A Refresher on the Non-Manufacturer Rule
By Katie Flood Unless you are a small business regularly engaged in selling supplies to the U.S. Government, you may have only a passing familiarity with the requirements of the Non-Manufacturer Rule (NMR). The NMR is an exception to the usual requirement that contractors supplying goods to the government perform at least 50 percent of the cost of manufacturing the items. A manufacturer is a business concern that, with its own facilities, performs primary activities in transforming organic or inorganic . . . Read More
“March-in” Rights – The (Paper) Damoclean Sword of Federal Procurement Patent Law
Given the recent PilieroMazza webinar on Data Rights in federal contracting , we have had a number of clients raise concerns or questions about the government’s “march-in” rights under the Bayh-Dole Act, which controls certain data rights and patent issues under federal contracts. For those of you who do not already know, for patentable items created under federally-funded contracts, the government has the right to force the contractor who holds the patent to issue a license to third parties, including competitors, under certain conditions. As we will see, . . . Read More
Not So Far Out: OMB Memo Indicates Cybersecurity FAR Clauses Are Coming Soon
On August 11, 2015, the Office of Management and Budget (“OMB”) released a draft policy memo entitled “Improving Cybersecurity Protections in Federal Acquisitions.” The purpose of the memo is to provide federal agencies with guidance to implement stronger cybersecurity protections in federal acquisitions for products or services that generate, collect, maintain, disseminate, store, or provide access to Controlled Unclassified Information (“CUI”). OMB is seeking public comments and suggested revisions by September 10, 2015, and expects to issue the final guidance . . . Read More
Letter of Intent: A Seller’s Friend or Foe?
For a business owner, the sale of the company is the final act in the life cycle of the company (TargetCo). It represents the business owner’s opportunity to cash out on and be rewarded for his or her vision, ingenuity, years of hard work, sacrifice and risk-taking. Typically, after some confidential discussions and limited sharing of a TargetCo’s financial and non-financial information, a critical, next step in the sale process is negotiating and entering into a letter of intent (LOI) . . . Read More
Claims Webinar Series: Contract Terminations
Presented by: Jon Williams and Michelle Litteken.
No Longer on Hold: SBA Resumes 7(a) Lending to Small Businesses
The 7(a) lending program is back on track. Last month, President Obama signed into law a bill that would raise the SBA’s lending authorization ceiling to $23.5 billion for its flagship lending program. With the bill’s signing, the SBA resumed loan approvals and small businesses are again able to get loans backed by the federal government. On July 23, 2015—just a few days before the president put pen to paper—the SBA maxed out its $18.75 billion lending limit for small . . . Read More
Government Contractors Beware: Trying to Fit A Square Peg into A Round Hole
By Kimi Murakami What may be standard in the corporate world can severely disrupt set-aside status in the highly-regulated government contract space. Take the recently-decided case of Precise Systems. This decision presents another cautionary tale of why it is so critical for contractors to understand the SBA rules–or to talk to lawyers who do–before entering into corporate restructuring transactions. In the final decision issued by Chief Judge Patricia Campbell-Smith in the case of Precise Systems, Inc. v. U.S., No. 14-1174C (Fed. Cl., . . . Read More
Comments on the Proposed Rule Regarding Small Business Subcontracting Improvements
Includes: Establishing subcontracting goals in terms of total contract dollars Contracting officers discretion Prime contractor responsibilites
Ninth Circuit Eases Ability for Whistleblowers to Bring Qui Tam Actions
In an important development under False Claims Act (“FCA”) case law, the U.S. Court of Appeals for the Ninth Circuit has expressly abrogated former precedent limiting the ability of whistleblowers to recover funds reimbursed to the Federal Government under the FCA to a greater degree than in many other circuits. The case is United States ex rel. Hartpence v. Kinetic Concepts, Inc., No. 12-55386 (9th Cir. July 7, 2015). Generally, the FCA prohibits the knowing submission to the Federal Government . . . Read More
Comments on Proposed Rule Regarding Small Business Subcontracting Improvements
After the recent small business subcontracting plan changes were implemented by the U.S. Small Business Administration (“SBA”) in its final rule at 78 Fed. Reg. 42391 , dated July 16, 2013, many of our clients have asked us how the SBA’s new rules should be interpreted in light of the existing FAR small business subcontracting requirements. We believe that the FAR Councils are taking the right steps to harmonize the SBA’s requirements with the obligations the FAR imposes. However, we believe that there are . . . Read More