The Case for Intervening in Bid Protests: It’s Almost Always the Right Call
You’re a federal government contractor who just won a contract award. But, before you pop the champagne, there’s a hiccup: a competitor filed a bid protest challenging your award. “Oh, well,” you think, “the government can surely defend my award; there’s no reason for me to get involved.” Think again. This blog covers why contractors should step in and intervene when a bid protest challenges their awarded contract. It’s not just about safeguarding your contract; it’s also about ensuring you . . . Read More
Enforceability of Pay-if-Paid Clauses in Construction Subcontracts: Mid-Atlantic Region
Pay-if-paid clauses are conditional payment provisions regularly included in construction subcontracts. The intent of these clauses is to shift the risk of loss from a prime contractor to its subcontractors by making a project owner’s payment to the prime contractor a condition precedent to the prime contractor’s obligation to pay its subcontractors. [1] The enforceability of pay-if-paid clauses is a frequent topic of dispute, becoming more complicated when a prime contractor posts a payment bond protecting subcontractors and suppliers from non-payment . . . Read More
Impact of 11th Circuit’s Sovereign Immunity Waiver Decision on Tribally-Owned Businesses in SBA’s 8(a) Program
On May 1, 2024, the U.S. Court of Appeals for the Eleventh Circuit issued a sweeping decision impacting sovereign immunity for tribally-owned government contractors. The first-of-its-kind appellate decision concludes that by participating in the U.S. Small Business Administration’s (SBA) 8(a) Business Development Program (8(a) Program), tribally-owned entities waive sovereign immunity as to virtually all—if not all—claims connected in any way to the entity’s 8(a) Program participation, regardless of the tenuous nature of the connection. Tribally-owned government contractors should adjust their . . . Read More
CISA Unveils Final Self-Attestation Form for Software Producers Bidding on Federal Contracts
In March 2024, the Cybersecurity and Infrastructure Security Agency (CISA) released the final version of its secure software development self-attestation common form (Form), requiring federal government contractors who produce and provide software to verify that it complies with government-specified, minimum secure software development practices. Nearly one year ago, CISA published a draft version of the Form requesting public comment. PilieroMazza discussed some of the key requirements and implications of the draft form here . Contractors who sell software to the government . . . Read More
Is It Time for Regulations on GSA’s Contractor Teaming Arrangements?
In the late 1990s, the General Services Administration (GSA) created the concept of Contractor Teaming Arrangements (CTAs). Unlike the contractor teaming arrangements described under FAR 9.601, which simply describe a joint venture or prime contractor/subcontractor relationship, the GSA created a wholly new type of contracting team where all members of the team have privity [1] with the federal government and are all co-prime contractors…supposedly. In this blog, PilieroMazza reviews the limited rules governing CTAs and the impact on government contractors’ ability . . . Read More
Terms and Conditions vs. Contract Clauses: Which Language Applies to Government Contract Disputes?
Determining which language applies to a contract dispute is critical to any contractor seeking to recover costs through the claims and appeals process. Recently, through a series of appeals before the Civilian Board of Contract Appeals (CBCA) and the Court of Appeals for the Federal Circuit (Federal Circuit), both forums offered more fulsome guidance on when a contractor’s terms and conditions will apply to a contract despite potentially conflicting with standard federal contract provisions. Below, PilieroMazza summarizes relevant cases and . . . Read More
Unlocking the Potential of Phantom Equity: Incentive and Compensation Strategies to Attract and Retain Top Talent
Navigating the landscape of employee incentives can be complex, particularly when exploring non-traditional compensation methods. Phantom stock, also known as synthetic equity, offers a unique solution for business owners seeking to incentivize and retain key personnel without giving away ownership in the company. Below, PilieroMazza attorneys answer commonly asked questions regarding the nature of phantom stock, outlining its structure, benefits, and the strategic considerations involved with this valuable tool for attracting and retaining top talent. What is a phantom plan . . . Read More
Novation and Recertification Requirements: A Post-Closing Guide for GovCon M&A Deals
After the sale or acquisition of a business or its assets, there are often one or more post-closing requirements that business owners must complete. In deals involving government contractors, two of these requirements are especially important: contract novation and size recertification. Below, PilieroMazza attorneys provide a post-closing guide for government contractors on meeting novation and recertification requirements to avoid costly penalties such as loss of contract award or criminal liability. Overview Parties preparing to acquire a small business government contractor, . . . Read More
Corporate Transparency Act Updates for Government Contractors and Commercial Businesses: Constitutionality, Exemptions, and Substantial Control
The Corporate Transparency Act (CTA), which came into effect on January 1, 2024, has significant implications for government contractors and commercial businesses. This client alert summarizes recent developments in the CTA—including constitutionality, physical office requirements, unpopulated joint ventures, and substantial control—to help businesses comply and avoid harsh enforcement penalties. If you formed an entity on or after January 1, 2024, and are not subject to one of the exemptions, then you must file your initial BOI report within 90 days from . . . Read More
Keys to Avoiding GAO’s Timeliness Trap
GAO’s recent decision in Marathon Medical Corporation provides a cautionary tale for government contractors seeking to protest the terms by which an agency conducts a procurement. Specifically, Marathon reinforces a little-known rule: the Government Accountability Office considers an agency’s receipt of proposals to be adverse agency action in response to an agency level protest challenging the terms of a solicitation, and the ten-day rule for filing a subsequent protest at GAO begins running from the date on which the agency . . . Read More