Can a MAC Awardee Protest Another Contractor on the Same IDIQ?
By Alex Levine While traditionally a bid protest involves a losing offeror challenging the award of a contract to another offeror, occasionally winning offerors on a multiple award contract (MAC) have sought to challenge the government’s issuance of another award to an offeror on the same MAC. These types of protests have historically been rejected by both the Court of Federal Claims (COFC) and the U.S. Government Accountability Office (GAO), which have held that the winning offeror does not have . . . Read More
Contracting Globally – Part 2: International Traffic in Arms Regulations
By Kimi Murakami There are two major regimes that govern exports from the United States. One is the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce’s Bureau of Industry and Security and, second, the International Traffic in Arms Regulations (“ITAR”) enforced by the U.S. Department of State’s Directorate of Defense Trade Controls (“DDTC”). A recent blog article discussed EAR compliance and this blog will address the requirements of ITAR. Similar to issues relating to EAR discussed in . . . Read More
GAO Clarifies Rules Regarding the Use of Key Personnel Past Performance
In March 2015, GAO issued a decision in Recogniti, LLP, B-410658 (January 21, 2015), whereby it upheld the agency’s reliance upon individual past performance references for the owner of a small and relatively new company. GAO noted that the FAR allows agencies to credit a company for the past performance of an owner if that owner is proposed as a key employee for the work to be performed. As a follow-up to a blog article we wrote on this topic last year, we felt it necessary to point out another . . . Read More
VA Required to put Veterans First in Kingdomware Supreme Court Decision
In a big win for veteran-owned small businesses, the Supreme Court today ruled unanimously in favor of Kingdomware Technologies, Inc., in its case against the Department of Veterans Affairs (“VA”). Kingdomware had brought suit challenging the VA’s failure to set aside an order under the Federal Supply Schedule (“FSS”) for veteran-owned small businesses. In the ensuing litigation, the VA took the position that it was not required to reserve FSS orders for SDVOSBs or VOSBs because the mandates of the . . . Read More
How Much Disability Accommodation Leave Do You Have to Provide to Employees? Questions Remain Despite New EEOC Guidance
By Corey Argust For some time, federal courts have concluded that granting leave to an employee may be a reasonable accommodation for a disability under the Americans with Disabilities Act (“ADA”). On May 9, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance regarding when and how employers must grant leave under the ADA. The guidance marks the first time since 2002 that the EEOC has provided additional insights on the often-confusing requirements for providing leave to employees . . . Read More
No Advance Notice is Required to Terminate At-Will Employment in Virginia
By Ambi Biggs On June 2, 2016, the Virginia Supreme Court resolved a split among the lower courts and the federal district courts in Virginia regarding the notice employers are required to provide at-will employees prior to terminating them. In Johnston v. William E. Wood & Associates, the plaintiff worked at a real estate services firm for 17 years as an at-will employee. When her employer terminated her without any advance notice, she brought suit, alleging that she was wrongfully discharged . . . Read More
Contracting Globally – Part 1: Export Administration Regulations
By Kimi Murakami The potential for government contractors to grow and become successful outside of the U.S. is tremendous and should not be overlooked by small businesses. The world outside our borders is a critical marketplace that should be considered as part of the growth strategy for domestic companies. According to the International Trade Administration of the U.S. Department of Commerce: more than 70 percent of the world’s purchasing power is located outside of the United States companies that export . . . Read More
What is Technical Data and How Do You Protect It
This article is the second installment in a series on Data Rights in Federal Contracts. We first wrote about what data rights were . In this second installment, we will discuss the first contractor-produced item in which the government often takes rights that extend long after contract close-out: “non-commercial technical data.” Technical data, as defined by the FAR, is “recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer databases and computer software documentation).” See FAR 52.227-14; DFARS 252.227-7013. . . . Read More
False Claims Act Penalties Set for Significant Increase Later This Year
Liability under the False Claims Act (“FCA”) results in the imposition of treble damages and penalties. Government contractors should be aware that the mandatory penalties for FCA violations may nearly double starting in August of 2016. On November 2, 2015, President Obama signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Public Law 114-74) (the “2015 Act”). The 2015 Act requires federal agencies to issue regulations adjusting civil monetary penalties for inflation . . . Read More
2016 SBA Issues Final Limitations on Subcontracting Rule
Today, SBA issued its final rule to implement provisions of the National Defense Authorization Act of 2013, which pertains to the limitations on subcontracting (“LOS”) applicable to small business set-aside contracts, socioeconomic program set-aside contracts, and small business subcontracting. SBA issued this rule after considering all comments provided in the rulemaking and, while we are still reviewing the rule in more detail, we are pleased that the rule accounts for concerns raised during the rulemaking process and is not as . . . Read More