Is Your Arbitration Clause Leaving You Exposed?: 3 Ways to Protect Yourself
Arbitration clauses are included in many commercial contracts, particularly in government subcontracts. We often see arbitration clauses as tools to limit the parties’ exposure to protracted litigation if a dispute arises under the contract. Maryland, among many other state and federal courts, has an extremely strong public policy of favoring the enforcement of arbitration agreements. The Maryland Court of Appeals has explained that the “public policy favoring such agreements is understandable, as arbitration agreements are generally a less expensive and . . . Read More
SBA Issues Guidance for PPP Lenders on Required Consents for Change in Ownership of PPP Borrowers
On Friday, October 2, the U.S. Small Business Administration (SBA) issued guidance for lenders administering loans under the Paycheck Protection Program (PPP) regarding what involvement by the SBA (if any) is required when a PPP borrower undergoes a transaction resulting in a change in ownership. This guidance addresses several questions with which PPP borrowers and lenders have been struggling over the past several weeks and provides clarity around what the expectations are for when SBA consent is required and what . . . Read More
BLOG: Important Considerations When Structuring M&A Transactions for Government Contractors: OCI, Reps and Warranties, and Assignment of Receivables Part 2 of a 3-Part Series
Our three-part series on government contractor M&A transactions provides an overview of key regulatory and industry-specific considerations that can impact all aspects of a deal. Part 1 is available here . It covers pre-transaction novation and affiliation issues. In Part 2, we move onto the transaction itself, diving into the potential for organizational conflicts of interest (OCI), regulatory compliance concerns, and the assignment of receivable rights. If ignored, these can impede the achievement of business objectives and lower the value of . . . Read More
BLOG: 5 Things to Know When Protesting an Award
The end-of-fiscal-year spending spike has federal agencies issuing more notices of award, leaving many disappointed offerors keen to file protests. Post-award protests are subject to strict timelines, so you need a plan if you receive an unfavorable notice of award. Below are 5 key things government contractors need to know when protesting an award. Ask yourself whether you have grounds to file a size protest or a bid protest. Generally, the strongest protest grounds pertain to: evaluation that is inconsistent . . . Read More
OFCCP Audits Are Coming: 6 Tips to Help You Prepare
The Office of Federal Contract Compliance Programs (OFCCP) just released its FY 2020 lists of Supply & Service and Construction contractors the agency expects to audit (see FY 2020 CSAL Supply & Service and FY 2020 CSAL Construction ). With enforcement a primary goal of OFCCP, preparing for an audit is key. If your company is on the list, PilieroMazza’s Labor & Employment team suggests you follow these 6 tips to properly prepare for an OFCCP audit to avoid potential penalties and possible loss of your government contract. Also, join . . . Read More
Court Vacates Key Parts of DOL “Joint Employer” Rule Months After Implementing
On September 8, 2020, the Southern District of New York struck down a recent Department of Labor (DOL) final rule that changed the standard of joint employment under the Fair Labor Standards Act (FLSA). The court determined that the rule conflicted with the FLSA and that the DOL did not properly justify the new change in policy. This decision will expose more companies to potential liability under the FLSA and increase the number of businesses that qualify as joint employers, such as those who . . . Read More
New Minimum Wage Requirements for Government Contractors May Impact Price Adjustments
Effective January 1, 2021, the Executive Order (the Order) minimum wage rate that generally must be paid to workers performing work on or in connection with covered government contracts will increase to $10.95 per hour, while the required minimum cash wage that generally must be paid to tipped employees performing work on or in connection with covered contracts will increase to $7.65 per hour. Each year, the Department of Labor (DOL) assesses the established minimum wage and, using determined methodology, announces an . . . Read More
BLOG: Healthcare Blog Series: An Introduction to the Anti-Kickback Statute and Stark Law
***This is the first installment in a blog series focusing on the regulatory environment and key concerns for persons or businesses operating in the healthcare industry.*** One of the major differences between the healthcare industry and other business sectors is federal regulations covering the inducement of business through referrals with financial incentives. While it may be permissible, and even common, in many industries to obtain business through financial incentive referrals, such arrangements are impermissible when the transaction involves goods or . . . Read More
FAR Council Issues New Interim Rule on Section 889 Prohibitions on Using Chinese Telecommunications and Video Surveillance Equipment
If you have not viewed PilieroMazza’s prior client alert and webinar on the implications of the new prohibition on the use of certain Chinese telecommunications and video surveillance equipment, we highly recommend you do so before reading this article as it will provide helpful background and information which we will not rehash in this article. You can find that content here and here , respectively. The FAR Council released a new interim rule , effective October 26, 2020, allowing federal contractors who already certified in . . . Read More
Certain SBA Loan Review Decisions Under Paycheck Protection Program Appealable
Millions of small businesses applied for and received loans under the Paycheck Protection Program (PPP), which was a temporary program established under the CARES Act enacted by Congress to provide relief to America’s small businesses due to the devastating effects of COVID-19. But some businesses were denied loans and others are seeking forgiveness, only to find that they were deemed ineligible for full or partial forgiveness. A new rule may provide small businesses with options to appeal these decisions. An . . . Read More