Government Contracts

• Small Business Administration Expands the “Rule of Two”

  11.01/Alert

  On October 25, 2024, the Small Business Administration (SBA) issued a proposed rule that would expand the applicability of the “Rule of Two.” Under the proposed rule, the Rule of Two would apply to orders issued under multiple award contracts, with certain exceptions.

• DOJ Debuts Updates to Its Evaluation of Corporate Compliance Programs Aimed at the Responsible Use of Artificial Intelligence

  10.08/Alert

  On September 23, 2024, the U.S. Department of Justice (DOJ) Criminal Division released an updated version of its Evaluation of Corporate Compliance Programs (ECCP) guidance. DOJ first published the ECCP in 2017 to provide clear guidance on which factors federal prosecutors will consider when evaluating the strength of a corporation’s compliance programs in the context of an investigation or enforcement action. The ECCP instructs prosecutors on how to evaluate a company’s risk assessment mechanisms, to ensure that the company’s policies and procedures are responsive to the risks that it has identified and communicate those risks, and the established risk mitigations, to the corporation’s stakeholders, such as employees and vendors. The ECCP is a critical resource that companies should consider when developing compliance programs to avoid penalties associated with DOJ enforcement action.

• Federal Court Issues Injunction to Prevent Presumptive Gender and Race Preferences for DOT Contracts Within Kentucky and Indiana

  10.08/Alert

• SBA Proposed Rule to Change How Recertification Affects Small Business IDIQs and Bring More Uniformity Across Various SBA Programs

  09.19/Alert

  On August 23, 2024, Small Business Administration (SBA) published a proposed rule making certain changes to the Historically Underutilized Business Zone (HUBZone) program, as well as other programs, to promote consistency in SBA’s rules across the various socioeconomic government contracting programs. While the proposed rule makes numerous changes to the SBA programs, small businesses will be particularly interested in the proposed changes to SBA’s recertification rule.

• Landslide Election Victory for UK Labour Party Marks Seismic Shift in UK’s Political Terrain

  07.15/Alert

  Following 14 years of Conservative Party rule in the UK, Sir Keir Starmer’s Labour Party has formed His Majesty’s Government with a widely anticipated and substantial election victory at the ballot box on July 4, 2024, marking a seismic shift in the UK’s political terrain. There is now much speculation as to those areas on which Sir Keir Starmer will look to focus, and the earliest concrete signal we will see on his priorities will be the King's Speech, scheduled for the morning of July 17, 2024, which will set out the government's legislative agenda for the coming parliament.

• In a Landmark Decision, Federal Circuit Expands Protest Jurisdiction at COFC

  06.17/Alert

  On June 7, 2024, the U.S. Court of Appeals for the Federal Circuit issued its decision in Percipient.ai v. United States. The case was closely watched by the government contracting community because the Federal Circuit’s decision was poised to have significant impact on the bid protest jurisdiction of the U.S. Court of Federal Claims (COFC).

• After Long Drought, COFC Sustains a Corrective Action Protest

  06.06/Alert

  On May 16, 2024, COFC issued its opinion in Kearney & Company, P.C. v. United States, Nos. 24-162 and 24-201, holding that the corrective action taken by the National Geo-Spatial Intelligence Agency after a post-award protest at GAO was arbitrary and capricious. In the protest, Kearney & Company, P.C. challenged the corrective action taken by the agency on the Audit Remediation and Sustainment Operations task order procurement under the General Service Administration (GSA) Federal Supply Schedule (FSS) multiple-award contract. The initial award to Kearney was terminated by the agency after a GAO protest. Before issuing a decision, GAO held an unrecorded outcome prediction conference where the GAO attorney stated that it would likely sustain one of the protest grounds—that Kearney’s quoted GSA FSS labor category did not match one of the key labor categories required by the solicitation.

• Agency’s Silence is Golden for Protester

  05.20/Alert

  On May 3, 2024, the Government Accountability Office (GAO) sustained a bid protest filed by ITility, LLC, which challenged the Department of Homeland Security’s decision to award a task order for financial and program management support services to Integrated Finance and Accounting Solutions, LLC in a best value procurement. The protester alleged that the agency’s evaluation of technical proposals was unreasonable in several respects and that the agency conducted a flawed best-value tradeoff analysis. In a rare decision, GAO sustained the protest because the agency failed to substantively address several allegations raised in the protest. GAO also concluded that the agency failed to reasonably evaluate proposals due to unrecognized discriminators in the protester’s proposal.

• Revised Uniform Grants Guidance Reduces Burdens While Encouraging Accessibility and Transparency

  04.22/Alert

  On April 4, 2024, the White House released a pre-publication final rule substantially updating the Office of Management and Budget (OMB) Uniform Grants Guidance, which sets the foundational requirements for agencies in making grants and providing other forms of federal financial assistance and will now be known as the “Guidance for Federal Financial Assistance.” Federal financial assistance includes grants, cooperative agreements (but not cooperative research and development agreements), loans and loan guarantees, subsidies, insurance and certain other types of assistance. This pre-publication final rule will be published in the Federal Register and builds on the proposed rule published in the Federal Register on October 5, 2023. This final rule is the most significant revision to the Uniform Grants Guidance since its inception 10 years ago.

• DoD Contractor Requirement to Disclose Greenhouse Gas Emissions Has Been Halted

  03.22/Alert

  On December 6, 2022, and January 4, 2023, we published two client alerts outlining the proposed greenhouse gas (GHG) emissions disclosure requirements and explaining the differences between the Scope 1, 2 and 3 GHG emission categories. As we previously described, FAR 23.001 defines GHG as carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, nitrogen trifluoride and sulfur hexafluoride. Under the proposed Federal Acquisition Regulation (FAR) regulation, virtually all federal contractors will be required to identify and report an inventory of their Scope 1 and Scope 2 GHG emissions, starting one year after a final FAR rule is issued. With limited exceptions, this requirement will apply to all government contractors who received $7.5 million or more in federal contract obligations in the prior fiscal year. Government contractors who do not qualify as small business concerns and who received more than $50 million in federal contract obligations in the prior fiscal year will also be required to report an annual inventory of their Scope 3 GHG emissions. To date, the final FAR rule has not been issued.

• Federal Circuit Reverses COFC Protest Decision on Standing

  02.16/Alert

  In REV, LLC v. United States, a veteran-owned small business appealed a Court of Federal Claims (COFC) decision that the protester lacked standing to challenge the evaluation of multiple awardees, after being excluded from the competition after Phase 1 of a two-phase qualifying process under the Department of Veteran Affairs (VA) Twenty-One Total Technology-Next Generation (T4NG) multi-award Indefinite Delivery, Indefinite Quantity (IDIQ) on-ramp procurement. On January 29, 2024, the Federal Circuit reversed the COFC decision.

