A Contracting Officer’s choice of what industry classification (aka NAICS code) applies to a contract can determine whether a business is or is not eligible to compete for a small business set aside contract. It all comes down to the size standards applicable to the chosen category. Read on to learn more about the implications of such classifications and whether you can do something about a bad choice.
Read MoreThe Small Business Adminstration (“SBA”) recently changed the process by which companies can obtain certification as Women-Owned Small Businesses (WOSB) or Economically Disadvantaged Small Businesses (EDWOSB). Self-certification no longer is an option. Here’s what companies need to know to obtain new certifications or to figure out if your current certification might be in jeopardy.
Read MoreWhen new employees start work on a SCA covered contract, the employer faces a connundrum with respect to vacation bnefits. The employer can furnish the benefits immediately, and just pay benefits in excess of the SCA, resulting in payments above the minimum prevailing wage and impairing its right to a price adjustment the next option year. Or it can pay no vacation benefits, or just give leave without pay, and demoralize the new workers. But there is a third although relatively infrequently used course of action called an advanced or prepayment agreement or policy whereby the worker elects to receive the vacation benefit immediately on hiring, but the employer reserves the ability to get a credit for furnishing the benefit on the next anniversay date of employment.
Read MoreDon’t let the Boards of Conract Appeals fool you. Contractors have 120 days to appeal decisons to the Federal Circuit. Sitting on your claim for reimbursement is never a good idea. Once you get a final decision, the appeal clock is running.
Read MoreA new Executive Order was issued on August 3, 2020 to require reports be created by federal contracting agencies on use of foreign labor on government contracts and to discourage the employment of H-B1 Visa holders on federal government contracts.
Read MoreMany service contracts require that certain jobs, i.e., “key positions,” be held by highly qualified personnel dedicated to the project. So, what happens if that rock star project manager you spent months recruiting for a “key position” bails out on you in the middle of the competition to win the very contract the rock star was proposed to manage?
Read MoreThe Government has several avenues to pursue damages when a contractor commits fraud, including bringing its own False Claims Act suit or joining a proxy qui tam lawsuit. But what happens when the Government’s mistake leads to a contractor’s damages? In a recent case, a contractor invoked the so-called Spearin doctrine to recover legal fees from an erroneous qui tam lawsuit.
Read MoreThe Government is entitled to procure supplies and services that are carefully focused to meet its needs. However, if a solicitation’s terms preclude otherwise qualified companies from competing for the award, then the solicitation might unduly restrict competition.
Read MoreThe Court of Federal Claims sustained the protest of a contractor that argued that the Government could not hire a replacement contractor through the use of an improperly justified sole source acquisition. The Court set aside the new award—a result that likely will require the Government to continue working with a contractor with which it allegedly was dissatisfied. Should an agency have the ability to make a change using a sole source procurement? In the commercial world, feathers might get ruffled, but a jilted vendor wouldn’t be able to get a court to throw out a replacement. In our world, it’s all different.
Read MoreA final rule amending the FAR to delete the the Executive Order Nondisplacement rules effective June 5, 2020 was finally issued ending the requirement to offer a first right of refusal for employment on government service contracts to certain workers.
Read MoreThe blizzard of COVID-19 related contracting activity poses considerable compliance risks. But, federal contractors shouldn’t be discouraged to be a part of our shared national mission to cope with this pandemic—just hurry up and wait long enough to consider how you’re responding under the circumstances. By doing so, hopefully you can avoid the painful question “what were they thinking?”
Read MoreHere is how we became government contracts lawyers. We both found a place sheltered from the storm, albeit 37 years apart, in the two greatest moments of economic distress since World War II.
Read MoreOFCCP issued an exemption for certain new coronavirus related contracts providing “relief” from certain parts of Executive Order 11246 (EO 11246), as amended, Section 503 of the Rehabilitation Act (Section 503), as amended, and Section 4212 of the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), as amended. Generally, contractors performing under a covered contract no longer have to abide by the sections that require affirmative action to ensure the hiring of employees without regard to their sex, sexual orientation, religion, color, race, disability status, or veteran status. However, this waiver only applies to the exempted contracts.
Read MoreThe COVID-19 pandemic has thrown virtually every routine out the window as the nation struggles to cope with a crisis that defies description. The routines of government contracting likewise are in a state of suspension where agencies and their contractors are struggling to find a new normal. Indeed, every day sees new guidance and directives regarding how to manage in the COVID-19 environment. On Monday (March 30), the Department of Defense released a memo that urges a reasoned approach to addressing these disruptions by making it clear that Contracting Officers are trusted and empowered to make contract adjustments to address these disruptions.
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A dispute over the obligation to deliver replacement batteries for golf carts illustrates how years of contract performance can create confusion (and discord) over what happens at the end of a contract.
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In tennis, foot faults are minor, yet sometimes game changing, errors. Three recent bid protest decisions demonstrate how seemingly technical glitches in the presentation of key personnel qualifications created potentially insurmountable errors.
Read MoreThe GAO recently found that a contract modification was so far outside the scope of a contract that it should have been the subject of a new procurement. Read on to learn what happened and what to consider when a contract is significantly modified such that it almost seems like a whole new beast.
Read MoreYou just won a contract. You brought that brilliant project manager on board. Then, your competitor files a protest and you have to stop work. What do you do to keep that manager in the stable? A recent case at the Armed Services Board of Contract Appeals denied a contractor the cost of doing something quite reasonable—keeping the manager on board.
Read MoreDOJ has issued guidance about how trade secrets and commercial or financial information should be treated under new Supreme Court precedent interpreting the Freedom of Information Act. This guidance hopefully will achieve the Court’s “fair reading” of the term “confidential” when it comes to determining whether information should be exempt from FOIA disclosures.
Read MoreUnder the Service Contract Act (“SCA”), employers with self-insured unfunded health and weflare (“H&W”) plans are better off forming a trust and paying acturial premiums into the trust monthly so they can get proper credit for the fringe benefits furnished.
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