Potential Bid Protest Dangers: When the Agency Produces Documents Early

By Alex Levine To paraphrase Virgil, beware of agency counsel bearing gifts.  Under the U.S. Government Accountability Office’s (GAO) bid protest rules, an agency is required to produce a report within 30 days of a protest that includes a copy of all relevant documents.  However, there is nothing preventing an agency from producing some or all of these documents even sooner.  And, in recent cases, we have seen agency counsel increasingly doing so. While the agency almost never explains why . . . Read More

Proposed FAR Amendment Would Greatly Expand Policing of Contract Employees for Personal Conflicts of Interest

People are people. As such, contract employees and self-employed subcontractors will inevitably create relationships with others based on common interests. Most of these relationships are, for purposes of this discussion, benign. However, in some cases, the relationships of contractors’ employees can result in actual or potential conflicts with the interests of the federal government. According to the  Federal Acquisition Regulation  (“FAR”), a personal conflict of interest means “a situation in which a[n] employee has a financial interest, personal activity, or relationship that could . . . Read More

“Are You Being Served?” If So, Your ESI Must Be Preserved!

Unlike the classic British sitcom “Are You Being Served?”, as any business owner who has been on the receiving end of a threat of litigation or was served with a complaint can attest, there is nothing remotely amusing about what is in store for the company. And one of the most challenging, time-consuming and costly aspects of litigation is the discovery process—whereby each side, if asked through interrogatories and document requests, must show its respective hand, in the process producing . . . Read More

Can You Have A Partnership of One and Why The Answer Matters to Joint Ventures

By Kimi Murakami Companies can come in all different shapes and sizes. They can be traditional C corporations, limited liability companies, general partnerships, limited partnerships, S corporations, joint ventures (“JVs”) or various combinations of the above. Selection of corporate structure should be made in consultation with your legal and tax advisors as it is critical when initially forming your company, particularly if you intend to perform government contracts. As with many decisions in running a government contract business, what may . . . Read More

Setting Aside the Glass Ceiling: WOSBs Should Have the Same Advantage as Other Set-Aside Programs

Published in the April 1, 2014 Federal Contracts Report. Small businesses are often touted as the engine of our economy, and rightly so. According to the U.S. Census Bureau, small businesses comprise 99.7 percent of U.S. employers, are responsible for 64 percent of net new private-sector jobs, and roughly 50 percent of private-sector employment. Recognizing that small businesses are the key to “maintain and strengthen the overall economy,” Congress has set goals for how much the federal government will spend . . . Read More

Recent Governmental decision may benefit contractors on breach of duty of good faith, fair dealing claims

By Brian Wilbourn It is likely that most prime contractors, at one time or another, have felt that their Government customer was not treating them fairly.  It is not always clear, however, when conduct that the contractor views as unfair or uncooperative goes so far as to constitute a breach of contract.  A recent decision from the Federal Circuit Court of Appeals has provided important clarifications to this question, which should benefit contractors in pursuing claims against the Government for . . . Read More

Do You Own the Intellectual Property Created by Your Employees?

With the days of patent and copyrights applying mainly to tangible objects being long gone, data and patent rights are becoming more important than ever. Now, every process, software, procedure, and other intellectual property (“IP”) created by your company has real value and is often patentable or copyrightable. Most companies likely assume that if an employee creates IP within the scope of his/her employment then the rights to that property vest with the employer. This, however, is a dangerous assumption. . . . Read More

Selecting the Right Employee Incentive Plan Can Be Tricky

The purpose of an employee incentive plan, regardless of the specific type or form that it takes, is to more closely align a key employee’s financial interests with the company’s. The company owners’ challenge when developing and implementing an employee incentive plan is to strike the right balance between allowing key employees to share in the company’s upside success, while at the same time protecting the company’s downside risk in the event one or more of the key employees fails . . . Read More

Dissatisfied with an Unsatisfactory Rating? Contractor Options for Challenging CPARS

By Megan Connor This blog article has been updated due to changes in the regulations.   To read the latest version, please click here . Confronted with an unfavorable interim or final Contractor Performance Assessment Report System (“CPARS”) rating, the first question clients ask us is, “What can we do?” The answer: challenge it. The FAR provides that contractors must be given a minimum of 30 days to submit comments, rebutting statements, or additional information upon receipt of a CPARS. If you disagree with anything in a CPARS, . . . Read More

The Benefits of Intervention

By Alex Levine You’ve just secured a high dollar government contract award. After weeks of proposal preparation effort, thousands of dollars in costs, and months of waiting, your business stands to receive a major boon. Then comes the email. The contract award has been protested by a losing offeror and the award is on hold. What should you do? It may seem reasonable to simply trust that the government will adequately defend the award against protest. Such an approach comes . . . Read More