Considerations When Choosing a Mentor or Protege Under the SBAs Programs – Ambi Biggs – Set-Aside Alert
Does Sarbanes-Oxley Apply to Government Contractors?
By Michael A. de Gennaro Certain government contracts contain representations and warranties which require primes and subs to “comply with all applicable provisions of the Sarbanes-Oxley Act (“SOX”).” Several times, clients have asked which SOX provisions specifically apply to them, and this article will answer that question on a high level. As a threshold matter, we must clarify a common misconception about SOX. Enacted in 2002, SOX is often thought to apply only to publicly-traded companies, but that is not . . . Read More
Proposed Changes to FAR to Clarify Requirements for 8(a) Sole Source Contract Justification Over $22 Million
By Megan Connor On November 15, 2016, the DOD, GSA, and NASA issued a proposed rule to amend the FAR to clarify guidance for justifications of sole source 8(a) contract awards exceeding $22 million. This proposed rule responds to recommendations made by the Government Accountability Office (“GAO”) in its report, “Slow Start to Implementation of Justifications for 8(a) Sole-Source Contracts” ( GAO-13-118 ). The GAO report focuses on the revisions made to the FAR to implement section 811 of the National Defense Authorization . . . Read More
The Weekly Update for November 14, 2016
DEPARTMENT OF DEFENSE Revised Interim Implementation of Government-wide Guidance for Grants and Cooperative Agreements The DOD has issued a notice of proposed rulemaking (“NPRM”), the first in a sequence of six NPRMs, which collectively establish, for DOD grants and cooperative agreements, an updated interim implementation of government-wide guidance on administrative requirements, cost principles, and audit requirements for federal awards. This NPRM removes a part of the DOD Grant and Agreement Regulations (“DODGARs”) and replaces it with a new DODGARs part . . . Read More
Court enjoins DOL Overtime Rule Implementation: December 1 Effective Date – No Longer Valid
Client Alert On November 22, just a few days before its December 1 implementation date, a Texas court issued a nationwide preliminary injunction stopping implementation of the Department of Labor’s (DOL) rule to more than double the current salary threshold for certain exemptions from overtime pay. Twenty-one states, the U.S. Chamber of Commerce, and other business groups filed lawsuits, later consolidated into one, arguing that the DOL exceeded its statutory authority in raising the salary threshold and by providing for . . . Read More
The Firm Fixed Price Profits Reduction Clause: Government Takes All the Benefits and None of the Risk?
It has been well understood in the Federal Acquisition Regulation (“FAR”), and in government contracting generally, that different contract types balance the risks and rewards so as to ensure both the government and the contractor share in the risk. In Firm Fixed Price (“FFP”) contracts, the contractor takes on the risk of any cost overruns, while it can benefit from reduced costs to take home more profits. With cost reimbursable contracts, the government gains the benefit of cost underruns but . . . Read More
Judge v. Jury – Considerations for the Corporate Litigant When Making that Important Decision
The Seventh Amendment to the U. S. Constitution guarantees the right to a trial by jury in most federal court civil cases involving money damages. And while the constitution does not extend this right to the states, most have laws or constitutional provisions preserving the right to trial by jury in civil matters that exceed a threshold monetary amount. When a company is suing, or has been sued, for money damages, the important question of whether to have the case . . . Read More
Office of Management and Budget ( OMB ) Circular A-xxx
Includes our comments on : Aspects of the Circular Require Clarification We recognize that OFPP sees a value in Category Management and intends to institutionalize Category Management principles across the Government. However, clarification of the Government’s approach, as set forth in the proposed Circular, is needed. Consideration of Small Businesses Should Be Required More consideration of small businesses is needed. BIC Sourcing Solutions Must Be Readily Attainable The Circular does not address how competitions for BIC preferred and BIC mandatory . . . Read More
The Weekly Update for November 4, 2016
DEPARTMENT OF DEFENSE Withholding of Unclassified Technical Data and Technology from Public Disclosure The Department of Defense (“DOD”) Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics has proposed a rule that establishes policy, assigns responsibilities, and prescribes procedures for the dissemination and withholding of certain unclassified technical data and technology subject to the International Traffic in Arms Regulations and Export Administration Regulations. It applies to DOD components, their contractors and grantees, and is meant to control . . . Read More
Proposed Circular Could Change the Way the Government Procures Common Goods and Services
By Michelle Litteken On October 7, 2016, the Office of Management and Budget (“OMB”) issued Proposed OMB Circular No. A-XXX, Implementing Category Management for Common Goods and Services . If implemented, the proposed Circular could dramatically change the way the fovernment purchases common goods and services. The Circular defines “common goods and services” as “those items and services that all or most federal agencies procure and are not unique to the mission of an individual agency.” Common goods and services are interchangeable and are usually commercially available. In FY 2015, the government spent . . . Read More