Three’s Company: Court Decisions Clarify Company’s Role in FOIA Litigation Over Possible Release of Confidential Information
Two recent appeals court decisions highlight a company’s role in Freedom of Information Act (FOIA) litigation challenging the government’s decision to withhold the company’s information from public release. These types of FOIA lawsuits arise when the government refuses to release a company’s confidential information after a FOIA request and the requester challenges the action in federal court. In federal court, the government bears the burden of proving that the withheld information falls within a FOIA exemption, but the company that . . . Read More
PPP Loan Fall-Out: Expect More Audits and Investigations
Unfortunately, the PPP Loan fall-out is far from over. As we noted in the last blog on PPP issues , we are seeing a number of PPP Forgiveness denials for a number of different reasons, and, along with that, we are seeing the first audits and investigations as well. Specifically, companies that already received forgiveness for loans over $2M are being audited and investigated by SBA on a rolling basis. As part of that, SBA is asking for additional supporting documentation for the amounts claimed, . . . Read More
OHA Decision on Recertification May Impact Eligibility of Small Business Contractors Competing for Set-Aside Contracts
Over the past few years, the Small Business Administration’s (SBA) recertification rules have been the subject of much debate, with some arguing that recertification impacts an offeror’s eligibility for award and for future set-aside orders under multiple-award contracts (MACs). These rules came under further scrutiny in a recent size protest and appeal to the SBA Office of Hearings and Appeals (OHA). OHA’s decision makes a number of important clarifications regarding the impact of recertification on small business contractors’ eligibility to . . . Read More
PPP Loan Forgiveness Appeal Process: 4 Steps to Knowing and Protecting Your Rights
As discussed in PilieroMazza ’s previous alert , the Small Business Administration (SBA) released its Paycheck Protection Program (PPP) Loan Forgiveness application way back in May of 2020. Since then, PPP forgiveness continues to cause confusion among businesses, especially federal contractors. Since the release of the original forgiveness application, most PPP borrowers eligible for loan forgiveness have submitted for forgiveness and, most of those, have actually already received forgiveness as well. Unfortunately, we have started to recently see and uptick in loan . . . Read More
DOD Class Deviation Imposes New Requirements for Nonavailability Waiver Determinations Under the Buy American Statute
The Department of Defense (DOD) recently published a class deviation that builds on directives to promote an accountable and transparent procurement policy while maximizing Government use of goods, products, and materials produced in, and services offered in, the U.S. Specifically, the class deviation outlines steps that contracting officers (CO) should take as they make individual nonavailability waiver determinations under the Buy American statute. Such waivers can exempt an acquisition from meeting Buy American requirements. This blog identifies key aspects of the class . . . Read More
2021 GAO Bid Protest Annual Report: What the Report Reveals About Bid Protests at the GAO
The recently released 2021 Bid Protest Annual Report (Report) from the Government Accountability Office (GAO) covers cases filed with the agency, including protests, cost claims, and requests for reconsideration. In this blog, PilieroMazza analyzes what the Report reveals about bid protests at the GAO, including how the information could affect a contractor’s decision to file a protest and its likelihood of success. Analysis of the Report The Report shows the number of cases filed is down by 12% when comparing 2021 to 2020 (1,897 cases in . . . Read More
Establishing Irreparable Harm in Bid Protests: Does the Value of the Lost Opportunity Really Matter?
In a recent bid protest, A.T. Kearney Pub. Sector & Def. Servs., LLC v. United States, [1] the U.S. Court of Federal Claims (COFC) created a wrinkle in its precedent when it denied the protester’s motion for a preliminary injunction. While obtaining permanent injunctive relief is arguably the most important goal of any bid protest brought at the COFC, obtaining preliminary injunctive relief, a stay of award or performance while the protest is resolved, can sometimes be equally significant for business . . . Read More
2022 NDAA Makes Significant Changes to Federal Procurement Policy
On December 27, 2021, President Biden signed the FY22 National Defense Authorization Act (NDAA) into law, authorizing more than $700 billion in defense spending. The NDAA also contains several provisions that shape federal procurement policies and forecast areas that Congress believes warrant attention in the future. PilieroMazza examines three themes in this year’s NDAA that contractors should know to take advantage of contract opportunities and maintain compliance requirements. 1. Continued Support for Domestic Preferences and Supply Chain Security Congress sent a clear signal that it supports . . . Read More
DOD Releases CMMC 2.0 Framework Documentation
Earlier this month, the Department of Defense (DOD) released the new Cybersecurity Maturity Model Certification (CMMC) 2.0 framework, along with the self-assessment guides for the new Levels 1 and 2, scoping guidance for all Levels, and other helpful tools for contractors seeking to perform self-assessments. Each of these documents is available on DOD’s CMMC website under the Documentation tab. Here are key highlights from DOD’s CMMC 2.0 Documentation for small and mid-sized defense contractors. These documents signal some major departures . . . Read More
Don’t Delay: How the Harmonia Decision Impacts Contractors’ Ability to Win Protests
A highly anticipated decision recently issued by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) represents the latest development in the Blue & Gold [1] line of precedent regarding the timeliness of bid protest filings before the U.S. Court of Federal Claims (COFC). In Harmonia Holdings Group, LLC v. United States (Harmonia), issued on December 7, 2021, the Federal Circuit held that a timely filed, pre-award, agency-level protest preserves an offeror’s ability to later file the same protest . . . Read More