BLOG: A Thank You to the Small Business Administration: SBA Takes a Stand on OIG’s Approach to Suspension and Debarment
The ability to suspend and debar contractors is a tool the federal government can deploy when necessary to protect it from unscrupulous contractors. Critically, it is not intended to be used punitively. The reason for this is clear, especially when dealing with small businesses: if you debar or suspend a company without evidence that it is not a responsible contractor, you risk destroying part of the United States’ industrial base and numerous jobs that Americans rely on without good cause. Too often . . . Read More
BLOG: Government Contractor Acquisitions and Clearances: Deal Structure Matters
Our Corporate and Government Contracts attorneys often counsel contractors interested in acquiring an entity with a clearance or assets used on a classified contract. The clearance is a consideration in the transaction that cannot be overlooked. Indeed, the clearance is often one of the seller’s most important “assets.” Buyers and sellers alike should be aware of the National Industrial Security Program Operating Manual (“NISPOM”) requirements. For instance, if the acquisition is a stock purchase and the buyer holds the acquired firm as a subsidiary, the NISPOM states that, . . . Read More
BLOG: Buyer Beware: More Stringent Standards for Government Contractors under the Buy American Act on the Horizon
President Trump has made “buy American and hire American” a key goal for his administration. To that end, the President has signed three executive orders to impose stricter enforcement of the Buy American Act (BAA), the latest of which was issued on July 15, 2019. While this new Executive Order on Maximizing Use of American-Made Goods, Products, and Materials (the Executive Order) does not have any immediate effect on federal procurements, it proposes significant changes to the Buy American requirements, and government contractors would be wise to keep abreast of the . . . Read More
BLOG: Start Preparing Now for DoD’s Upcoming Cybersecurity Maturity Model Certification (CMMC)
For a while now, we have been writing about the increasing impact of cybersecurity on the government contracting world, which, as Jon wrote, has become the “ fourth pillar ” of Department of Defense (DoD or the Agency) acquisitions. The latest evidence of this was discussed by our colleague, Dave Shafer, in his recent blog discussing a new DoD cybersecurity certification. This certification, called Cybersecurity Maturity Model Certification or “CMMC,” will significantly alter the DoD-acquisition landscape next year. Indeed, when this certification requirement comes . . . Read More
BLOG: Impact of DOL’s Changes to FLSA Salary Basis Test on Government Contractors and Commercial Businesses
On September 24, 2019, the Department of Labor (DOL) announced its final rule to change the Fair Labor Standards Act’s (FLSA) salary basis test, which is integral to classifying an employee as exempt from overtime payments. In order to designate an employee as FLSA overtime exempt, an employer must ensure that the employee meets both a salary basis test, which establishes a salary threshold, and a duties test, which establishes the types of responsibilities and knowledge required to be eligible for an . . . Read More
BLOG: Minimum Wage for Government Contractors Increases January 1, 2020
Executive Order 13658, Establishing a Minimum Wage for Contractors (the Order) established a minimum wage for employees working on, or in connection with, covered government contracts. Each year, the Department of Labor (DOL) assesses the established minimum wage and, using determined methodology, announces an increase. On September 19, the DOL announced [1] the rate would increase to $10.80 per hour on January 1, 2020. The required minimum cash wage that generally must be paid to tipped employees performing work on, or in connection with, covered . . . Read More
BLOG: Small Businesses and the FCA: Are More FCA Cases Against Small Businesses on the Horizon?
On August 20, 2019, the U.S. Department of Justice announced that it had reached a $20 million settlement with Luke Hillier (Hillier), the majority owner and former CEO of a Virginia-based defense contractor, ADS, Inc. (ADS), to resolve “allegations that he violated the False Claims Act (FCA) by fraudulently obtaining federal set-aside contracts reserved for small businesses that his company was ineligible to receive . . . .” The resolution of the claims against Hillier follows ADS’s payment of a . . . Read More
BLOG: Protégé Subcontract Revenues from Mentor Hold No Basis for Economic Dependence
An important benefit of a mentor-protégé agreement (MPA) is that no determination of affiliation may be found between a protégé and its mentor solely because of assistance provided under the agreement. A recent decision of the Small Business Administration (SBA) Office of Hearings and Appeals (OHA), Avar Consulting, Inc., [1] upheld a size determination which found that a protégé was not affiliated with its SBA-approved mentor through economic dependence, even though the revenues it received from the mentor constituted over 70% of . . . Read More
BLOG: 5 Things Government Contractors Should Know About Task Order Protests
With the fiscal year coming to a close, federal agencies are issuing notices of award and disappointed offeror letters. Because of the push toward category management and the growth in government-wide acquisition contracts (GWAC) and indefinite delivery, indefinite quantity (IDIQ) contracts, many of the procurements involve task orders. Although a task order may be similar to a contract in many respects, the rules that apply to protesting the award of a task order are different. Understanding these rules is essential for . . . Read More
BLOG: Late Is Late—Even on the GSA Schedule
In a recent blog , we discussed the “late is late” rule in government contracting which has been the cause of many protests and much consternation among government contractors. However, the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) have consistently held that it is proper for an agency to reject a late offer, even if the offer is only slightly late. Recently, COFC applied this rule to a General Services Administration (GSA) Schedule purchase—specifically in Criterion Systems, . . . Read More