GAO Reports On Government Contracting Trends
On March 8, 2017, GAO issued a report on government contracting trends from fiscal year (“FY”) 2011 through FY 2015. FY 2015 was the latest year for which there was complete data available at the time of GAO’s review. Using data from the Federal Procurement Data System-Next Generation, GAO tabulated statistics which will be of interest to government contractors. Discussed below are some of GAO’s findings. First, in FY 2015, federal agencies procured $438 billion in products and services. This . . . Read More
Whistleblowers Win Again: Your Confidentiality Agreements May Not Keep Your Information Safe
Imagine how you might react if an employee who agreed to keep your information confidential made it public, submitted it to a court as evidence in a public forum, or disclosed it to a jury. Furious may not even begin to describe it. Perhaps you would even seek legal recourse against that employee. But then you peel back a layer and find that the employee is claiming whistleblower status and arguing they should be protected from any such legal violations . . . Read More
Is Mediation Right for Your Dispute?
By Ambi Biggs You’ve probably heard that few cases that are filed in court actually are resolved by a trial. Although reported statistics vary, most depict that upwards of 90 percent of litigation results in a pre-trial settlement. These settlements can occur within days of the lawsuit being filed, after the discovery process has concluded, or even right on the steps of the courthouse as the parties arrive for trial. Considering the prospects of actually litigating a case to the . . . Read More
Congress Overturns Fair Pay Safe Workplaces: GOP Deregulation Continues
Government contractors concerned over the potential impact of President Obama’s 2014 Executive Order 13673 “Fair Pay and Safe Workplaces” (EO) can breathe a sigh of relief. On March 6, 2017, the US Senate narrowly approved House Joint Resolution 37 (H.J. Res. 37), which overturns the EO in its entirety. All that remains now is for President Trump to sign the resolution into law, and with the stroke of a pen, years of debate and vitriol over the costs and constitutionality . . . Read More
Are Agencies Ignoring SBA’s Application of the Nonmanufacturer Rule to Resellers of Major Commercial Software?
Early last year, on January 26, 2016, SBA issued a new requirement that IT Value Added Resellers (“ITVAR”) under the footnote/exception to NAICS Code 541519 have to comply with the nonmanufacturer rule when reselling software under that code. Thus, according to the rule, any ITVAR must provide software that is manufactured (i.e., developed) by a small business unless a waiver of the nonmanufacturer rule is requested by the contracting officer and granted by SBA for each and every ITVAR procurement. . . . Read More
SBA Size Standards Under the Microscope
?SBA’s size standards are one of the agency’s most important metrics. The size standards draw a bright line between small and large businesses for each industry by NAICS code. A firm that is below the size standard for its industry is eligible to pursue federal contracts and programs reserved for small businesses. And small businesses are also exempt from other rules that would otherwise apply to federal contractors. So how and where SBA draws the size line for each industry . . . Read More
Transactional Data Reporting: Brave New World
By Katie Flood As part of its Category Management initiative, the U.S. General Services Administration (“GSA”) has piloted the Transactional Data Reporting rule (“TDR”), which is meant to provide a greater degree of transparency into the federal and commercial marketplace practices of GSA Schedule contractors. The TDR is meant to remove burdensome tracking and reporting supplier requirements from the Price Reductions Clause (“PRC”) and Commercial Sales Practices (“CSP”), as contractors will now be required to report data on a transactional . . . Read More
2016 GAO Bid Protest Annual Report: Sustain Rate Hits Nine Year High, Up More Than 10 percent from 2015
By Megan Connor This article originally appeared in the First Quarter Legal Advisor. GAO recently released its annual report to Congress, which included data concerning its protest filings for the fiscal year 2016. Based on the data, 2016 was a historic year. GAO not only decided more cases on the merits in 2016 than in any prior year, dating back to 2001, but it also sustained more cases in 2016 than in any year during that same period. It is . . . Read More
Small Business Valuation — What Is It And Why Does It Matter?
By Michael A. de Gennaro Government contractors who have built successful businesses over a period of time often neglect to answer one simple question until very late in the game. The question, “What is my business worth?” has far-reaching implications and comes up in a number of scenarios, such as the sale of the contractor’s business, the creation of long-term incentive plans for employees, estate/business succession planning, and death/divorce of an owner. At least monthly, we receive a call from . . . Read More
Keep an Eye Out for Identity of Interest Affiliation
By Julia Di Vito Anyone who does business with a small business government contractor will always want to be aware of any potential bases for affiliation that might arise. However, the so-called “identity of interest” affiliation, as described in 13 C.F.R. § 121.103(f), is a particularly easy type of affiliation for a firm to have and not even realize it. It is important to be aware of the way identity of interest affiliation can be found and how to avoid . . . Read More