• DoD Publishes Final Rule Implementing Executive Order 14005

  02.16/Alert

  On February 15, 2024, the Department of Defense (DoD) issued a final rule that amends the Defense Federal Acquisition Regulation Supplement (DFARS) and imposes higher U.S. and qualifying country content requirements for certain DoD procurements. As we discussed at the time of the proposed rule, this represents the U.S. government’s overall push to ensure that products and services it acquires are manufactured domestically. The final rule implements President Biden’s January 28, 2021 Executive Order, “Ensuring the Future Is Made in All of America by All of America’s Workers,” and follows a similar rule amending the applicable Federal Acquisition Regulation (FAR) clauses published on March 7, 2022. The DoD’s final rule is effective as of February 15, 2024—the date of its publication.

• Employers Face Greater Misclassification Risk Under Resurrected Federal Independent Contractor Rule, Opening Door to Substantial Liability

  01.17/Alert

  The Fair Labor Standards Act (FLSA) requires employers to provide minimum wage and overtime pay to qualified employees—but not to independent contractors. Many employees, especially full-time employees, are also entitled to various statutory benefits, such as state law paid sick leave entitlements, workers’ compensation benefits, unemployment benefits, and to benefits under an employer’s ERISA-governed benefit plans, such as group health insurance policies and 401(k) plans. Failure to properly classify workers as employees can therefore result in substantial damages and penalties, even if the misclassification is unintentional, as described in more detail below. Correctly classifying workers is therefore of significant importance.

• National Institute of Standards and Technology Seeks Public Comment on Draft Interagency March-In Framework

  01.04/Alert

  On December 8, 2023, the National Institute of Standards and Technology (NIST) issued the “Draft Interagency March-In Framework” that would provide guidance to agencies on the prerequisites for exercising march-in rights, and, if those prerequisites are met, on facts to be gathered by the agency, and factors to consider in determining whether to require a contractor, assignee or exclusive licensee of an invention made under a government contract or funding agreement to grant a license to practice the invention. The comment period closes on February 6, 2024, after which point, NIST is expected to finalize the framework.

• Department of Labor Finalizes Rule to Provide Service Employees Right of First Refusal under Successor Contracts

  12.20/Alert

  On December 4, 2023, the Department of Labor (DOL) published a final rule highlighting the federal government’s procurement interest in economy and efficiency which requires successor contractors or subcontractors to hire the predecessor’s employees, for the same or similar services, thus avoiding displacement of these employees. On July 19, 2022, we advised on this proposed rule in a client alert addressing the implementation of Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts. The proposed rule required service contracts which succeed contracts for the same or similar services, and solicitations for such contracts, to include a nondisplacement clause to offer right of first refusal of employment under the successor contract.

• Proposed Rules Overhaul Cybersecurity Requirements for Government Contractors

  11.15/Alert

  On October 3, 2023, the Federal Acquisition Regulation (FAR) Council proposed two rules, Cyber Threat and Incident Reporting and Information Sharing and Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems. The proposed rules partially implement Executive Order (EO) 14028, Improving the Nation’s Cybersecurity, which focuses on improving the nation’s cybersecurity and protecting against cyber threats by revamping incident reporting, information sharing for federal contractors and implementation of related cybersecurity policies. On November 1, 2023, the FAR Council extended the comment period for these proposed rules until February 2, 2024.

• Interim Rule Establishes New Supply Chain Diligence Requirements for Contractors

  11.03/Alert

  On October 5, 2023, the Federal Acquisition Regulatory (FAR) Council issued an interim rule that implements the requirements of the Federal Acquisition Supply Chain Security Act (FASCSA) and creates three new FAR clauses that prohibit contractors from delivering or using covered articles and sources subject to exclusion or removal orders issued under the FASCSA. The FASCSA, which was signed into law on December 21, 2018, aims to prevent foreign adversaries from creating and exploiting vulnerabilities in information and communications technology to commit malicious cyber-enabled actions against the U.S. government. The FASCSA established the Federal Acquisition Security Council (FASC), an executive branch interagency council authorized to perform a variety of functions to further these goals.

• Government Accountability Office Publishes Fiscal Year 2023 Bid Protest Statistics

  10.27/Alert

  On October 26, 2023, the Government Accountability Office (GAO) published its Bid Protest Annual Report to Congress for Fiscal Year 2023. The GAO’s report, which is mandated by the Competition in Contracting Act, lists its key statistics for FY 2023 bid protest activity. The report also includes a chart providing similar bid protest statistics for fiscal years 2019 – 2023. This five-year snapshot provides some valuable insight into current bid protest trends and developments at the GAO.

• The Looming Government Shutdown—What Contractors Can Do to Prepare

  09.15/Alert

  The federal government’s new fiscal year begins on October 1, 2023. Given the current political climate, Congress may not agree on a new budget by the September 30 deadline. This creates a significant risk that the government will soon shut down for days or even weeks. If this happens, all executive branch operations will cease except for those deemed “essential,” a result which will significantly impact government contractors.

• For Protest Timeliness Purposes, Forwarding an Agency Email Outside of Business Hours Constitutes Actual Notice

  06.01/Alert

  The Government Accountability Office (GAO) is well-known for its strict rules for the timely submission of protests. Under these rules, a protest based on other than alleged improprieties in a solicitation must be filed no later than 10 calendar days after the protester knew, or should have known, of the basis for protest. The GAO has held that a protester is on constructive notice of information received via email during normal business hours, but is not on constructive notice when an email is received outside of normal business hours. However, where a protester has actual notice of information that is received outside of normal business hours, the timeliness period for filing a protest begins on the day the information was actually received. The GAO has previously held that opening an email constitutes actual notice, even if the opened email was not read. The GAO’s recent decision in Infotrend Inc. has identified an additional action that can constitute actual notice.

• IRS, Department of Treasury Release Guidance on Domestic Content Rules for Energy Projects

  05.15/Alert

  On Friday (May 12, 2023), the Department of Treasury and the Internal Revenue Service (IRS) released Guidance for taxpayers seeking to take advantage of domestic content bonus credits associated with energy projects under the Inflation Reduction Act (IRA). Specifically, the Guidance sets out the requirements for using domestic steel, iron and manufactured products in order for a project to be eligible for the domestic content bonus credit amount. Projects that meet the domestic content requirement will be eligible to receive a 10 percent bonus under the production tax credit and up to a 10 percent bonus under the investment tax credit, provided that other requirements are also met.

• “If You Don’t Make It There, You Can’t Make It Anywhere:” New York’s Zero Manufacturing Rate Requires New York Property

  04.27/Alert

  A New York State Division of Tax Appeals (DTA) administrative law judge (ALJ) determined that Raytheon Company and affiliates (Raytheon) did not qualify for New York’s zero percent tax rate for manufacturers or the reduced tax rate for qualified emerging technology companies (QETCs). Raytheon’s primary contention in the litigation is that the zero percent manufacturing rate unconstitutionally discriminates against manufacturing activity outside New York. Specifically, Raytheon argued that the law as applied to its facts violated the U.S. Constitution, but the ALJ determined that Raytheon’s argument constituted a facial challenge to the statute that falls outside the DTA’s jurisdiction. Because the New York legislature included a poison pill in the session law that enacted the zero percent rate, the constitutional challenge could eliminate the zero percent manufacturing rate for all taxpayers.

