BLOG: COVID-19 and Material Adverse Effect Provisions in Acquisition Agreements
The coronavirus (COVID-19) continues to create extensive uncertainty for individuals and businesses. For parties actively pursuing an M&A transaction, COVID-19 presents the buyer and seller with additional risks both pre- and post-closing, including impacting the valuation of the target company, increasing exposure to liabilities relating to performance and payment obligations, expanding risk of claims from employees and other personnel, among other extraordinary risks that may result in delay or, in the worst cases, termination of the transaction. Traditionally, acquisition agreements include . . . Read More
BLOG: Raytheon Challenges CO Intellectual Property Decision in COFC
In a recent Court of Federal Claims (COFC) case, [1] Raytheon Corporation (Raytheon) challenged a federal agency order that a Government Purpose Right (GPR) legend be affixed to documents purportedly containing technical data. COFC held that the contracting officer’s (CO) decision that the documents contained technical data and the CO order to affix a GPR legend constituted a claim under COFC jurisdiction.This demonstrates that government contractors may challenge similar intellectual property disputes in COFC, despite an adverse final decision from a . . . Read More
BLOG: 4 Things to Know About DOJ’s Procurement Collusion Strike Force
The U.S. Department of Justice (DOJ) has been increasing scrutiny of anticompetitive conduct in public procurements over the past several years, and this trend is certain to continue in light of DOJ’s formation of a new Procurement Collusion Strike Force (PCSF), announced in November 2019. What should government contractors know about the PCSF? Here are four key takeaways regarding the PCSF’s activities to help government contractors understand and prepare for increased enforcement of antitrust laws. The PCSF is an interagency partnership across the . . . Read More
BLOG: Reselling Laptops and Tablets to the Federal Government Just Got Easier
The Small Business Administration (SBA) issued a class waiver of the non-manufacturer rule (NMR) on March 9, 2020. Effective April 8, 2020, it waives the NMR for commercially available off-the-shelf (COTS) laptop and tablet computers. The waiver is great news for small business resellers in the IT industry because the waiver will make it easier for these small businesses to comply with the NMR when reselling COTS laptops and tablets to federal agencies. For some background, the NMR is an exception to . . . Read More
BLOG: “Constructive Demotion” Claim Under Title VII Gains Traction in 4th Circuit District Courts
While the viability of a claim of “constructive demotion” under Title VII of the Civil Rights Act of 1964 (Title VII) has yet to be determined by the Fourth Circuit, a series of cases in district courts within the Circuit suggest that such might not be the case for long. In one such recent case, Judge Conrad of the U.S. District Court for the Western District of Virginia denied a defendant truck driver training company’s motion to dismiss a constructive . . . Read More
BLOG: Purchase Agreement Components, Part 1: Options for Forms of Purchase Price Consideration in Acquisition Agreements
Whenever parties enter into negotiations to buy and sell a target company, one of the first points of discussion is the purchase price. In particular, the purchase price discussion often reflects the amount of cash that will be paid by the buyer to the seller at closing, and, in fact, nearly all acquisitions involve cash as all or part of the purchase price consideration. However, a cash payment at closing is not the only type of consideration that is common . . . Read More
8(a) Contractors: To Suspend or Not Suspend In Light of COVID-19
If you are an 8(a) contractor, you may have received a notification from your Business Opportunity Specialist regarding a voluntary suspension due to the March 13, 2020 declaration of a national emergency concerning the COVID-19 outbreak. Covered below are considerations for 8(a) government contractors before they decide to suspend or not to suspend their participation in the 8(a) program. SBA regulations provide a process by which 8(a) contractors may voluntarily elect to suspend their participation in the 8(a) program for . . . Read More
BLOG: COVID-19 and Its Effects on Credit Facilities
With the spread of COVID-19, businesses all over the world have seen their operations affected and their cash flow and production decreased, putting them at risk for potential default on their credit obligations. The prediction is that the global economy will enter into a recession, which will continue to affect the financial situation of millions of businesses. All businesses should consider the available options to remedy any borrowing deficits in light of specific circumstances. When providing financing for business enterprises . . . Read More
BIA to Establish Procedures for Federally Recognizing Alaskan Tribes
On January 2, 2020, the Bureau of Indian Affairs (BIA) issued a proposed rule to create a new 25 Code of Federal Regulations (CFR) part 82 that would establish procedures for a non-federally recognized Alaska Native entity to be acknowledged as an Indian tribe by the federal government. This regulation is the first to establish a process for Alaska Native entities to be federally recognized as a tribe since the Alaska Amendment of the Indian Reorganization Act (IRA) was enacted in 1936. . . . Read More
BLOG: JEDI Protest Update: Pentagon Relies on Blue & Gold Fleet to Do Away with AWS’s Allegations of Bias
Oftentimes, a decision not to file a pre-award protest can leave an unsuccessful offeror without an opportunity to be heard at the Court of Federal Claims (COFC). However, the extraordinary circumstances surrounding the JEDI Contract and the Trump Administration’s ongoing, publicized aversion to Amazon could save Amazon Web Service’s (AWS) bias allegations against the Pentagon from an early dismissal. Since filing its protest with the COFC in November 2019, AWS has continued its aggressive attack on the Pentagon’s decision to . . . Read More