Coming Soon to a FAR Near You: Cybersecurity Requirements
There are a growing number of cybersecurity requirements applicable to government contractors that work with the Department of Defense (DoD) and intelligence community. Thanks in part to a number of recent, high-profile cyber attacks, the laws and regulations governing cybersecurity will surely expand further. Indeed, President Obama mentioned cybersecurity in his 2015 State of the Union address, around the same time several new or rehashed legislative proposals were issued. These laws and regulations are designed to impose requirements on contractors . . . Read More
How Much U.S. Work Is Needed for the Small Business Set-Aside Rules To Apply?
By Kimi Murakami In a decision issued last year, the GAO denied the protest of Maersk Line, Limited, of Norfolk, Virginia (“Maersk”), a large business, which challenged the decision of the Department of the Navy, Military Sealift Command (“MSC”) to conduct the procurement for cargo transportation services in accordance with the small business set-aside requirements of the Federal Acquisition Regulation (“FAR”) Part 19. Maersk Line, Limited, B-410280 (December 1, 2014). Maersk argued that the agency erroneously applied the set-aside rules . . . Read More
DOD Seeks to End the 25-Year “Pilot” Status of the DoD Mentor-Protégé Program
By Alex Levine The U.S. Department of Defense (“DoD”) recently announced its intent to request a 10-year extension of its mentor-protégé program. The move is a bid to add more permanence to a program, since its advent in 1991 has been labelled a pilot program that must be reauthorized in a National Defense Authorization Act every few years. The DoD hopes that the move will encourage participation amongst businesses, participation which the DoD asserts has been “chilled” due to the . . . Read More
Organizations Urge SBA to Expedite WOSB Sole Source
By Megan Connor As we explained in a previous blog post , Section 825 of the National Defense Authorization Act for FY 2015 creates sole source authority for participants in the Woman-Owned Small Business (“WOSB”) Program. Additionally, Section 825 seemingly eliminates WOSB self-certification. Because these are two major developments in the WOSB Program, it could take considerable time for the SBA to issue its proposed rulemaking. Therefore, 24 organizations are urging the SBA to move on the sole source authority quickly and then . . . Read More
A Win for Employers Enforcing Restrictive Covenants in Virginia
By Julia Di Vito The enforceability of a restrictive covenant in an employment agreement, including a non-competition, non-solicitation, or non-disclosure provision, depends greatly on the state in which the covenant is to be enforced. In Virginia, courts will not “blue pencil” or modify restrictive covenants, and thus if the restrictive covenant is unenforceable as written, then a court will not enforce it at all. Other states are more flexible and will enforce restrictive covenants to the extent they are reasonable. . . . Read More
Yet Another Recertification Rule
On December 29, 2014, the Small Business Administration (“SBA”) issued a proposed rule to implement the subcontracting limitation requirements mandated by the National Defense Authorization Act of 2013. Buried therein was a new proposed regulation with regard to recertification of size prior to a contract award. Under this new, proposed size recertification rule, firms that are bidding on small business set-aside contracts will need to recertify their size prior to an award if they engage in a merger and/or an . . . Read More
When Should you File a Contract Disputes Act Claim?
By Julia Di Vito Under the Contract Disputes Act (“CDA”), a contractor must submit a claim within six years of accrual of the claim. A claim is simply a written demand for payment directed to the contracting officer (“CO”) that indicates that it is requesting a final decision. Although six years seems like more than enough time to submit a claim, it is best to not take that time period for granted. Determining when a claim actually accrues can pose . . . Read More
The “Rule of Two” For Orders Placed Against Multiple Award Contracts: The Other Shoe Has Dropped
As many of you may recall, Congress passed the Small Business Jobs Act (“Act”), in July 2010. The purpose of the Act was to ameliorate the effects of the 2008 financial crisis and subsequent recession. Although the Act expanded opportunities for small business there were, nonetheless, some provisions which, in fact, made doing business with the Government somewhat more difficult for small business contractors. In particular, Section 1331 of the Act mandated the Office of Federal Procurement Policy (“OFPP”) and . . . Read More
In a Business Owners Agreement, Should All Owners Be Equal?
Good business planning involves owners of the company developing and entering into a shareholders agreement, operating agreement or partnership agreement (owners agreement). A good owners agreement will allow the owners to plan and prepare upfront for disruptive events in the company’s business life cycle, whether good or bad. And, as part of putting together an owners’ agreement, one of the fundamental questions owners need to resolve is whether all owners should have equal rights. The answer is it depends—in some . . . Read More
GAO and COFC Task Order Jurisdiction – To Count or Not To Count Option Periods
Jurisdiction of the GAO and the Court of Federal Claims to hear task order protests is limited to protest of awards over $10 million. How one defines whether a task order is over or under the $10 million threshold is subject to interpretation. The latest question presented in a GAO protest was a solicitation requirement to evaluate a priced based on “all options,” including the 6-month option to extend services under FAR 52.217-8. There are a number of cases stating . . . Read More