By Hon. Jack Delman
In XOTECH, LLC v. UNITED STATES, 950 F.3d 1376 (Fed. Cir. 2020) (XO), the Federal Circuit recently affirmed the overturn of an award to a service-disabled-veteran-owned (SDVO) LLC small business on the grounds that the LLC failed to show that its decisions were controlled by the SDV as required by law.
THE BACKGROUND
In 2017, the Army issued an RFP –set aside for SDVO small business –to provide logistical support for certain Army Reserve facilities. XO submitted a prop
By Tyler Freiberger, Esq.,
By now, you’ve heard about the CARES Act and the $350 billion put aside for small businesses. I’m assuming the word is out, given Bank of America alone received 10,000 applications in just the first hour it opened it’s online portal to accept the applications. If you haven’t, the short story is that private lenders are beings tasked to provide loans to small businesses that cover 100% of eight weeks’ payroll, nicknamed the “PPP loans.” The best part, these loans will
By Julia Coon,
As you are completing your annual spring cleaning, do not forget to spruce up your Multiple Award Schedule (MAS) contract. It is important to regularly review and update your MAS contract to ensure your company is in compliance with your contract requirements. Some of the key areas to review when sprucing up your MAS contract are highlighted below.
Digital Certificates & Authorized Negotiators:
All contractors should ensure their digital certificates are active and the inf
By JW Butler
Multiple Award Schedule Modification Guidance
On March 6, 2020, GSA released the final MAS Modification Guidance package. The new MAS Modification Guidance package can be found here. GSA previously had different modification guidelines for the 24 different legacy Schedules, but with the release of this modification package all contractors under the new MAS will follow the same guidelines for modifications.
There are still specific instructions for each type of modification, but r
By David Warner,
Last week, the National Labor Relations Board (NLRB) published its final rule setting out the standards for determining when two entities might both be considered an employer of an individual for purposes of coverage under the federal National Labor Relations Act (NLRA). Under the NLRB’s promulgated rule, entities will be considered joint employers only if “the two share or codetermine the employees’ essential terms and conditions of employment, which are exclusively defined as
By Edward W. Bailey,
Section 7 of the National Labor Relations Act (“NLRA”) guarantees employees the right to organize and collectively bargain through representatives and applies to a wide range of employer conduct including the contents of employee handbooks. Until recently, the National Labor Relations Board’s (“NLRB”) standard for determining whether employee handbooks violated the NLRA was relatively employee friendly and found handbook policies to be unlawful if they could merely be “
By Hon. Jack Delman
The Court of Federal Claims recently awarded an equitable adjustment (EA) to a contractor providing reimbursement of legal fees to successfully defend a False Claims Act (FCA) action. The Tolliver Group v. United States, No. 17-1763C, 1/22/20.
The Facts
In 2011 the Army awarded the contractor a firm fixed price level of effort contract to develop and deliver technical manuals for an Army mine clearing vehicle. The PWS required the Army to deliver government furnished prop
By Tyler Freiberger, Esq.,
Nearly half a century after passage of the Age Discrimination in Employment Act (ADEA), the American workplace remains confused as to the line between an innocent joke and potential legal exposure. While jokes involving race at last have found their way to the “hard no” category, the debate over pop culture trends like “Ok Boomer” has made its way to the U.S. Supreme Court. Consequently, both employers and employees could benefit from a review of where the law stands
By Julia Coon,
The General Services Administration (GSA) has begun issuing the mass modifications for Phase II of the Multiple Award Schedule consolidation. Current GSA contract holders will be receiving a mass modification for each contract updating the Special Item Numbers (SINs) and terms and conditions in accordance with the new consolidated Multiple Award Schedule (MAS). Your contract number, period of performance, and items on your contract will NOT change as a result of this mass modific
By William Weisberg, Esq.,
A dreary day in late January–too late for a “Predictions for the Coming year” blog post, and a little too early for “Emerging Trends in Procurement So Far This year.” So, a few thoughts, (or maybe predictions, anyway):
The Amazon JEDI protest is going to come to a head sooner than anyone thought. DOD awarded the JEDI Cloud contract to Microsoft, “because of/in spite of” the President’s…interest. Amazon protested to the U.S. Court of Federal Claims (“COFC”). The Co
By Edward W. Bailey,
Soon after the end of fiscal year 2019, the Department of Labor (“DOL”) reported that its Wage and Hour Division (“WHD”) had made record breaking recoveries against employers. In its year-end report, the DOL revealed that it collected a remarkable $322 million in back-wages owed to workers. WHD’s new administrator, Cheryl Stanton, stated the following in response to the news:
True to Ms. Stanton’s comment, the DOL’s report did not only tout its enforcement but also th
By Heather Mims, Esq.
The Government Accountability Office (“GAO”) published a report on November 25, 2019 which recommended that the Department of Defense (“DOD”) should include an assessment of risks related to contractor ownership as part of its ongoing efforts to conduct fraud risk assessments. See Ongoing DOD Fraud Risk Assessment Efforts Should Include Contractor Ownership.
