BLOG: Liquidated Damages Clauses: Important Considerations for Business Owners
When drafting or negotiating any contract, businesses should give careful consideration to avenues of recovery in the event of a breach by the other party. At times, this determination is straight-forward, such as where a party fails to pay amounts owed. But the analysis can become complicated in situations where damages aren’t readily quantifiable, such as where a trade secret is misappropriated or a former employee solicits a company client. To simplify such issues, businesses include liquidated damages provisions in . . . Read More
BLOG: Performance Anxiety: Five Questions from Government Contractors on Past Performance
A government contractor’s past performance can spell the difference between proposal rejection and contract award, and agencies are given broad discretion in how they evaluate past performance. It is critical that companies working with the federal government understand not only what steps they should take to utilize and cultivate positive past performance, but also the steps they should take to defend it. We recently gave a webinar on these topics and received several follow-up questions. Below we address the top . . . Read More
BLOG: SBA to Increase Enforcement in 2020 on Set-Asides and Subcontracting
One of the most overlooked compliance requirements for set-aside contracts are the limitations on subcontracting. Don’t take my word for it—GAO has noted in several reports that contracting officers generally do not monitor or enforce the requirement that the small business prime contractor must self-perform a certain percentage of the contract. The limitations on subcontracting requirements are critical to the efficacy of the small business programs. Indeed, the goals of the programs are not served if small businesses do not . . . Read More
BLOG: OFCCP Releases Technical Assistance Guide for Construction Contractors
In keeping with its commitment to offer more technical guidance for government contractors across all industries, the Office of Federal Contract Compliance Programs (OFCCP) recently published its Technical Assistance Guide (the Guide) for construction contractors. The OFCCP released the Guide as a self-assessment tool to help contractors review the equal employment opportunity practices they have in place. Using this tool, and fixing issues it might reveal, may help construction contractors avoid potential investigation and interruption to their business operations. For . . . Read More
SBA to Enact Significant Changes to Small Business Regulations Before 2020: Everything You Need to Know
On November 29, 2019, the U.S. Small Business Administration (“SBA”) issued a final rule (“Rule”) that will implement several provisions of the National Defense Authorization Acts (“NDAA”) of 2016 and 2017 and the Recovery Improvements for Small Entities After Disaster Act of 2015 (“RISE Act”), as well as other clarifying amendments. As we outlined nearly a year ago when the Rule was first proposed, these changes address key small business issues for government contractors, including: subcontracting plans, the non-manufacturer rule (“NMR”), Information Technology Value . . . Read More
BLOG: No More “Consent to Subcontract” for 8(a) Firms
Firms that participate in the U.S. Small Business Administration (“SBA”) 8(a) program operate in a highly regulated environment. For years, 8(a) firms were required to seek approval, or “consent to subcontract,” from contracting officers and SBA to subcontract work on an 8(a) contract. In September, with little fanfare, the Federal Acquisition Regulatory Council removed the consent-to-subcontract requirement from two Federal Acquisition Regulation (“FAR”) clauses (FAR 52.219-12 and 52.219-17), which are supposed to be incorporated in all 8(a) contracts. According to . . . Read More
BLOG: Turning Compliance Into a Competitive Edge: Cybersecurity Maturity Model Certification (CMMC) Levels 1 – 3 Update
PilieroMazza previously wrote at some length about the Cybersecurity Maturity Model Certification (CMMC), particularly following release of revision (rev.) 0.4 for public comment. The Department of Defense (DoD) has now released rev. 0.6 for public comment and review. Rev. 0.6 incorporates the public comments resulting from review of rev. 0.4 and, pursuant to those comments, has significantly streamlined the requirements present in rev. 0.4. [1] DoD government contractors will need to prepare for the implementation of CMMC in order to use their compliance as a competitive edge. . . . Read More
BLOG: Healthcare Company Investments and Acquisitions
In recent years, acquisitions of and investments in healthcare companies have been on the rise, particularly driven by increasing private equity investment activity. These investments can provide unique opportunities for healthcare companies to grow and for investors to realize the benefits of the expanding healthcare industry. While these acquisitions and investments often look and feel like standard acquisitions and investments, the highly regulated nature of the healthcare industry imposes additional risks and requirements on any investor in these companies. This . . . Read More
BLOG: JEDI Protest Saga Continues: Amazon Protests Microsoft’s Award in Court of Federal Claims
On November 8, 2019, Amazon filed a bid protest pre-filing notice with the Court of Federal Claims (“COFC”) indicating its intent to protest the Department of Defense’s (“DoD”) award of the Joint Enterprise Defense Infrastructure (“JEDI”) contract to Microsoft. Amazon’s decision to move forward with a protest does not come as a surprise to most practitioners who have been following this hotly contested procurement since its inception. For government contractors, if you are protesting an award, make certain you do . . . Read More
BLOG: Trouble with Tariffs? You May Have the Basis for an REA or a Claim
In recent years, tariffs have been imposed on an array of goods, ranging from electronics to solar panels to industrial equipment. For companies bidding on contracts now, the tariffs may not be a concern, as the tariffs can be factored into the pricing proposal. However, for government contractors performing contracts that were awarded before the tariffs were imposed, the tariffs may result in increased and unanticipated costs. Those increased costs may provide the basis for a request for equitable adjustment . . . Read More