U.S. Treasury Issues Guidance on CFIUS Enforcement and Penalties
On October 20, 2022, the U.S. Department of the Treasury (Treasury) released the Committee on Foreign Investment in the United States (CFIUS or the Committee) Enforcement and Penalty Guidelines (the Guidelines ). The Guidelines describe (1) three categories of conduct that may constitute as CFIUS violations, (2) the Committee’s process for imposing penalties, and (3) factors the Committee considers when determining whether a penalty is warranted and the scope of such penalty. Since this is the first time the Treasury released . . . Read More
Prohibition on Use or Delivery of Chinese Telecommunications and Video Surveillance Products and Services: The Potential Link Between Section 889 of the 2019 NDAA and Section 1260H of the 2021 NDAA
Over the past few days, PilieroMazza received a number of inquiries related to our recent posting entitled DOD Releases New List of Section 889 Banned Entities . In that post, we discussed how DOD recently released a new list of entities determined by DOD to be deemed “Chinese Military Companies.” This release was not made under Section 889 of the 2019 NDAA but instead under Section 1260H of the 2021 National Defense Authorization Act (NDAA). This caused confusion related to the potential intersection of the two laws and whether one . . . Read More
SBA Proposes Revisions to Ownership and Control Requirements for the 8(a) Business Development Program
As PilieroMazza noted recently here , the Small Business Administration (SBA) released a major proposed rulemaking that will impact government contractors, primarily those that are participants in the 8(a) Business Development Program. PilieroMazza has posted a series of blogs regarding SBA’s proposed rulemaking, and this client alert highlights some of the proposed changes that pertain specifically to the 8(a) Program. Ownership and Control As you may be aware, there are certain ownership restrictions on an 8(a) firm. One of the restrictions . . . Read More
Potential Changes on the Horizon for DOT’s Disadvantaged Business Enterprise Program
The Department of Transportation’s (DOT) Disadvantaged Business Enterprise (DBE) Program is in the midst of a major overhaul that would update, streamline, and clarify existing rules, strengthen implementation, and increase reporting requirements. The DOT’s DBE Program allows small businesses owned by socially and economically disadvantaged individuals to tap into billions of dollars’ worth of contracting opportunities issued at the state and local level through federally-funded infrastructure projects. On July 21, 2022, DOT issued a notice of proposed rulemaking (Rule) which presents the biggest potential . . . Read More
Overcoming the Inflation Crisis: The Ins-and-Outs of Extraordinary Contractual Relief for Government Contractors
An all-but-forgotten remedy in government contracting, Extraordinary Contractual Relief (ECR) , is in the midst of a potential resurgence due to the Department of Defense’s (DOD) most recent memorandum on inflation entitled Managing the Effects of Inflation with Existing Contracts . As PilieroMazza previously discussed , the current inflation crisis prompted DOD to suggest that, subject to the availability of funds, contractors should seek ECR when seeking an upward adjustment to the price of an existing firm-fixed-price contract. If you are a government contractor impacted by inflation while performing a contract, see below for the ins‑and‑outs . . . Read More
DOD Releases New List of Section 889 Banned Entities
On October 5, 2022, the Department of Defense (DOD), in compliance with Section 889 of the National Defense Authorization Act for Fiscal Year 2019, released an updated list (Blacklist) of banned People’s Republic of China (China) military companies. PilieroMazza recently wrote about Part B of Section 889 taking full effect for DOD contractors on October 1, 2022. Section 889 is a broad prohibition to the use of any covered Chinese technology posing a threat to U.S. cybersecurity and national security. Section 889 . . . Read More
New SBA Rule Enhances Past Performance Opportunities for Small Businesses
On August 22, 2022, the U.S. Small Business Administration (SBA) will implement a final rule that provides two new methods by which small businesses can obtain past performance credit when competing for federal prime contracts. First, the rule allows certain small business offerors to rely on the past performance of joint ventures (JV) in which they were a member. Second, the rule establishes a process by which certain small businesses can request, obtain, and rely upon past performance obtained when performing as a . . . Read More
Transitioning from DUNS to UEI: Elevating Government Contract Service Tickets and Sharing Your Questions
As government contractors are all too aware, the transition from DUNS numbers to the SAM assigned Unique Entity Identifier (UEI) is causing a myriad of problems, which are jeopardizing contractor payments, awards, and ability to bid on opportunities. Since the April 4, 2022, implementation of the SAM assigned UEI and entity validation through SAM, PilieroMazza is seeing a wide range of SAM registration and renewal issues resulting in numerous entities’ SAM registrations expiring and new joint ventures unable to register . . . Read More
5 Key Ways a Contractor Can Be Subject to a Government Claim
The performance of any government contract by a contractor has the potential to bring certain monetary risks of a government claim against the contractor. Below, we discuss 5 key ways a government contractor can be subject to a government claim and best practices to reduce your risks. 1. Overpayment A common type of government claim is based upon what the government considers to be an overpayment on its part. For example, an agency might have paid an invoice where the . . . Read More
Small Business Set Asides Now Allowed Outside the U.S.: What You Need to Know
Effective May 26, 2022, the Federal Acquisition Regulation (FAR) gives contracting officers the discretion to apply the Small Business Act (Act)—implemented by FAR Part 19—outside the United States and its outlying areas. This final rule (Rule) could create significant business opportunities for small business government contractors capable of competing for overseas procurements. By way of background, the Small Business Administration (SBA) has consistently taken the position that the Act is not geographically limited and, as a result, FAR Part 19, should . . . Read More