BLOG: Thinking of Forming a Mentor-Protégé Joint Venture? Timing Matters
If you are thinking of forming a mentor-protégé joint venture to pursue a particular set-aside contract, it is critical that your timing has enough built-in cushion to ensure that all of the necessary approvals and entity-formation steps are accomplished before you submit your proposal. There is a fairly rigid sequencing of the steps involved in putting together the mentor-protégé application and subsequent joint venture agreement—make sure you do not fall into the trap of skipping a step, or otherwise you may put . . . Read More
BLOG: The Relationship Between Privacy and Trust
Recently, there has been an advertisement running during March Madness from Apple that is all about privacy. If your household has been watching as much college basketball as mine has, then you’ve likely seen it. It’s a minute full of real-world examples of how people value their personal privacy. None of those examples are particularly significant but, in the aggregate, it shows that this remains an issue that people are deeply concerned about. That concern, of course, is then applied . . . Read More
BLOG: Could You Be the Target of a Government Claim?
Most contractors know that they may submit a claim under the Contract Disputes Act (CDA) if a problem arises during performance. However, many contractors are not aware that the government also has the ability to bring a claim. Likewise, contractors may not understand the options for responding to a government claim. Given the potential gravity of a government claim, these are issues contractors should be aware of. To begin, you may be wondering what types of claims the government may bring. . . . Read More
Following COFC Decision, GSA Rescinds Alliant 2 Small Business Awards
On March 26, 2019, the General Services Administration (“GSA”) posted a notice on FedBizOpps that it was taking corrective action in response to the recent Court of Federal Claims (“COFC”) decision in the bid protest of Citizant, Inc. v. United States, No. 18-856C (Mar. 25, 2019). As part of that corrective action, GSA rescinded all 81 of the Alliant 2 Small Business (“A2SB”) contracts it awarded in February 2018. A2SB, issued under Solicitation No. QTA0016GBA0002 in June 2016, is a governmentwide . . . Read More
DoD Proposes to Apply Non-Manufacturer Rule to All 8(a) Contracts
Nearly three years ago, the U.S. Small Business Administration (“SBA”) issued a final rule that standardized the limitations on subcontracting and the non-manufacturer rule (“NMR”) that apply to small business concerns, including participants in SBA’s 8(a) Business Development Program. In a step toward regulatory conformity, the Department of Defense (“DoD”) is now proposing to implement the revised NMR for 8(a) participants that contract with DoD. These entities should familiarize themselves with the proposed rule (“Rule”), which is summarized below. As a brief background, the . . . Read More
OFCCP Investigations on the Rise: How Should You Prepare?
The number of Office of Federal Contract Compliance Programs (OFCCP) investigations is on the rise, and OFCCP has stated a continued focus on enforcement. OFCCP enforces the contractual promise of equal employment opportunity and affirmative action required of those that do business with the federal government. Between fiscal years 2015–2017, the OFCCP received an average of 648 complaints annually. However, in fiscal year 2018, this number more than doubled, jumping to 1,418 complaints received. And, in the first quarter of . . . Read More
Does SBA’s New Recertification Rule Apply to My Contract? Recent OHA Decision Provides Some Clarity
The U.S. Small Business Administration’s (“SBA”) regulations require a concern to recertify its socio-economic (e.g., SDVO SBC, HUBZone, WOSB/EDWOSB) and/or small business size status (1) within 30 days of an approved contract novation; (2) within 30 days of a transaction becoming final in the case of a merger, sale, or acquisition, where contract novation is not required; and (3) no more than 120 days prior to the end of the fifth year of a contract exceeding five years in duration . . . Read More
GAO Finds That Federal Agencies Have Made Few SBIR Awards to Small Businesses Majority-Owned by Multiple Venture Capital Operating Companies, Hedge Funds, or Private Equity Firms
The purposes of the Small Business Innovation Research (“SBIR”) program include, among other things, the use of small businesses to meet federally funded R&D needs and the fostering and encouragement of participation by SDBs and WOSBs in technological innovation. Federal agencies with obligations of more than $100 million for extramural R&D activities (that is, R&D conducted by non-federal employees outside of federal facilities) must establish an SBIR program and are required to spend a percentage of their extramural R&D obligations . . . Read More
Are You Complying with All Applicable Procurement Requirements?
Entering into contracts with the federal government requires contractors to comply with a significant number of requirements, including statutory, regulatory, and contractual requirements. And, under the False Claims Act, the penalties for failing to comply with those requirements can be steep. In fiscal year 2018, there was a total of $2.88 billion in settlements and judgments in False Claims Act cases. That $2.88 billion includes settlements and judgments for procurement-related fraud cases brought under the False Claims Act. Most contractors . . . Read More
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