Requirements

By Katie Flood It’s that gut-check scenario: You realize that your company has made a mistake on an invoice submitted on a government contract, or that your company has mistakenly represented its size or socioeconomic status. Regardless of what shape the mistake has taken, you are wondering how best to limit your company’s potential exposure. You also wonder, as a small business, what exactly you are required to disclose to the government. This is where the Mandatory Disclosure Rule (MDR) . . . Read More

Five Signs Your Teaming Agreement Will Lead to Affiliation

Teaming agreements are valuable tools for all government contractors. They allow the proposed prime contractor and subcontractor to iron out their relationship prior to competing for a government opportunity. Teaming relationships themselves are particularly important to small business contractors who are trying to grow their portfolio, but may need the insight of an experienced subcontractor. However, small business primes teamed with large subcontractors on set-aside contracts are chief targets for size protests. Therefore, all small business primes must ensure that . . . Read More

“Fair Pay” Rules Just Aren’t Fair

Women Impacting Public Policy (WIPP) recently submitted comments on proposed regulations that would require federal contractors to disclose labor violations from the past three years. This blog accompanies those comments as a summary of WIPP’s position. For more details or if this impacts your business, I encourage you to read the full comment here . Last summer, President Obama issued an Executive Order with the goal of barring bad companies from winning federal contracts. WIPP, along with most in the contracting community, agrees . . . Read More

A Refresher on the Non-Manufacturer Rule

By Katie Flood Unless you are a small business regularly engaged in selling supplies to the U.S. Government, you may have only a passing familiarity with the requirements of the Non-Manufacturer Rule (NMR). The NMR is an exception to the usual requirement that contractors supplying goods to the government perform at least 50 percent of the cost of manufacturing the items. A manufacturer is a business concern that, with its own facilities, performs primary activities in transforming organic or inorganic . . . Read More

“March-in” Rights – The (Paper) Damoclean Sword of Federal Procurement Patent Law

Given the recent PilieroMazza webinar on Data Rights in federal contracting , we have had a number of clients raise concerns or questions about the government’s “march-in” rights under the Bayh-Dole Act, which controls certain data rights and patent issues under federal contracts. For those of you who do not already know, for patentable items created under federally-funded contracts, the government has the right to force the contractor who holds the patent to issue a license to third parties, including competitors, under certain conditions. As we will see, . . . Read More

Not So Far Out: OMB Memo Indicates Cybersecurity FAR Clauses Are Coming Soon

On August 11, 2015, the Office of Management and Budget (“OMB”) released a draft policy memo entitled “Improving Cybersecurity Protections in Federal Acquisitions.” The purpose of the memo is to provide federal agencies with guidance to implement stronger cybersecurity protections in federal acquisitions for products or services that generate, collect, maintain, disseminate, store, or provide access to Controlled Unclassified Information (“CUI”). OMB is seeking public comments and suggested revisions by September 10, 2015, and expects to issue the final guidance . . . Read More

Letter of Intent: A Seller’s Friend or Foe?

For a business owner, the sale of the company is the final act in the life cycle of the company (TargetCo). It represents the business owner’s opportunity to cash out on and be rewarded for his or her vision, ingenuity, years of hard work, sacrifice and risk-taking. Typically, after some confidential discussions and limited sharing of a TargetCo’s financial and non-financial information, a critical, next step in the sale process is negotiating and entering into a letter of intent (LOI) . . . Read More

No Longer on Hold: SBA Resumes 7(a) Lending to Small Businesses

The 7(a) lending program is back on track. Last month, President Obama signed into law a bill that would raise the SBA’s lending authorization ceiling to $23.5 billion for its flagship lending program. With the bill’s signing, the SBA resumed loan approvals and small businesses are again able to get loans backed by the federal government. On July 23, 2015—just a few days before the president put pen to paper—the SBA maxed out its $18.75 billion lending limit for small . . . Read More

Government Contractors Beware: Trying to Fit A Square Peg into A Round Hole

By Kimi Murakami What may be standard in the corporate world can severely disrupt set-aside status in the highly-regulated government contract space. Take the recently-decided case of Precise Systems. This decision presents another cautionary tale of why it is so critical for contractors to understand the SBA rules–or to talk to lawyers who do–before entering into corporate restructuring transactions. In the final decision issued by Chief Judge Patricia Campbell-Smith in the case of Precise Systems, Inc. v. U.S., No. 14-1174C (Fed. Cl., . . . Read More

Ninth Circuit Eases Ability for Whistleblowers to Bring Qui Tam Actions

In an important development under False Claims Act (“FCA”) case law, the U.S. Court of Appeals for the Ninth Circuit has expressly abrogated former precedent limiting the ability of whistleblowers to recover funds reimbursed to the Federal Government under the FCA to a greater degree than in many other circuits. The case is United States ex rel. Hartpence v. Kinetic Concepts, Inc., No. 12-55386 (9th Cir. July 7, 2015). Generally, the FCA prohibits the knowing submission to the Federal Government . . . Read More