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 As part of that corrective action, GSA rescinded all 81 of the Alliant 2 Small Business (“A2SB”) contracts it awarded in February 2018.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
Cybersecurity’s Increasing Impact on Prime Contract and Subcontract Awards
Since last year, I have been writing about the increasing impact of cybersecurity on contract awards. DoD has issued guidance on how it will evaluate system security plans, and it has indicated that, along with cost, schedule, and performance, cybersecurity is the “ fourth pillar ” of its acquisitions. As a result, contractors need to shift their view of cybersecurity compliance as a cost center to a business driver and an increasingly important factor in gaining a competitive advantage. The momentum has continued . . . 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
Fourth Circuit Makes It Harder for Whistleblowers in FCA Cases
In a relatively recent decision, the U. S. Court of Appeals for the Fourth Circuit raised the bar a notch for whistleblowers in False Claim Act (“FCA”) cases whose allegations lack specificity as to direct evidence of presentment for payment to the government for fraudulent services. Indeed, in her dissenting opinion in U.S. ex rel. David Grant v. United Airlines, Inc., No. 17-2151 (4th Cir. 2018), Judge Keenan opined that this ruling, affirming the dismissal of the claim at the pre-discovery . . . Read More
Misclassifying Employees Can Have Major Consequences
Today’s economy is saturated with new ways to earn money without being subject to a set schedule or traditional employer demands. With so many individuals working part-time jobs with more autonomy than ever, companies are struggling to determine whether to classify those workers as independent contractors or employees. The distinction between those two categories is extremely important and can affect all aspects of your business, including benefits, overtime pay, and workers’ compensation. While determining employee classification is a fact-intensive process, . . . 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
Buyer Beware: Outsourcing Labor Puts You at Risk of Prevailing Wage Violations
Recently, a Department of Labor (DOL) investigation found that four federal contractors were responsible for paying 53 current and former employees a total of $255,474 for violating the Davis-Bacon and Related Acts (DBRA). DOL determined the contractors failed to pay the correct prevailing wages and fringe benefits. In this case, the prime contractor subcontracted with a temporary staffing company that failed to pay cleaning service crews in accordance with DBRA requirements. The temporary employees were misclassified and not paid the . . . Read More