“Fair Pay” Rules Just Aren’t Fair
Women Impacting Public Policy (WIPP) recently submitted comments on proposed regulations that would require federal contractors to disclose labor violations from the past three years. This blog accompanies those comments as a summary of WIPP’s position. For more details or if this impacts your business, I encourage you to read the full comment here . Last summer, President Obama issued an Executive Order with the goal of barring bad companies from winning federal contracts. WIPP, along with most in the contracting community, agrees . . . Read More
A Refresher on the Non-Manufacturer Rule
By Katie Flood Unless you are a small business regularly engaged in selling supplies to the U.S. Government, you may have only a passing familiarity with the requirements of the Non-Manufacturer Rule (NMR). The NMR is an exception to the usual requirement that contractors supplying goods to the government perform at least 50 percent of the cost of manufacturing the items. A manufacturer is a business concern that, with its own facilities, performs primary activities in transforming organic or inorganic . . . Read More
“March-in” Rights – The (Paper) Damoclean Sword of Federal Procurement Patent Law
Given the recent PilieroMazza webinar on Data Rights in federal contracting , we have had a number of clients raise concerns or questions about the government’s “march-in” rights under the Bayh-Dole Act, which controls certain data rights and patent issues under federal contracts. For those of you who do not already know, for patentable items created under federally-funded contracts, the government has the right to force the contractor who holds the patent to issue a license to third parties, including competitors, under certain conditions. As we will see, . . . Read More
Not So Far Out: OMB Memo Indicates Cybersecurity FAR Clauses Are Coming Soon
On August 11, 2015, the Office of Management and Budget (“OMB”) released a draft policy memo entitled “Improving Cybersecurity Protections in Federal Acquisitions.” The purpose of the memo is to provide federal agencies with guidance to implement stronger cybersecurity protections in federal acquisitions for products or services that generate, collect, maintain, disseminate, store, or provide access to Controlled Unclassified Information (“CUI”). OMB is seeking public comments and suggested revisions by September 10, 2015, and expects to issue the final guidance . . . Read More
Letter of Intent: A Seller’s Friend or Foe?
For a business owner, the sale of the company is the final act in the life cycle of the company (TargetCo). It represents the business owner’s opportunity to cash out on and be rewarded for his or her vision, ingenuity, years of hard work, sacrifice and risk-taking. Typically, after some confidential discussions and limited sharing of a TargetCo’s financial and non-financial information, a critical, next step in the sale process is negotiating and entering into a letter of intent (LOI) . . . Read More
No Longer on Hold: SBA Resumes 7(a) Lending to Small Businesses
The 7(a) lending program is back on track. Last month, President Obama signed into law a bill that would raise the SBA’s lending authorization ceiling to $23.5 billion for its flagship lending program. With the bill’s signing, the SBA resumed loan approvals and small businesses are again able to get loans backed by the federal government. On July 23, 2015—just a few days before the president put pen to paper—the SBA maxed out its $18.75 billion lending limit for small . . . Read More
Government Contractors Beware: Trying to Fit A Square Peg into A Round Hole
By Kimi Murakami What may be standard in the corporate world can severely disrupt set-aside status in the highly-regulated government contract space. Take the recently-decided case of Precise Systems. This decision presents another cautionary tale of why it is so critical for contractors to understand the SBA rules–or to talk to lawyers who do–before entering into corporate restructuring transactions. In the final decision issued by Chief Judge Patricia Campbell-Smith in the case of Precise Systems, Inc. v. U.S., No. 14-1174C (Fed. Cl., . . . Read More
Ninth Circuit Eases Ability for Whistleblowers to Bring Qui Tam Actions
In an important development under False Claims Act (“FCA”) case law, the U.S. Court of Appeals for the Ninth Circuit has expressly abrogated former precedent limiting the ability of whistleblowers to recover funds reimbursed to the Federal Government under the FCA to a greater degree than in many other circuits. The case is United States ex rel. Hartpence v. Kinetic Concepts, Inc., No. 12-55386 (9th Cir. July 7, 2015). Generally, the FCA prohibits the knowing submission to the Federal Government . . . Read More
A Look At The Numbers: 2015 Government Contracting Annual Report
Some very interesting data, trends, and analysis of government contracting, which should be of interest to government contractors, was published in a recent report by the National Contract Management Association (NCMA) and Bloomberg Government (Bloomberg). Some of the data should come as no surprise to firms seeing how U.S. government contracting dollars continue to be declining. According to the report, titled “Annual Review of Government Contracting, 2015 Edition,” contract spending will likely continue to fall due to budget caps and the . . . Read More
The Importance of Preservation of Electronically Stored Information in Contract Disputes
Contract disputes, whether over performance, payment or interpretation of terms, are an inevitability of doing business and, in an ideal world, when they arise they would all be resolved through compromise and agreement. But we do not live in an ideal world, and contract litigation appears to be on the uptick as the economy improves. Whereas in the “old days” the largest part of your contract file might have been taken up by the contract itself, the Information Age has . . . Read More