Court Grants Challenge to Agency’s Corrective Action in Response to Protest
By Julia Di Vito A recent court decision may provide other disappointed offerors a pathway for challenging agencies’ corrective action that unreasonably favors the original contract awardee. In Professional Service Industries, Inc. v. U.S., — Fed. Cl. —, No. 16-1038C (2016), the U.S. Court of Federal Claims recently granted a bid protest of the Federal Highway Administration’s (“FHWA”) corrective action taken in response to a disappointed offeror’s protests at the Government Accountability Office (“GAO”). In granting this protest, the Court found . . . Read More
The HUBZone Price Preference Provides a Benefit to Contractors– but at a Price
The Historically Underutilized Business Zone (“HUBZone”) Act, 15 U.S.C. § 675a, sets forth three ways in which contracting agencies may provide contracting assistance to HUBZone contractors. The contracting agency may award contracts to HUBZone contractors on a sole source basis or they may restrict competition to just HUBZone contractors. In addition, on contracts to be awarded under full and open competition, contracting officers are to give a price preference to the prices offered by HUBZone contractors. The HUBZone Act states . . . Read More
Investing in Small Businesses Through SBA’s SBIC Program
We work with many firms that have or would like to invest in small businesses. One of the biggest issues for an investor in a small business is the potential that the investment will create an affiliation between the investor and the small business. An “affiliation” under SBA’s rules can cause the small business to lose its small business status. For example, to protect its investment, the investor may require certain protections or veto rights over the day-to-day operations of . . . Read More
How to Succeed Under SBA’s New Mentor-Protege Program
By Katie Flood and Megan Connor As of November 1st, SBA’s certify.sba.gov portal is operational and accepting applications for the new Small Business Mentor-Protégé program. By now, you’ve heard of the program and are considering its potential value for your business. However, there are a few key things you should consider before submitting your application, in order to best situate you and your potential partner for SBA approval and to maximize your success under the program. First, it is critical that . . . Read More
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
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
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