In coming to this recommendation, the GAO reviewed thirty-two adjudicated cases between 2012 and 2018, including c
By David Warner,
Last month, the U.S. Court of Federal Claims issued a decision underscoring the substantial risk contractors incur if they perform work not properly authorized by the appropriate government authority. The decision in Panther Brands, LLC v. United States, No. 16-1157C (Dec. 17, 2019) serves as a stark reminder that, even in the face of contrary past customer practice and verbal assurances by seemingly appropriate personnel, typically only Contracting Officers have the authority
By Hon. Jack Delman
Background
On November 22, 2019, the DOD, GSA and NASA jointly issued a final FAR rule, effective December 23, 2019, amending the FAR to require contractors and subcontractors to report to the “Government – Industry Data Exchange Program” (GIDEP) certain counterfeit or suspected counterfeit parts as well as certain major or critical nonconformances. This final rule implemented–and broadened — the requirements of sections 818(c)4 and (c)5 of the FY 2012 NDAA that required D
By Tyler Freiberger, Esq.,
The Department of Justice recently announced the new Procurement Collusion Strike Force (“PCSF”), an inter-agency partnership that includes prosecutors from DOJ’s Antitrust Division and 13 U.S. attorneys’ offices, FBI investigators, and several agency Inspectors General offices. The stated goal of this partnership is “deterring, detecting, investigating and prosecuting antitrust crimes” in the government contracting world. The new PCSF website also streamlines and
By Julia Coon,
The General Services Administration (GSA) completed Phase 1 of the Multiple Award Schedule (MAS) consolidation on October 1, 2019 when the new MAS solicitation consolidating the twenty-four legacy Schedules into one single solicitation was published. Phase 2 of the MAS consolidation will begin in January 2020 when GSA issues a mass modification to all existing contract holders.
The mass modification will update all terms and conditions to match the new MAS solicitation. Once the
By William Weisberg, Esq.,
So, I was asking myself, what about government contracts drives me up a wall? More particularly, what is most frustrating to me, as a practicing procurement lawyer? Easy: debriefings. We (at least contractor “we”) have participated in debriefings where the government “script” was some variation on: “Your proposal was terrible. Here is [insert the absolute minimum to fill up a page or five minutes of phone time, no matter the size or complexity of the procurement].
By Angel N. Davis,
With Cybersecurity awareness a keen focal point, regardless of business size, Government Contractors now have an overwhelming responsibility to ensure the safeguarding of sensitive customer data. The latest Department of Defense (DOD) regulation being developed to support the growing number of cybersecurity concerns , is the DOD Cybersecurity Maturity Model Certification.
The DOD issued a new draft of the CMMC Model, version, 0.6 on November 7, 2019. According to DOD, the CM
By Heather Mims, Esq.
Under Executive Order 13495, the policy of the Federal Government was that all Service Contract Act covered contracts over the simplified acquisition threshold were to include a contract clause requiring contractors to make good-faith offers of employment to predecessor SCA-covered employees. However, on October 31, 2019, President Trump issued an “Executive Order on Improving Federal Contractor Operations by Revoking Executive Order 13495” which requires the “Secretary o
By David Warner,
Actually “40,569,816 reasons,” to be exact. Last week the Office of Federal Contract Compliance Programs (OFCCP) issued a press release lauding its performance in fiscal year 2019 in which it obtained a record-setting $40,569,816 in monetary settlements from federal contractors. The results reflect a more than sixty-five percent (65%) increase over the agency’s prior record that was set in FY 2017. Indeed, the agency’s three-year total recovery between FY 2017-2019 is great
By Edward W. Bailey,
All too often, federal contractors let their guard down when it comes to their ethical duties under the Federal Acquisition Regulations (FAR). This is largely because the FAR’s provisions concerning ethical conduct do not provide much specific guidance.
For example, FAR § 52.203-13 requires contractors to have a “written code of ethics”, exercise “due diligence to prevent and detect criminal conduct”, and otherwise “promote and encourage” ethical conduct and compliance
By Maureen Jamieson
Call me a skeptic. I had my bets along with others that the Consolidated Schedule would not be released on October 1, 2019. I’ve lived through many disappointments over my years working on Multiple Award Schedules (MAS). I remember the promises of no more Schedules Input Program (SIP) and the advent of the Formatted Price List. Then a few years ago the release of the Formatted Product Tool (FPT) only to be told that tool was being discontinued by the General Services Ad
By Hon. Jack Delman
Under the FY 2018 NDAA, House and Senate Committee Reports called for GAO to examine the effects of Offshoring (OS) and Foreign Direct Investment (FDI) on the Defense Supplier Base. GAO reviewed the available public data and convened a panel of experts from academia, industry, and government to address the issues. It submitted a lengthy report to Congress on September 5, 2019, and we provide a brief summary below.
There was no consensus on the definition of OS. Broadly
By Tyler Freiberger, Esq.,
More than one year ago the Federal Housing Finance Agency Special Adviser Simone Grimes testified before Congress describing a former North Carolina representative, and then FHFA Director, Mel Watt’s repeated sexual advances toward Ms. Grimes. As Grimes testified to, and the FHFA Office of Inspector General confirmed, each time Grimes expressed that she was being paid less than her male predecessor, Watt steered the conversation toward his attraction to her. In respon
By Edward W. Bailey,
Boeing just challenged a recent ruling by the Court of Federal Claims which has wide-reaching implications for government contractors. In a May decision, the Court held that, by executing a contract with the government, Boeing had waived its right to challenge the government’s inclusion in the contract of certain mandatory FAR provisions. If the decision were to stand, it would seemingly mean that a contractor’s only recourse in such a situation would be to file a pre-award