• DoD Issues New Small Business Strategy to Bolster Participation

  02.22/Alert

  Small businesses are not only vital to the American economy, but they also form the backbone of the defense industrial base. More than 70% of the companies doing business with the DoD are small businesses. Despite their importance, the number of small businesses participating in the defense industrial base has declined by more than 40% over the last decade due to various factors, including complex regulations, a convoluted entry process into the defense marketplace, fewer contracting opportunities and increased costs.

• Significant Changes to the SBIR and STTR Programs

  01/05/2023

  On September 30, 2022, the SBIR and STTR Extension Act of 2022 (the Act) was enacted, reauthorizing the SBIR and STTR programs until September 30, 2025. The Act makes several significant changes related to national security risks and foreign influence in the programs. The changes include agency implementation of due diligence procedures, new offeror disclosure and ongoing contractor reporting requirements, and new award eligibility requirements, with an offeror’s or contractor’s omissions or misstatements resulting in repayment of the entire award amount, among other changes to the programs.

• SEC Adopts Broad Amendments to Rule 10b5-1 Protections and Section 16(a) Reporting

  01.04/Alert

  On December 14, 2022, the SEC adopted amendments and form updates relating to several topics first previewed in its proposed rulemaking on January 13, 2022. These amendments serve the SEC’s twin goals of eliminating loopholes for insider trading under the guise of Rule 10b5-1 trading plans (10b5-1 plans) and increasing public disclosure of trading in and equity grants of issuers’ securities while insiders are potentially in possession of material nonpublic information (MNPI). Through this rulemaking, the SEC is significantly altering the paradigm relating to adoption and modification of 10b5-1 plans and the affirmative defense such plans may provide against claims of fraud and insider trading. The SEC is also increasing disclosure requirements relating to the use of 10b5-1 trading plans by insiders and in connection with issuers’ equity grant practices, and for the first time, will require disclosure in an issuer’s annual report of its insider trading policy. The rule amendments also modify Forms 4 and 5 to require disclosure of whether a transaction was executed with the intent to satisfy the affirmative defense conditions of Rule 10b5-1, and to require disclosure of gifts on Form 4 within two business days.

• The Scope of the Proposed Disclosure and Reduction Requirements Concerning Greenhouse Gas Emissions Would Impose Substantial Compliance Obligations on Federal Contractors

  01.04/Alert

  On December 6, 2022, Pillsbury issued a client alert to notify government contractors that the Federal Acquisition Regulatory Council (FAR Council) recently issued a proposed rule that would require most federal contractors to make disclosures and representations regarding their greenhouse gas (GHG) emissions and for certain major contractors to also set science-based targets to reduce those emissions. Given the extensive scope of this proposed rule, our first client alert focused on outlining the identification and reporting requirements of GHG emissions that would be imposed upon government contractors. This client alert provides additional information regarding the nature of Scopes 1, 2, and 3 GHG emission categories, as well as some of the complexities associated with the reduction of GHG emissions in accordance with “science-based targets.”

• SEC’s Heightened Scrutiny of Rule 10b5-1 Plans and Final Rulemaking Focus Is on Insiders Rather than Issuers

  01.04/Alert

  Securities and Exchange Commission (the SEC or the Commission) Rule 10b5-1, adopted more than 20 years ago, made it possible for insiders of publicly traded companies (and other individuals and entities that have access to material nonpublic information (MNPI)) to establish written plans (Rule 10b5-1 plans) for trading in the company’s shares. Under Rule 10b5-1, if such a plan is established in good faith at a time when the trader is not aware of MNPI, the trader will have an affirmative defense against insider trading charges, even if actual trades made pursuant to the plan are executed at a time when the individual may be in possession of MNPI that would otherwise subject that person to liability under Section 10(b) of the Securities Exchange Act of 1934 or Rule 10b-5. By providing clarity regarding how persons—who otherwise may be presumed to have MNPI—can establish written plans that can reliably permit trading, Rule 10b5-1 enabled widespread adoption of trading plans by public company insiders or others who may have access to MNPI.

• Proposed Rule on Greenhouse Gas Emissions Would Impose Significant Compliance Obligations on Federal Contractors

  12.06/Alert

  The Federal Acquisition Regulatory Council recently issued a far-reaching proposed rule that includes significant compliance obligations for contractors related to their greenhouse gas emissions.

• SBA Issues Final Rule to Take Control of All Veteran-Owned Certifications

  12.01/Alert

  The Small Business Administration (SBA) is consolidating and making significant changes to the Veteran-Owned Small Business and the Service-Disabled Veteran-Owned Small Business programs, including the elimination of self-certification.

• SBA Issues Interim Rule to Increase Receipts-Based Size Standards by 13.65% for Inflation

  11.28/Alert

  On November 17, 2022, the Small Business Administration (SBA) issued an interim final rule for receipt-based size standards, which increases all size standards by 13.65 percent (rounded to the closest $500,000, except for agricultural standards, which are rounded to the closest $250,000) as an additional adjustment for the effect of inflation since 2019. (See our July 22, 2019 Client Alert.) The SBA did not wait “at least every 5 years” to make the inflation adjustment that is required by statute but is making this significant adjustment after three years since its last adjustment for inflation.

• By the Numbers: ASBCA’s Fiscal Year 2022 Annual Report

  11.16/Alert

  The Armed Services Board of Contract Appeals (ASBCA or Board) recently issued its fiscal year (FY) 2022 annual report, covering the period from October 1, 2021, through September 30, 2022. During FY 2022, 400 new appeals were docketed at the ASBCA, the same number of appeals that were docketed during FY 2021. A significant percentage of the appeals—114 of the 400 new cases (or roughly 25%)—were filed against the U.S. Air Force. During four of the previous five fiscal years, the U.S. Army Corps of Engineers was the agency against which most new ASBCA appeals had been filed.

• Government Accountability Office Publishes Fiscal Year 2022 Bid Protest Statistics

  00.01/Alert

  On November 1, 2022, the Government Accountability Office (GAO) published its Bid Protest Annual Report to Congress for Fiscal Year 2022. The GAO’s report, which is mandated by the Competition in Contracting Act, lists its key statistics for fiscal year 2022 bid protest activity. The report also includes a chart providing similar bid protest statistics for fiscal years 2018 – 2022. This five-year snapshot provides some valuable insight into current bid protest trends and developments at the GAO.

• SBA Proposes Rule to Take Control of All Veteran-Owned Certifications

  07.26/Alert

  The Small Business Administration (SBA) has proposed consolidating and making significant changes to the Veteran-Owned Small Business (VOSB) and the Service-Disabled Veteran-Owned Small Business (SDVOSB) programs, including the elimination of self-certification.

• Your Government Customer is Considering a Default Termination: What Should You Do?

  07.17/Alert

  When companies perform federal contracts, the government has a right to terminate for default when a contractor performs poorly. Historically, terminations for default have been considered draconian measures and species of forfeiture to which “the Government should not lightly resort.” See Eagle Peak Rock & Paving, Inc., CBCA No. 5692, 21-1 BCA ¶ 37,752. For that reason, agencies have used the remedy sparingly, and the Courts and Boards of Contract Appeals have heavily scrutinized default terminations because they impact revenue, damage past performance evaluations, and stigmatize contractors. See Vought Aircraft Co., ASBCA No. 38092, 96-2 BCA ¶ 28,321.

