Plan Your Success – the LOI
By Dana Livne During our April 26, 2017 webinar, we discussed Letters of Intent (LOI) and the important role they can play in transactions. The LOI often serves as a roadmap or initial term sheet between a buyer and seller. The LOI is generally “non-binding”, meaning that the parties may deviate from its terms. The purchase price, due diligence process milestones, and financing terms are examples of non-binding provisions that may be subject to negotiation as the deal progresses. . . . Read More
Earn-Outs in M&A Transactions: Red Flag Issues that Government Contractors Should Avoid
By Michael A. de Gennaro Government contractors who wish to grow by purchasing an existing business are aware of one simple truth: The value of the target is linked directly to its ability to transfer its existing contracts. If there is a high risk profile—for example, if assets of the target are subject to novation in connection with the acquisition—then a purchaser is likely to seek either a downward adjustment in the purchase price or to propose deferred compensation, such . . . Read More
Understanding Government Contract Terminations
It is important for prime contractors to understand what it means if its contract with the Federal Government is terminated and what rights and obligations it has. Nearly every Government contract contains a clause allowing the Government to terminate a contract either for convenience or for default (also known as for cause). The Government may terminate your contract, or a portion of your contract, for convenience when it is in the Government’s interest. Essentially, this means that the Government has made . . . Read More
Get a Handle on Changing Leave Laws
Picking up work across states can be challenging for any employer, particularly with respect to employment law, and it’s not getting any easier. Recently, a number of states and localities are proposing and passing sick and family leave laws, each with differences, making it challenging for employers to comply with and pay for the additional benefit. States are motivated by the federal government’s failure to address paid sick and family leave broadly at the federal level. As a result, states . . . Read More
Government Asking for More Transparency on Federal Contracts Over 150K
By Dana Livne and John Shoraka For years the federal government has attempted to increase transparency in the federal marketplace and last month, U.S. Senators Claire McCaskill (D-MO) and Jon Tester (D-MT) introduced a bill that would require the posting online of the exact details of all government contracts worth $150,000 or more. The bill, “Contractor Accountability and Transparency Act of 2017”, seeks to implement a “machine-readable, searchable copy of each covered contract entered into by a Federal agency”. If the . . . Read More
4th Circuit Sets Forth Test for Determining What Constitutes “Joint Employer” for FLSA Purposes
In a pair of recent cases, the U.S. Court of Appeals for the 4th Circuit (which hears appeals from the federal courts of Maryland, Virginia, West Virginia, North Carolina and South Carolina) has set forth what will hereafter be the applicable test in those jurisdictions when determining whether two or more entities constitute “joint employers” for purposes of the Fair Labor Standards Act (“FLSA” or “the Act”). The FLSA, 29 U.S.C. §§ 201, et seq., requires employers covered by the Act . . . Read More
What Every Contractor Should Know About Requests for Equitable Adjustment
By Michelle Litteken Government contractors quickly learn to expect the unexpected. While working on a construction contract, a contractor may encounter undisclosed utility lines 15 feet underground. Or, an information technology support contractor may be asked to comply with heightened security requirements without being given a contract modification. These changes increase the cost of performance and can put a small business in a precarious position. In situations like this, many contractors file a request for equitable adjustment (“REA”), seeking additional . . . Read More
Seventh Circuit Rules That Sexual Orientation is a Protected Class Under Title VII
On April 4, 2017, the United States Court of Appeals for the Seventh Circuit ruled that a part-time math instructor at Ivy Tech Community College in Indiana could sue her former employer under Title VII of the Civil Rights Act of 1964 for failing to promote, then terminating, her because she is a lesbian. Title VII protects an individual from discrimination in employment based on that individual’s “race, color, sex, or national origin,” but it does not specifically delineate that . . . Read More
CVE Extends Verification Eligibility Period: What This Means for VOSBs
Last week, the Department of Veterans Affairs (“VA”) final rule extending the eligibility period for participation in the VA VetBiz Vendor Information Pages (“VIP”) Program took effect. The final rule extends the verification eligibility period from two to three years. For those service-disabled-veteran-owned small businesses and veteran-owned small businesses (“VOSBs”) wondering what they need to do to take advantage of an additional 12 months of eligibility, the answer is nothing. All VOSBs listed in the VIP database as of March . . . Read More
Understanding the Extended Surviving Spousal Protections for SDVOSBs
By Marc Langston A surviving spouse, who is not a Service-Disabled Veteran, must satisfy specific criteria in order to continue running a company as though it remained a Service-Disabled Veteran-Owned Small Business (“SDVOSB”). This right is not automatic, and failure to meet the eligibility criteria will prevent a surviving spouse from being able to run the decedent’s company as a SDVOSB. It is important to consider that there are two separate SDVOSB set-aside programs. The older program, the Service-Disabled Veteran-Owned . . . Read More