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  • 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 2017May 2018October 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 Public Policy 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.