• SBA Proposes New Size Standards for 2022 NAICS Codes

  07.05/Alert

  The Small Business Administration’s proposed rule would adopt the latest NAICS revision issued by the Office of Management and Budget, creating 111 new industries by reclassifying, combining or splitting 156 existing industries.

• SBA Increases Size Standards for 229 Industries

  04.04/Alert

  The final rules increase the receipts-based small business size standards for these industries, allowing many businesses to remain a small business for longer or regain their small business status.

• SBA’s Proposed Rule Would Increase the Employee-Based Size Standards for 150 Industries

  04/27/Alert

  The proposed rule would increase the employee-based small business size standards for these industries, allowing many businesses to remain a small business for longer or regain their small business status.

• DoD Enhanced Debriefing Final Rule Provides Greater Transparency for Contractors

  03.24/Alert

  The final rule provides for additional debriefing rights and clarifies the GAO bid protest stay timeliness rules.

• Final Rule Increases Compliance Obligations Under the Buy American Act

  03.09/Alert

  On March 7, 2022, the Federal Acquisition Regulatory Council (FAR Council) issued a final rule that would, among other things, impose significantly increased U.S. content requirements for federal procurements subject to the Buy American Act (BAA). The final rule implements the requirements outlined in President Biden’s January 28, 2021 Executive Order, “Ensuring the Future Is Made in All of America by All of America’s Workers” (the EO), and incorporates some of the feedback received in response to the FAR Council’s July 30, 2021 proposed rule, which we previously discussed here. Although the final rule deviates little from the proposed rule, the deviations are noteworthy.

• COFC Splits with GAO on Whether Contractors Must Notify Agency of Changes to Key Personnel Availability

  02.11/Alert

  A Court of Federal Claims decision holds that offerors do not have a duty to inform agency of changes to key personnel availability after submission of proposal.

• New Infrastructure Law Brings Significant Investments in Drinking Water and Wastewater Infrastructure

  02.09/Alert

  Alongside funding for roads, bridges, energy, broadband and cybersecurity, the Infrastructure Investment and Jobs Act (IIJA), enacted on November 15, 2021, appropriates $55B to the U.S. Environmental Protection Agency (EPA) to improve drinking water and wastewater infrastructure. According to the EPA, this investment represents the single largest federal investment in water in the nation’s history.

• Civilian Board of Contract Appeals Releases Fiscal Year 2021 Annual Report

  01.31/Alert

  The Civilian Board of Contract Appeals (CBCA or Board) recently released its fiscal year (FY) 2021 report. The CBCA docketed 364 new matters in FY 2021, which was down slightly from the 378 new matters docketed in FY 2020. This represents the second consecutive year the Board docketed fewer than 400 new matters, which before last year had not happened since 2012. Of the 364 new matters, 185 were Contract Disputes Act cases and 72 were Alternative Dispute Resolution (ADR) cases, with the remaining consisting mostly of either appeals by civilian government employees concerning travel or relocation reimbursement denials or FEMA arbitration matters. For the second year in a row, the Board resolved more disputes than it docketed. The report also notes that for the first time since the Board’s 2007 inception, it issued an advisory opinion in response to a request by a U.S. district court pursuant to the Contract Disputes Act, 41 U.S.C. § 7107(f). The district court requested an advisory opinion on two issues of contract interpretation arising from a pending False Claims Act suit.

• ASBCA’s FY 2021 Annual Report Details Informative Statistics that Can Guide Potential Contract Disputes Act Claimants

  11.15/Alert

  The Armed Services Board of Contract Appeals (“the Board”) recently issued its fiscal year (FY) 2021 annual report, covering the period from October 1, 2020, through September 30, 2021. Of note, contractors docketed only 400 new appeals during FY 2021, which marks the fewest number of new docketed appeals at the Board in more than 20 years. This decrease follows the downward trend in docketed appeals the Board has experienced during the last four fiscal years, with the exception of a slight increase during FY 2020. For comparison, the Board docketed 497 new appeals last year; 708 in FY 2014 and 624 during FY 2007, when the Board’s docket achieved all-time high levels on the basis of Iraq and Afghanistan reconstruction claims.

• SBA Proposes Rule to Amend Employee-Based Size Standards

  11.08/Alert

  The Small Business Administration is proposing to use a 24-month average to calculate a business concern’s number of employees for eligibility purposes in all of SBA’s programs.

• DOJ Announces Civil Cyber-Fraud Initiative to Combat Cybersecurity Threats

  10.25/Alert

  DOJ launches new initiative that promises to use the False Claims Act to combat cybersecurity threats by targeting government contractors who knowingly fail to comply with cybersecurity protocols.

• DoD Requires Data Reporting for Certain Service Contracts Exceeding $3 Million

  08.02/Alert

  The Department of Defense (DoD) issued a final rule on July 9, 2021, requiring contractors to report annually their total labor hours and invoiced amounts for certain service contracts.

• DoL Proposes Rule to Increase Minimum Wage to $15 for Many Federal Contractors

  07.27/Alert

  Through a proposed rule published on July 22, 2021, the Department of Labor is implementing Executive Order 14026. The new rule and Executive Order will require federal service, construction contractors and subcontractors to increase hourly wages to $15 per hour for a broad range of employees.

• Bipartisan Senators Introduce the Cyber Incident Notification Act of 2021

  07.27/Alert

  On July 21, 2021, Senator Mark Warner (D-VA), chair of the Senate Intelligence Committee, and a bipartisan group of co-sponsors including Senator Marco Rubio (R-FL) and Senator Susan Collins (R-ME), formally introduced the Cyber Incident Notification Act of 2021. In light of high-profile cybersecurity incidents such as the Colonial Pipeline attack, the Act aims to require companies and federal agencies to quickly report cybersecurity intrusions to the Federal Government.

• DOJ Continues Targeting of Corruption through AML Laws and Alternate Statutes – Lessons for Compliance and Due Diligence

  07.13/Alert

  As the Biden Administration commits to crack down on corruption, recent enforcement actions show the DOJ continues a longstanding trend of relying on AML laws and other alternate statutes to prosecute corruption cases, with lessons for internal compliance and due diligence.

• New GSA Regulations Governing Foreign Ownership Disclosure

  07.08/Alert

  GSA issues new regulations requiring certification as to foreign ownership and foreign financing of high-security leased space.

• A Warning to Contract Counterparties: A Debtor Can Sell Your Fully Performed Contract Without Curing Defaults and Paying Your Claim in Full

  07.07/Alert

  There was no “silver lining” for a producer of the 2012 critically acclaimed film Silver Linings Playbook and his $400,000 claim to a portion of the film’s profits in a dispute before the Third Circuit Court of Appeals. See Spyglass Media Grp., LLC v. Bruce Cohen Prods., 997 F.3d 497 (3d Cir. 2021). Notwithstanding the purchase of film and related production/distribution rights and contracts in a bankruptcy sale and the buyer’s commitment to cure all defaults on the executory contracts acquired, the Third Circuit held that the producer had only an unsecured claim against the Weinstein Company’s estate because the producer’s contract was not executory. The decision serves as a stark reminder that contract counterparties do not always receive full payment on their claim when their contract is sold in bankruptcy. 

