BLOG: Reselling Laptops and Tablets to the Federal Government Just Got Easier

The Small Business Administration (SBA) issued a class waiver of the non-manufacturer rule (NMR) on March 9, 2020. Effective April 8, 2020, it waives the NMR for commercially available off-the-shelf (COTS) laptop and tablet computers. The waiver is great news for small business resellers in the IT industry because the waiver will make it easier for these small businesses to comply with the NMR when reselling COTS laptops and tablets to federal agencies. For some background, the NMR is an exception to . . . Read More

BLOG: 8(a) Contractors: To Suspend or Not Suspend In Light of COVID-19

If you are an 8(a) contractor, you may have received a notification from your Business Opportunity Specialist regarding a voluntary suspension due to the March 13, 2020 declaration of a national emergency concerning the COVID-19 outbreak . Covered below are considerations for 8(a) government contractors before they decide to suspend or not to suspend their participation in the 8(a) program. SBA regulations provide a process by which 8(a) contractors may voluntarily elect to suspend their participation in the 8(a) program for a period of up to one year from the date of . . . Read More

BLOG: JEDI Protest Update: Pentagon Relies on Blue & Gold Fleet to Do Away with AWS’s Allegations of Bias

Oftentimes, a decision not to file a pre-award protest can leave an unsuccessful offeror without an opportunity to be heard at the Court of Federal Claims (COFC). However, the extraordinary circumstances surrounding the JEDI Contract and the Trump Administration’s ongoing, publicized aversion to Amazon could save Amazon Web Service’s (AWS) bias allegations against the Pentagon from an early dismissal. Since filing its protest with the COFC in November 2019, AWS has continued its aggressive attack on the Pentagon’s decision to . . . Read More

BLOG: The Service Contract Right of First Refusal Rules Continue to Fall Away

On January 31, 2020, the Federal Register announced that the U.S. Department of Labor (DOL) rescinded the service contractor “right of first refusal” regulations at 29 C.F.R. Part 9. [1] This was done to implement the President’s October 31, 2019 revocation of the 2009 Executive Order No. 13,495, Nondisplacement of Qualified Workers Under Service Contracts (Nondisplacement Rules). DOL’s move was primarily administrative in nature, given that the President’s revocation order commanded Executive Agencies to stop enforcing the rules.  Generally speaking, Nondisplacement Rules . . . Read More

BLOG: DOJ Inside Access Highlights 4 Things to Expect from the False Claims Act in 2020

Several weeks ago, my colleague Matt Feinberg highlighted “ 4 Issues That Defined the False Claims Act (FCA) in 2019 ” and made predictions about anticipated FCA trends for 2020. At the recent 2020 Advanced Forum on False Claims and Qui Tam Enforcement, Department of Justice (DOJ) Deputy Associate Attorney General Stephen Cox (AG Cox) offered inside access to DOJ’s prospective priorities in enforcing and reforming the FCA for 2020 . Below, we review the DOJ’s resolutions, which allow us to better anticipate and understand issues government contractors may face under the FCA moving forward. Continue qui tam Enforcement Efforts In 2019, we saw . . . Read More

BLOG: SBA Issues FAQs on New HUBZone Program Rules

Earlier this month, the Small Business Administration (SBA) issued its answers to  frequently asked questions  (FAQs) concerning the new rule changes to the HUBZone Program. These FAQs follow the December 26, 2019 effective date of the new HUBZone rules, and should be helpful for current and potential HUBZone firms. The FAQs address common confusions in the new rules.  For instance, SBA answers how to take credit for an employee who resided in a HUBZone as of the date of certification and for 180 . . . Read More

BLOG: Teva Pharmaceuticals to Pay $54 Million to Settle Healthcare-Based FCA Claims

A qui tam False Claims Act (FCA) action brought by two whistleblowers alleging violations of the Anti-Kickback Statute (AKS) has resulted in a $54-million settlement from Teva Pharmaceuticals USA, Inc. and two subsidiaries (Teva) in the case of United States ex rel. Arnstein and Senousy v. Teva Pharmaceuticals USA, Inc. Although it was alleged that the federal government and various state and local governments suffered damages as a result of Teva’s actions, they declined to intervene in the case. Teva’s . . . Read More

BLOG: Federal “Ban-the-Box” Law: The Fair Chance Act to Limit Criminal Background Inquiries by Federal Contractors

On December 17, 2019, the Senate passed the National Defense Authorization Act (NDAA) for Fiscal Year 2020, which was subsequently signed by the President. As part of the NDAA, the government enacted the Fair Chance to Compete for Jobs Act of 2019 (the Fair Chance Act or Act), which prohibits federal agencies and federal contractors from requesting criminal background information from job applicants prior to extending an offer, with a few exceptions. The Fair Chance Act goes into effect on . . . Read More

BLOG UPDATE: Default Terminations – ASBCA Lacks Jurisdiction Over Excusable Delay, Constructive Change Defenses Not Presented to Contracting Officer for Final Decision

PilieroMazza previously explained that a termination for default is considered a contracting officer’s final decision, which may then be appealed. While this is still the case, a recent decision from the Armed Services Board of Contract Appeals (ASBCA) highlights the importance for prime contractors—especially those who anticipate that their contract may be (or already has been) terminated for default—to preserve all relevant defenses to termination in advance of an appeal to the Board of Contract Appeals or Court of Federal Claims. . . . Read More

BLOG: Important Considerations When Structuring M&A Transactions for Government Contractors: Pre-Transaction Part 1 of a 3-Part Series

M&A transactions involving government contractors carry several regulatory and industry-specific considerations that can materially impact all aspects of the deal—from high-level structuring considerations to risk allocation for compliance issues to additional administrative checklist items. If neglected or overlooked, they can result in major headaches. This three-part series outlines certain key issues to consider before, during, and after transactions involving government contractors. Pre-Transaction: Novation The Anti-Assignment Act (41 U.S.C. § 6305) generally prohibits companies from selling government contracts. However, the Federal . . . Read More