DOD Extends Section 889 Waiver to September 30, 2022
In August, we wrote about a memorandum issued by Director of National Intelligence John Ratcliffe that waived the Department of Defense’s (DOD) requirements under Section 889 of the National Defense Authorization Act for Fiscal Year 2019. The Federal Register published an interim rule on July 14, 2020, that implemented Section 889, which prohibits agencies from procuring telecommunications equipment and services from Huawei Technologies Company, Hangzhou Hikvision Digital Technology Company, Hytera Communications Company, Dahua Technology Company, and ZTE Corporation. The DOD originally released a memorandum on July . . . Read More
False Claims Act Considerations for PPP Loan Forgiveness Applications
The Paycheck Protection Program (PPP) created through the Coronavirus Aid, Relief, and Economic Security (CARES) Act offered much-needed financial relief to businesses directly impacted by the COVID-19 pandemic. Through the program, eligible businesses could obtain a loan designed to keep employees on the company payroll, even when company revenues were impacted by stay-at-home and social distancing orders. And, in many cases, PPP loans are eligible for total forgiveness, saving companies from the additional financial burden of paying back an often . . . Read More
Important Considerations When Structuring M&A Transactions for Government Contractors: Post-Transaction Pitfalls—Part 3 of a 3-Part Series
M&A transactions involving government contractors are subject to a host of regulatory and industry-specific considerations. This blog series covers key concerns that can impact a deal. Parts 1 and 2 focus on common problems that arise before and during a transaction. They are available here and here . Below we drill down on post-transaction pitfalls in government contractor M&A transactions that can jeopardize the value of the target company. Security Clearances Many contracts require a company to maintain a facility security clearance. . . . Read More
SBA Adopts Critical Rule Change on Small Business Recertification: Tweaking Its “Technical Correction”
As we recently highlighted , on October 16, 2020, the U.S. Small Business Administration (SBA) enacted a final rule (Rule) that merges the 8(a) Business Development Mentor-Protégé Program and the All Small Mentor-Protégé Program and makes a number of other significant changes that impact the small business contracting community. One modifies SBA’s recertification rules and will directly affect a contractor’s ability to pursue options and orders set aside under pre-existing contracts. SBA’s regulations require a concern to recertify its small business size / socio-economic . . . Read More
8 Tips to Manage Risks in Healthcare Transactions
In a typical investment or acquisition, the buyer conducts due diligence of the target company. Due diligence involves extensive review of the target company’s history, finances, and operations, including its contracts, customer and supplier relationships, and employees, to understand the risks and opportunities associated with the investment or acquisition. Healthcare companies have their own unique requirements and structures, so a buyer’s due diligence must consider and thoroughly evaluate these additional factors to mitigate the buyer’s risk post-closing. Professional Corporations and . . . Read More
WOSB Certification Required Beginning October 15 – Are You Ready?
As a reminder, beginning on October 15, 2020, all women-owned small businesses (WOSBs) and economically disadvantaged women-owned small businesses (EDWOSBs) pursuing WOSB/EDWOSB set-asides, as well as solicitations with pools reserved for WOSBs/EDWOSBs, must be certified as a WOSB/EDWOSB, either by SBA or a third-party certifier. The application for certification by SBA is free and may be completed at beta.certify.sba.gov . Beginning October 15, if you have not completed the certification application, this will impact your ability to bid on WOSB/EDWOSB set-aside . . . Read More
Emergency Sick Leave Policy: Top 5 Measures to Defend Against a DOL Investigation
Companies across the country are still struggling to understand and implement the emergency sick and family leave imposed by the Families First Coronavirus Response Act (FFCRA). The U.S. Department of Labor’s Wage and Hour Division (DOL), responsible for enforcing the provisions, initially provided a grace period to employers to come into compliance, but that time has passed and DOL is now investigating complaints of noncompliance. By way of example, Nicholas Security Commercial LLC, a Georgia-based home security company, was found . . . Read More
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