• Southern California’s New Indirect Source Rule for Warehousing Operations Tests Jurisdictional Waters

  06.29/Alert

  Rule 2305, a first-of-its-kind air district rule, will impose new costs on warehouses and the Southern California supply chain, potentially testing legal boundaries of local authority to regulate “indirect sources” of emissions.

• ASBCA Rejects Government’s Motion to Dismiss Despite Suspicion of Fraud

  06.17/Alert

  As we have reported previously, in actions at the Court of Federal Claims the Department of Justice often attempts to use fraud counterclaims when justifying its denial of a contractor’s claim. We are also noticing that agency lawyers are using fraud as an affirmative defense more frequently at the Boards of Contract Appeals, which unlike the Court of Federal Claims lack jurisdiction over fraud claims. Contractors should be aware that when the government attempts to use alleged fraud to strip the boards of jurisdiction, a recent decision from the Armed Services Board of Contract Appeals (the Board) makes clear that the Board retains jurisdiction unless actual fraud is found by a competent government agency or established by a federal court.

• Biden Administration Updates Framework for China-Related Investment Prohibitions and Expands the Scope of Restricted Chinese Companies

  06.15/Alert

  Summary of the E.O.

  On June 3, 2021, President Biden signed E.O. 14032 that alters the framework for restrictions on the purchase or sale of publicly traded securities of Chinese companies designated for military affiliations, but ultimately re-affirms the previous restrictions under E.O. 13959. These restrictions will continue to be applied to 31 entities previously sanctioned as well as 28 newly added companies. On the same day, the Department of Defense (DOD) independently released its annual list of Chinese military companies pursuant to recently enacted legislation.

• Congressional SPACtivity Continues: Draft Legislation Proposes to Eliminate Safe Harbor Protection for Projections in SPAC Transactions

  05.28/Alert

  As previously noted in Pillsbury’s earlier article, one factor that has contributed to the rise in SPACtivity has been the availability to SPACs of certain features unavailable to companies going public through traditional IPOs, most notably the Private Securities Litigation Reform Act (PSLRA) safe harbor for forward-looking statements. On May 21, 2021, the U.S. House Committee on Financial Services released draft legislation to amend the Securities Act of 1933 (the Securities Act) and the Securities Exchange Act of 1934 (the Exchange Act) to exclude all SPACs from the safe harbor. Section 27A of the Securities Act and Section 21E of the Exchange Act currently exclude from the safe harbor forward-looking statements made “… in connection with an offering of securities by a blank check company…” Rule 419 under the Securities Act defines a “blank check company” as “…a development stage company that has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies, or other entity or person… ” and is “ … issuing penny stock ...” As the vast majority of SPACs do not issue penny stock or are structured to avoid treatment as a “blank check company” as defined in Rule 419, de-SPAC transactions have generally been viewed as eligible for the PSLRA safe harbor. The draft legislation proposes to delete the term “blank check company,” replacing it with the phrase “… a development stage company that … has indicated that its business plan is to acquire or merge with an unidentified company, entity, or person…” without reference to whether or not the company issues penny stock. As a SPAC is formed for the purpose of acquiring or merging with an unidentified entity, the proposed amendments would likely make the PSLRA safe harbor unavailable for forward-looking statements, such as projections, included in documents soliciting stockholder approval of de-SPAC transactions.

• DoD Issues Proposed Rule on Enhanced Debriefing Procedures

  05.24/Alert

  The Department of Defense (DoD) recently issued a proposed rule to implement Section 818 of the FY18 NDAA. Under Section 818, Congress required the DoD to issue new regulations in the Defense Acquisition Regulation Supplement (DFARS) on the procedures for enhanced debriefing rules within six months. 

• China Publishes New Draft Regulations on Data Security Management of Automobile Operators to Protect Privacy

  05.20/Alert

  On May 12, 2021, the Cyberspace Administration of China (CAC) published the Several Regulations on the Management of Automobile Data Security (Draft for Comment) (Draft Regulations). The Draft Regulations are open for public comment until June 11, 2021.  According to the CAC’s statement, due to growing concerns over personal data security and privacy protection in the People’s Republic of China (PRC), the Draft Regulations aim to strengthen protection of personal information and important data in automobile-related activities, as well as safeguard national security and the public interest. Below is our summary of the highlights of the Draft Regulations.

• Congress Moves to Repeal OCC’s “True Lender” Rule

  05.20/Alert

  On May 11, 2021, the Senate voted to repeal a Trump Administration regulation that defines which party is the “true lender” in partnerships between banks and non-banks, including financial technology and other non-bank lending companies. The Senate resolution now heads to the House of Representatives, which is expected to pass the resolution. President Biden has signaled his support for the repeal and will likely enact the repeal following a vote in the House. The repeal of this rule could create regulatory uncertainty for fintechs and other non-bank lenders that were relying on the rule.

• Time’s Up!: The Court Rejects the Government’s Request for a Longer Limitations Period Applicable to Fraud Counterclaims

  05.11/Alert

  Contractors often face the dilemma of whether they should appeal an adverse contracting officer final decision (COFD) issued under the Contract Disputes Act (CDA) to the cognizant Board of Contract Appeals or the Court of Federal Claims. One factor favoring the Boards is that the Court has jurisdiction over fraud counterclaims and the Boards do not. The Department of Justice (DOJ) (which represents the government at the Court) has asserted such fraud counterclaims with more regularity in recent years.  Contractors should know that when the government asserts a fraud counterclaim, the Court’s decision in Lodge Constr., Inc. v. United States, No. 13-499, 2021 WL 1418847 (Fed. Cl. Apr. 14, 2021), makes clear that the government must adhere to a hard deadline--perhaps with no exceptions.

• ASBCA Confirms the “Goldilocks Principle” in Government Contract Appeals

  05.05/Alert

  Contractors must ensure that they do not appeal a contracting officer’s decision too early or too late lest they find that the courts and board have no jurisdiction. Yet, the government continues to issue directions that provide no certainty on the issue and, indeed, serve only to muddle the question of what constitutes an appealable final decision. Last month, the Armed Services Board of Contract Appeals (ASBCA or Board) issued a decision in the appeal of Northrop Grumman Corporation, ASBCA No. 62189, dismissing the appeal for lack of jurisdiction and highlighted what these authors will refer to as “the Goldilocks Principle” for when contractors can appeal a contracting officer’s decision that certain costs are not allowable. Frustratingly, the Government often issues unclear decisions that can leave contractors wondering whether the timing for appeal is too early, too late or just right.

• Data Privacy Fines and Damages “Double Jeopardy”: UK Supreme Court Hears Google “Class Action”

  04.29/Alert

  This week sees a key hearing before the UK Supreme Court in the case of Lloyd v Google, an event long awaited by those familiar with data protection law proceedings in Europe.

