Recent Supreme Court Decision Reaffirms Tribal Sovereign Immunity for Commercial Activities Conducted Off-Reservation
In 1998, the U.S. Supreme Court confirmed that, absent a waiver or Congressional action to the contrary, the doctrine of tribal sovereign immunity applies to lawsuits arising from a tribe’s commercial activities, even if they take place off of Indian lands. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 758 (1998). Since that decision, commercial enterprises owned by Indian tribes have entered into increasingly varied lines of business and have enjoyed increasing amount of success. With that success . . . Read More
Inflation Adjustments Coming to Small Business Size Standards
On June 12, 2014, the Small Business Administration (SBA) issued an interim rule, which goes into effect on July 14. This new rule increases the size standards applicable to nearly every NAICS code used in Federal Contracting (some were not adjusted, especially cases where the size is set by statue). This was the first time that the SBA adjusted any of the size standards to account for inflation since 2008. Given that many sectors of the economy are starting to . . . Read More
FAR Amended to Clarify Contractor Responsibilities Pursuant to the Defense Base Act
By Nichole DeVries The Department of Defense, the General Services Administration and NASA issued a final rule on May 30, 2014, which amended the Federal Acquisition Regulation (FAR) to clarify contractor and subcontractor responsibilities to obtain workers’ compensation coverage, or to qualify as a self-insurer under the terms of the Longshore and Harbor Workers’ Compensation Act (LHWCA), as extended by the Defense Base Act (DBA). The most significant change to the FAR impacts the employer’s responsibility for carrying out DBA . . . Read More
Securing Corrective Action May Raise Further Challenges
By Alex Levine According to the latest statistics available from the U.S. Government Accountability Office (GAO), roughly half of all bid protests filed at the GAO are dismissed within 30 days of filing. Of these, the majority of dismissals occur because the procuring agency takes corrective action in response to the protest. Corrective action often involves the agency agreeing to perform a reevaluation or make a new award determination. Corrective action can be an important early victory; it may provide . . . Read More
If You Can’t Beat ‘Em, Institute a Moratorium
By Nichole DeVries On May 7, 2014, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2014-01, instituting a five-year moratorium on the OFCCP enforcement over TRICARE subcontractors. The moratorium applies to health care entities that participate in TRICARE as subcontractors under a prime contract between the Department of Defense (DOD) TRICARE Management Activity and one of the prime contractors providing managed-care contractors. Why would OFCCP stop auditing TRICARE subcontractors? According to OFCCP, there is a “difference in understanding” . . . Read More
Victory in House of Representatives for Improvements to WOSB Federal Contract Program
By Barbara Kasoff, President of WIPP Dear WIPP Members & Friends: It is with great pleasure I write today, celebrating an enormous victory for women business owners. As many of you already know, earlier today the House of Representatives passed their annual defense bill, which included two changes that strengthen the Women-Owned Small Business (WOSB) procurement program. First, the bill allows sole-source contracts to be awarded through the program. Currently, contracting officers are unable to award sole-source contracts through the . . . Read More
HUBZone Map Changes – New Information Released for Over 100 Non-Metropolitan Counties
By Katie Flood Good news for many HUBZone (or HUBZone-interested) firms: The SBA has just announced that 104 non-metropolitan counties have been designated as newly qualified HUBZones or have had their redesignation periods extended, based on 2013 unemployment data recently released by the Bureau of Labor Statistics. While the SBA has provided the new information on the counties in the form of PDF and Excel documents, the HUBZone maps have not yet been updated. However, simply because the map has not been updated would . . . Read More
Strategic Tips for Approaching Lenders and How to Choose the Right One
For those small businesses that are looking to obtain debt financing or to refinance existing debt, there are some strategic planning tips to consider in approaching and selecting a potential lender. As the saying goes, you only get one chance to make a first impression. With lenders, this first impression is all-important. Failing to make a good one can be the difference between a lender making or not making a loan. And, this first impression will also significantly influence the . . . Read More
Presumed Loss Rule: They Are Who We Thought They Were
After a gut-wrenching loss on Monday Night Football several years ago, former Arizona Cardinals Head Coach Dennis Green, speaking about the victorious Chicago Bears, famously ranted: “They are who we thought they were. And we let them off the hook!” Since the implementation of the SBA’s presumed loss rule last year, you should be applying the same sentiment to your subcontracts with small businesses. Make sure your subcontractor is who you thought they were, and do not let them off . . . Read More
State Law No Defense to Miller Act Claims
Since I work with a number of construction contractors, I always get the question of whether the state law chosen to govern the contract has material impact on the contract and/or whether it could be determined which state laws would be best for our client. For instance, Colorado has a law restricting a prime contractor’s ability to disallow receivable financing (such as “Factoring”), and Virginia law prohibits revising (or “Blue Penciling”) restrictive covenants in agreements which are found to be . . . Read More