Small Business Subcontractor Recertifications
I spoke at the TRI-Association Small Business Advisory Panel (TRIAD) Winter Meeting a couple weeks ago in Nashville, and a number of attendees asked me questions about how often a large prime contractor must require its small business subcontractors to recertify size/status during the term of a subcontract. SBA’s regulations and the FAR indicate that a subcontractor’s status for a particular subcontract is established at the time the subcontractor submits its offer for the subcontract, and a prime contractor may . . . Read More
Legal Advisor Newsletter – First Quarter 2019
Introducing PilieroMazza’s Cybersecurity and Data Privacy Practice Managing Cyber Risks in M&A Transactions Hackers Are No Match for Employee Missteps When Hackers Attack: Disclosure Obligations and Litigation Risks When You Suffer a Data Breach Data Breaches and Date Rights: How the Rights of You and Your Customers Are Impacted
TINA Traps: Defective Pricing in Competitively Awarded IDIQ Contracts
While there has been extensive coverage of the fact that Truth in Negotiations Act (“TINA”) thresholds for DoD were increased from $750,000 to $2M and certain civilian agencies have adopted the thresholds either via a FAR deviation or on an ad hoc basis, we have seen an increase in clients falling into insidious TINA traps—task orders on competitively awarded IDIQ contracts that require new labor categories or requirements not contemplated under the initial RFP. Specifically, we have seen instances where the agency . . . Read More
Subcontract Language Controls, Even When It May Not Be Fair
The language you choose to put in your subcontract matters, even if you do not understand it or applying that language might end in an unfair result. The Ninth Circuit Court of Appeals drove this point home recently in Aspic Engineering and Construction Company v. ECC Centcom Constructors, LLC. In Aspic, a contractor, ECC, was awarded two prime contracts by the U.S. Army Corps of Engineers for the construction of various buildings in Afghanistan. Aspic, an Afghani company alleged to be unfamiliar . . . Read More
Comments Submitted in Response to RIN 9000-AN35: Revision of Limitations on Subcontracting
On February 4, 2019, PilieroMazza submitted comments on RIN 3245-AG86, Proposed Rule National Defense Authorization Acts of 2016 and 2017, Recovery Improvements for Small Entities After Disaster Act of 2015, and Other Small Business Government Contracting. Includes our comments on: We Support the FAR Council’s Revisions to FAR 52.219-4, But This Clause Requires Further Modifications to Align with SBA’s Limitations on Subcontracting Rules for HUBZone Joint Ventures The FAR Council Should Propose Revisions to the HUBZone Price Evaluation Preference Clause . . . Read More
Comments Submitted in Response to RIN 3245-AG86—Proposed Rule on Small Business Government Contracting
On February 4, 2019, PilieroMazza submitted comments on RIN 3245-AG86, Proposed Rule National Defense Authorization Acts of 2016 and 2017, Recovery Improvements for Small Entities After Disaster Act of 2015, and Other Small Business Government Contracting. Includes our comments on: SBA’s Proposed Changes About Subcontracting Plans Provide Necessary Clarification SBA’s Contracting Preferences for Small Businesses in Disaster Areas Are Welcome SBA’s Clarification Regarding the Nonmanufacturer Rule and Information Technology Value Added Resellers Is Beneficial Setting Aside an Order Under a Multiple-Award . . . Read More
In the Weeds: Testing Federal Contractor Employees for Marijuana Use
Consider the following scenario: Janie is employed as a help desk clerk to perform work on a federal government contract and is a model employee. She has a perfect attendance record, performs her job responsibilities with enthusiasm, and is always a team player. Pursuant to company policy, one day Janie is subjected to a random drug test. The results show she tested positive for THC, consistent with the use of marijuana. What options does her employer have? As a government . . . Read More
The Contracting Officer Denied My Claim: Is It Time to Appeal?
The Contract Disputes Act (“CDA”) was intended to provide a straightforward process for contractors to resolve disputes that occur under a government contract. In short, a contractor may initiate a dispute by submitting a claim to the contracting officer. The contracting officer then issues a final decision, and if the contractor disagrees, it may appeal to a board of contract appeals within 90 days or to the U.S. Court of Federal Claims (“COFC”) within one year. Although this path seems . . . Read More
Not So Fast: Practical Considerations Before Novating Your GSA Schedule Contract
The acquisition market for federal contractors is booming. Acquisition can provide a buyer the opportunity to target its growth strategically by acquiring the seller’s past performance and experience, in addition to gaining the seller’s personnel and resources. Of course, part of what makes a seller attractive is the contracts found in its portfolio. While the government does not officially condone the “buying and selling” of federal contracts, a contract may be novated after an acquisition if the buyer has acquired . . . Read More
Comments Submitted in Response to RIN 2900-AQ24—VA Acquisition Regulation
On January 24, 2019, PilieroMazza submitted comments to the U.S. Department of Veterans Affairs in response to the proposed rule issued on November 29, 2018, RIN 2900-AQ24—VA Acquisition Regulation: Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace; Protection of Privacy and Freedom of Information; Other Socioeconomic Programs; and Contract Modifications. Includes our comments on: VAAR Part 826 Will Be Beneficial, But It Needs Further Clarification The VAAR Must Fully Implement the Vets Act Priority for . . . Read More