• President Biden Issues an Executive Order Increasing the Minimum Wage for Many Employees of Federal Contractors to $15.00

  04.28/Alert

  On April 27, 2021, President Biden signed an Executive Order raising the minimum wage paid by Federal contractors and subcontractors to $15.00 per hour, beginning on January 30, 2022. The Federal minimum wage currently is $10.95 per hour for all workers on Federal construction and service contracts, based on President Obama’s 2014 Executive Order 13658, which had raised that minimum wage to $10.10 per hour and provided for adjustment for inflation. These Executive Orders do not change the current minimum wage of $7.25 under the Fair Labor Standards Act (FLSA) applicable to non-exempt employees who do not work for government contractors, and to employees of government contractors who do not work on or in connection with Federal construction and service contracts.

• No Clear Answer to Address New Executive Order’s Effect on Recently Issued Buy American Regulations

  02.04/Alert

  Two recent developments make clear that government contractors will have their hands full complying with U.S. domestic preference rules in the coming years. On January 19, 2021, the Federal Acquisition Regulatory Council (FAR Council) issued a final rule implementing former President Trump’s Executive Order 13881 (Maximizing Use of American-Made Goods, Products, and Materials). The final rule makes significant changes to the domestic content requirements set forth in the Buy American regulations. Less than one week after the final rule became effective, President Biden signed Executive Order 14005 (Ensuring the Future Is Made in All of America by All of America's Workers) (the Order). The Order directs the FAR Council to further amend the domestic content requirements in the Buy American regulations. As we discuss below, the interplay and overlap between the Order and the final rule are almost certain to cause confusion until the Biden Administration or the FAR Council provide clarifying guidance. Suffice it to say, domestic preference compliance will become more complex in 2021. 

• Federal Support for Defense Uses of Advanced Nuclear

  02.03/Alert

  Summary of the EO

  On January 12, 2021, former President Trump issued an EO on Promoting Small Modular Reactors for National Defense and Space Exploration. The EO directs the Department of Energy (DOE), Department of Defense (DOD), and NASA to take actions to coordinate their nuclear-related activities, move forward with certain ongoing nuclear projects and promote advanced reactor and small modular reactor (SMR) technologies. The purpose of the EO is to take steps to revitalize the U.S. nuclear sector, reinvigorate the U.S. space exploration program, develop diverse energy options for national defense needs and advance U.S. technological supremacy and leadership.

• Affirming Dismissal of AirAsia Lawsuit, D.C. Circuit Court Overrules Prior Decisions Allowing Personal Jurisdiction Based on Internet Presence Alone

  01.29/Alert

  The United States Court of Appeals for the D.C. Circuit has affirmed the dismissal of a personal injury lawsuit brought against the Malaysian-based airline AirAsia by a passenger and her husband. Erwin-Simpson v. AirAsia, No. 19-7034 (D.C. Cir. Jan. 19, 2021). This recent decision sets a new standard for establishing personal jurisdiction in the Circuit.

• Copyright Small-Claims Court Established by Congress in the CASE Act

  01.27/Alert

  According to Register of Copyrights in its 2013 Report on Copyright Small Claims, “small claims issues are anything but small. On the contrary, they present a range of complex considerations, from constitutional constraints to procedural concerns to questions of what claims should be eligible for alternative treatment.” Before the recently enacted CASE Act, there had not been a small-claims court with jurisdiction to hear copyright claims.

• Congressional and Government Investigations in 2021: What to Expect from the Biden-Harris Administration and How to Prepare

  01.27/Alert

  Government investigations pose many risk management challenges. They are unpredictable, political and often public. If handled incorrectly, they can last for many years, spiral into multiple Congressional, criminal, and/or regulatory investigations at the state and federal levels, and generate serious reputational harm. Potential targets can take proactive steps to mitigate their risks.

• COVID-19 Relief: Loan Forgiveness Requirements and Loan Review Procedures for Renewed Paycheck Protection Program

  01.25/Alert

  On December 27, 2020, the Economic Aid Act was signed into law. The Economic Aid Act reinitiated the PPP, appropriating $284 billion for both First and Second Draw PPP Loans. The Act amended borrower eligibility criteria, added permissible uses of the loan proceeds and established new eligibility requirements for borrowers seeking Second Draw PPP Loans. We discussed these new provisions and SBA’s first implementing regulations here.

• Can the Government Terminate a Contract for Convenience When It Does Not Actually Terminate the Contract for Convenience?

  10.26/Alert

  On October 16, 2020, the Court of Federal Claims granted a Motion for Summary Judgment that disposed of a breach of contract claim alleging the Army did not order certain services required under the contract. JKB Solutions and Services, LLC v. United States, COFC No. 19-1390C (Fed. Cl. Oct. 16, 2020) (“JKB II”). The Court held that the Army constructively terminated the contract for convenience and, therefore, did not breach it. The Court was not moved by the fact that the Army did not, in actuality, terminate the contract for convenience or for any other reason. 

• Understanding the New $60 Billion U.S. International Development Finance Corporation (DFC)

  08.17/Alert

  At the start of 2020, the U.S. International Development Finance Corporation (DFC) finally became operational after more than a year of organizational and budgetary delays. Signed into law as a part of the 2018 BUILD Act, the DFC is a $60 billion investment agency that merged the Overseas Private Investment Corporation (OPIC) with other foreign investment programs and added new objectives. DFC has a broader development objective than OPIC’s mission and offers increased services to lower- and middle-income economies, with nearly 100 countries identified as priority areas.

• California Supreme Court Holds Law Restricting Employment Non-Competes Also Applies to Businesses Contracts Under Antitrust Real of Reason Standard

  08.17/Alert

  The Ixchel Pharma, LLC v. Biogen, Inc. case stems from a settlement agreement between two pharmaceutical companies, Biogen, Inc. and Forward Pharma, pursuant to which Forward agreed to exercise its contractual right to terminate a drug development agreement with a third pharmaceutical company, Ixchel Pharma, LLC. Ixchel then sued Biogen in California federal court asserting: 1) tortious interference with Ixchel’s contractual relationship with Forward; and 2) that Biogen’s agreement with Forward was an unenforceable non-compete agreement under California Business and Professions Code section 16600.¹ The district court dismissed Ixchel’s complaint, Ixchel appealed, and the Ninth Circuit certified two questions, which the California Supreme Court framed as follows: “(1) Is a plaintiff required to plead an independently wrongful act in order to state a claim for tortious interference with a contract that is terminable at will? (2) What is the proper standard to determine whether section 16600 voids a contract by which a business is restrained from engaging in a lawful trade or business with another business?”

• DoD Has Released Model Volume 1.0 of the Cyber Maturity Model Certification Framework

  02.04/Alert

  DoD has released the highly anticipated final Model Version 1.0 of the Cybersecurity Maturity Model Certification (CMMC) framework. As we have reported in client alerts in December 2017, May 2018, October 2018 and December 2019, the development of the CMMC framework is part of DoD’s efforts to enhance the protection of sensitive data within the Federal supply chain. The CMMC framework adds a verification and audit component to DoD’s cybersecurity requirements. It is anticipated that all contractors throughout the DoD supply chain will need to reach some level of CMMC certification if they are to receive future DoD contracts and subcontracts.

