SBA Continues to Focus on Fraud in Set-Aside Programs
The Weekly Update for July 20, 2018
SMALL BUSINESS ADMINISTRATION 504 Loan Program Rural Initiative: Waiver of Limitation on Lending Authority According to an article in amazonaws.com , the U.S. Small Business Administration (SBA) announced the 504 Loan Program Rural Initiative Pilot Program (504 Rural Pilot). The 504 Rural Pilot waives the restrictions on the authority of Certified Development Companies (CDCs) to make 504 loans outside their Area of Operations to allow each CDC to make loans for 504 Projects with an address located in any rural county . . . Read More
GAO Weighs in on Facility Clearance Requirement for Unpopulated Joint Ventures
A recent GAO decision upholds a facility clearance in a U.S. Department of Homeland Security (“DHS”) solicitation even if burdensome to unpopulated joint ventures. The protester in the case made a common mistake among unpopulated joint ventures: assuming the clearances of the venturers may be attributed to the joint venture, without going through the process of clearing the joint venture. GAO found the cleared status of the venturers was irrelevant under applicable classified information policies. In Management and Technical Services Alliance Joint Venture , B-416239 (June 25, . . . Read More
The Weekly Update for July 13, 2018
DEFENSE DEPARTMENT To Streamline Acquisitions, 809 Panel Presses Department of Defense to Adopt Portfolio Management According to an article on federalnewsradio.com , the congressionally-mandated panel in charge of finding ways to streamline the Defense acquisition system called on June 28, 2018 for dramatic changes in how DoD organizes itself to define requirements for weapons systems and manage its procurement budgets, saying DoD must move to a “portfolio-centric” approach to procuring military equipment. In the second volume of its report to Congress, . . . Read More
New and Proposed Certified Cost or Pricing Data Requirements Will Shift Burdens upon DoD Contractors
Compliance with the requirements of the Truthful Cost or Pricing Data statute (“TCPD”), which is still commonly known as the Truth in Negotiations Act, has been a significant burden to many small business contractors. Under TCPD, federal contractors are required to submit “certified cost or pricing data” to the contracting officer prior to the award of negotiated contracts where (i) the price exceeds a specific threshold and (ii) an exception to the requirement is not applicable. If there is a . . . Read More
No-Poaching Agreements: You Could Be Criminally Liable
Earlier this year, the Department of Justice’s Antitrust Division (DOJ) issued the Antitrust Guidance for Human Resource Professionals (DOJ Guidelines), which signaled for the first time that DOJ would “proceed criminally against naked wage-fixing or no-poaching agreements.” “No-poaching” or wage fixing agreements are a defense against employees leaving their companies to work for competitors in tight markets. However, companies that are not careful and enter into these agreements could face substantial liability, even criminal liability. By way of example, in . . . Read More
Employment Law for Government Contractors: Yes, It’s Different.
Presented by Nichole Atallah and Sarah Nash Click here to view the recorded session. As complicated as labor and employment requirements can be, the rules for government contractors are even more intricate. The Federal Acquisition Regulation (FAR) provides a roadmap for requirements that are unique to federal government contractors and includes provisions such as human trafficking prevention, service contract labor standards, sick leave, and affirmative action requirements. This webinar gives those dusty old FAR provisions new life and provides a simple framework . . . Read More
GAO Denies Protest Based on Cybersecurity Compliance
Last month, I blogged about DoD’s draft guidance on how it will evaluate cybersecurity compliance in the award of contracts. The blog is available here . Based on this draft guidance indicating DoD may use cybersecurity compliance as pass/fail or best value criteria in evaluations, I concluded that bid protests would not be too far behind once DoD finalizes and implements the guidance. The public comment period on DoD’s draft guidance recently closed, so we may still be a little way . . . Read More
The Weekly Update for June 29, 2018
DEFENSE DEPARTMENT Federal Acquisition Regulation: Special Emergency Procurement Authority The Department of Defense, General Service Administration, and National Aeronautics and Space Administration are proposing to amend the Federal Acquisition Regulation to implement sections of the National Defense Authorization Act for Fiscal Year 2017 to expand special emergency procurement authorities for acquisitions of supplies or services that facilitate defense against or recovery from cyber attack, provide international disaster assistance under the Foreign Assistance Act of 1961, or support response to an . . . Read More
False Claims Act Cases Involving Set-Aside Contracts Held to More Stringent Requirements Following Escobar
Two years have passed since the U.S. Supreme Court issued Universal Health Services, Inc. v. United States ex rel. Escobar, a key False Claims Act (“FCA”) case that resolved a circuit court split regarding the scope and validity of the implied false certification theory and established that the materiality standard for FCA cases is “demanding.” Since that time, lower courts have been implementing those standards to varying effects. The trend has been favorable for companies facing FCA cases that allege . . . Read More