• 10 Recommended Steps to Take Following Receipt of a Notice of Proposed Debarment or Suspension

  01.21/Alert

  For government contractors, a debarment immediately renders them ineligible for government contracting and, in turn, cuts off revenue, leading to potential irreparable harm. For individuals facing debarment, the effect is equally as dire, as most government contractors will immediately terminate an employee who has been proposed for debarment, or at a minimum, place the employee on leave pending a resolution. With such high stakes, those who find themselves in the crosshairs of such proceedings inevitably have questions. What should I do if I am debarred, and how does debarment affect me? How will my reputation be impacted by debarment? What can I do to avoid debarment? Unfortunately, adequate answers can be difficult to find.

• Civilian Board of Contract Appeals Releases 2019 Annual Report

  01.15/Alert

  Earlier this week, the Civilian Board of Contract Appeals (CBCA) released its Fiscal Year (FY) 2019 report. The CBCA docketed 418 new matters in FY 2019, which represents a modest increase from the 409 docketed in FY 2018. Prior to FY 2018, the CBCA had experienced docket decreases for each of the previous three years. For only the second time since FY 2014, however, the number of new cases docketed during the year exceeded the number of appeals the CBCA resolved. This latter statistic indicates that matters may proceed more slowly during 2020.

• SBA Issues Final Rule Impacting Small Business Regulations

  12.03/Alert

  On November 29, 2019, the U.S. Small Business Administration (SBA) issued an extensive final rule that made numerous revisions to its small business regulations, including limitations on subcontracting and compliance with small business subcontracting plans. (See 84 Fed. Reg. 65647-65666). This final rule, which becomes effective on December 30, 2019, implements provisions of the National Defense Authorization Acts (NDAA) of 2016 and 2017 and the Recovery Improvements for Small Entities After Disaster Act of 2015. The final rule makes multiple changes to the SBA’s regulations, the most significant of which are described below.

• DOJ Announces Government Procurement Collusion Strike Force

  11.14/Alert

  On November 5, 2019, the Department of Justice (DOJ) announced the formation of a new Procurement Collusion Strike Force (PCSF) focusing on deterring, detecting, investigating and prosecuting antitrust crimes, such as bid-rigging conspiracies and related fraudulent schemes, which undermine competition in government procurement, grant and program funding.

• Federal Circuit Decision Addressing Salary Costs Associated with Lobbying Activities Has Broad Implications

  10.24/Alert

  Imagine the following hypothetical: You are a Government contractor with cost-reimbursement contracts where the Government pays the costs of performance. You know that you cannot ask the Government to pay for lobbying costs (e.g., the costs of consultants who work to influence the outcomes of elections or legislation, and the costs of political contributions). Indeed, applicable regulations specifically call out such costs as being unallowable. Accordingly, you identify them as such in your incurred cost proposal. Suppose you also have employees who oversee some of these unallowable activities and interact with the consultants engaging them. In fact, if not for these unallowable activities, you would not have incurred a portion of these employees’ salaries. Are such salary costs unallowable? And if they are, will you be subject to penalties for requesting that the Government reimburse you for these costs? These are the types of questions addressed by the U.S. Court of Appeals for the Federal Circuit in Raytheon Co. v. Sec. of Def., 2018-2371 (Oct. 18, 2019). The court’s conclusions—based on a questionable interpretation of FAR 31.001—upend what had been established precedent at the Armed Services Board of Contract Appeals (ASBCA) ruling these costs were not expressly unallowable.

• Unique Facts Entitle Contractor to Recover Under Mutual Mistake Theory

  08.22/Alert

  On August 1, 2019, the Armed Services Board of Contract Appeals (ASBCA) held that the Air Force should bear the costs associated with a mutual mistake of fact in a contract between DynCorp International LLC (DynCorp) and the Air Force. This result suggests that the theory of mutual mistake of fact remains a viable one for contractors to consider and pursue.

• Recent U.S. Postal Service Board of Contract Appeals Decision Sheds New Light on “Holdover” Damages Available to Government Lessors

  06.10/Alert

  For many years, lessors of space to the federal government have struggled with the remedies available to them when the government continues to occupy the space after the expiration of the lease. Such “holdover” tenancies occur with some frequency, and the courts and boards have adopted disparate views with respect to the damages available to the lessor for such a holdover tenancy.

• GAO Highlights Responsibility Exception to “Late Is Late” Rule

  05/08/2019

  Under the Federal Acquisition Regulation (FAR) “late is late” rule, a government contractor’s proposal must be received by the government by the time stated in the solicitation. If a proposal document is even one second late, it cannot be accepted by the government. The FAR provides very limited exceptions to this rule. Specifically, it states that where a proposal is received before the award and the contracting officer determines that accepting it will not delay the procurement, the government may accept the untimely proposal if: (1) it was received electronically at the initial point of entry to the government infrastructure at least one working day before the proposal submission deadline, or (2) if it was under government control before the proposal submission deadline, or (3) if only one proposal was received. These narrow FAR-based exceptions apply infrequently.

• FAR’s Professional Compensation Clause and Keeping Things Real

  02.14/Alert

  On January 24, 2019, the Court issued its decision in Sparksoft Corporation v. United States, No. 18-1708C, holding that an agency is required to evaluate the realism of offerors’ proposed compensation plans under FAR 52.222-46, Evaluation of Compensation for Professional Employees, related to the entire contract, including the firm-fixed price (FFP). This case stems from a solicitation issued by the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), seeking proposals for information technology operations, maintenance, and ancillary support. The solicitation stated that the contract would consist of both FFP and time-and-materials components, and contained FAR 52.222-46.

• Government Contract Acquisitions and the Pending Proposal Problem

  02.13/Alert

  GAO’s recent decision in Wyle Laboratories Inc., B-416528.2, raises significant questions as to the viability of proposals that are submitted before or during, and remain pending after, a government contract acquisition. This is the second recent GAO protest decision that highlights the risks of certain government contract M&A deals to pending procurements, and the decision underscores the importance of strategic planning in connection with such deals.

• Congressional Blue-Ribbon Committee Recommends Major Changes to Certain Socioeconomic and Small Business Requirements for DoD Procurements

  01.29/Alert

  Section 809 of the National Defense Authorization Act (NDAA) for Fiscal Year 2016 directed the Secretary of Defense to establish a panel to study DoD’s procurement practices and recommend legislative and other changes aimed at modernizing those practices. The Panel has released the third volume of its final report, making a total of 58 new recommendations. As we noted in our overview of Volume 3 of the Panel’s report, a number of the recommendations relate to socioeconomic and small business issues. These recommendations attempt to streamline and improve the efficiency and effectiveness of the defense acquisition process by removing barriers to entry, revising outdated and burdensome requirements, and clarifying the preference for procuring commercial items when considering small business set-asides. We discuss Recommendations 64, 65, 79 and 80 below.

• Section 809 Panel Recommendations: Overhaul Audit Practices and Increase Reliance on Private-Sector Accounting Rules

  01.28/Alert

  As we reported previously, the Congressionally mandated Section 809 Panel (the Panel) recently issued Volume 3 of its Final Report. This volume builds upon the first two volumes of the Final Report by making additional recommendations for improving DoD’s acquisition process. This is the third of four alerts about the substance of Volume 3 of the Final Report. In this client alert, we explore recommendations regarding a broad range of financial issues at DoD.

• Section 809 Panel: The Commercialization of Government Contracting

  01.23/Alert

  As we previously reported, the Congressionally mandated Section 809 Panel recently issued Volume 3 of its Final Report. Volume 3 of the Final Report makes additional recommendations for improving the Department of Defense’s (DoD) acquisition process. This is the second of four alerts about the substance of Volume 3 of the Final Report. In this client alert, we explore recommendations that the DoD replicate the commercial contracting process.

• Civilian Board of Contract Appeals Releases 2018 Annual Report

  12.12/Alert

  This past weekend, the Civilian Board of Contract Appeals (CBCA) released its fiscal year (FY) 2018 Annual Report. The CBCA docketed 409 new matters in FY 2018, a modest increase from 385 docketed in FY 2017. Prior to FY 2018, the Board had experienced docket decreases for each of the previous five years. Also, for the first time since FY 2014, the number of new cases docketed during the year exceeded the number of appeals that the CBCA resolved.

• GAO Publishes Fiscal Year 2018 Bid Protest Statistics

  11.29/Alert

  On November 27, 2018, the Government Accountability Office (GAO) published its annual report on bid protest statistics. The GAO’s report, which is mandated by the Competition in Contracting Act, lists its key statistics for Fiscal Year 2018 bid protest activity. The GAO’s report also includes a chart providing similar bid protest statistics for Fiscal Years 2014-2018. This five-year snapshot provides some valuable insight into current bid protest trends and developments at the GAO.

• Pillsbury's Post-Election Outlook

  11.07/Alert

  The 2018 Midterm Election played out as most poll forecasters speculated. Although several races have yet to be decided, Republicans have retained control of the Senate, but lost at least 29 seats, allowing the Democrats to wrest back control of the House for the first time since 2010.

• 2018 Election Night Guide

  11.02/Article

  Pillsbury’s Political Law and Government Law & Strategies groups break down the need-to-know numbers for this year’s election. Pillsbury’s biennial Election Night Guide examines the potential outcomes for the 2018 Congressional and Governor’s races. Our Public Policy team is also preparing a post-election guide that will be useful in navigating potential changes in Congress.

• The Fiscal Year 2019 NDAA Imposes Government-Wide Limitations on the Use of Lowest-Price Technically Acceptable Procurements

  08.29/Alert

  Introduction
  The annual Department of Defense (DoD) authorization bill has long been used to impose government-wide procurement reforms that extend beyond the DoD. The recently enacted National Defense Authorization Act (NDAA) continues this tradition, by restricting civilian agencies’ use of the much-derided lowest price, technically acceptable (LPTA) procurement process, instead of the more fulsome best value trade-off process. The new NDAA now imposes limitations on the use of LPTA procurements that were previously imposed on the DoD and applies those limitations government-wide.

• DoD’s Enhanced Debriefings: GAO Provides Timeliness Guidance

  07.30/Alert

  In previous Client Alerts (found here and here), we have discussed the new rules issued by the Department of Defense (DoD) that significantly bolster the rights of government contractors to receive “debriefings” pursuant to Part 15 of the Federal Acquisition Regulation (FAR), following the award of defense contracts. The Government Accountability Office’s (GAO) recent decision in State Women Corporation, B-416510 (July 12, 2018) provides important new guidance regarding GAO’s timeliness rules in the context of these newly enhanced debriefings.

• New York Response to #MeToo: New Laws Target Sexual Harassment

  05/21/Alert

  Last month, Gov. Andrew Cuomo signed into law the 2019 New York State budget. The budget bill included a series of laws aiming to expand the scope of worker protections against sexual harassment, to limit employers’ ability to keep claims of sexual harassment confidential, and to increase employer and employee education on sexual harassment.

• New Proposed DoD Cyber Guidance May Fuel Bid Protest Docket

  05.16/Alert

  Department of Defense (DoD) cybersecurity requirements, referred to as Safeguarding Covered Defense Information and Cyber Incident Reporting went into effect at the start of the year, and have been met with an array of questions from contractors eager to comply, but unsure of the exact standards they are expected to meet. A long list of Frequently Asked Questions (FAQs) issued by DoD on April 2, 2018, has provided some clarity. However, significant areas of ambiguity remain, and language concerning a Contractor’s compliance with the new contract clause is finding its way into new contract solicitations. DoD has proposed guidance to answers some of those questions, and contractors will have until the end of May to provide feedback to the Government on how helpful—or unhelpful—the guidance is.

• DFARS Clause Blocks Funding for Unsafe Projects in Afghanistan

  04.25/Alert

  A new rule prohibits the use of funds for DoD construction and infrastructure programs and projects in Afghanistan that cannot be safely accessed by U.S. Government personnel.

• Changes Imminent for GAO Bid Protests

  04.04/Alert

  The Government Accountability Office is implementing several important changes to the bid protest process effective May 1. We summarize the most notable rule changes, from the electronic docketing system requirements to a new filing fee.

• Defenders of the Debriefing

  03.29/Alert

  New rules for all Department of Defense agencies expand offerors’ rights in connection with post-award debriefings in federal procurements, marking an important step in the direction of transparency and fairness.

• Proposals Should Carefully Address Pending Corporate Deals

  02.28/Alert

  For government contractors that may experience a change of ownership, a spinoff, or even a merger, three recent bid protest denials from the GAO are highly instructive.

• Administration Issues “Legislative Outline for Rebuilding Infrastructure in America”

  02.22/Blog

  The Trump Administration's legislative proposal to rebuild American infrastructure identifies a number of specific laws that will require amendments. Here is a brief review of some of the plans many provisions.

• SBA Proposed Rule Standardizes SDVO SBC Ownership & Control Standards

  02.07/Alert

  A new Small Business Administration rule aims to simplify prior qualification standards under Department of Veterans Affairs and SBA Service-Disabled Veteran-Owned Small Business Concerns programs.

• The 2018 Government Shutdown – How Can Contractors Preserve Rights?

  01.23/Alert

  Contractors suffered cost impacts and uncertainty during the recent three-day government shutdown. What happens if a long-term deal can't be reached?

• December 31, 2017 Deadline for Cybersecurity under DFARS 252.204-7012 Re-Interpreted

  12.20/Alert

  With the December 31 deadline for cybersecurity compliance just around the corner, the Department of Defense has clarified some of its expectations.

• Changes to Audit and Truth in Negotiations Act in FY 2018 NDAA

  11.20/Alert

  The 2018 NDAA Conference Report leaves little question that Congress remains unhappy with the Defense Contract Audit Agency’s (DCAA) audit backlog.

• Changes to Supply Chain Management and Commercial Item Contracting in FY 2018 NDAA

  11.20/Alert

  The latest National Defense and Authorization Act Conference Report proposes changes to supply chain management, the definition of a “subcontractor” and commercial item contracting that could impact your business.

• Two-Minute Warning: Preparing for a Possible Government Shutdown

  09.05/Alert

  For U.S. government contractors, the fallout from a threatened shutdown—let alone an actual one—ranges from inconvenient to disastrous. Businesses that derive significant profits from government contracting should consider a range of contingency planning options.