• $2 million penalty against Exxon overturned
  • Court concluded that OFAC failed to provide clear notice of violative conduct
  • Companies are at risk when acting in context of ambiguous agency guidance

At the end of December 2019, the U.S. District Court for the Northern District of Texas vacated a $2 million penalty that the U.S. Treasury Department, Office of Foreign Assets Control (OFAC) had imposed against ExxonMobil for alleged violations of U.S. sanctions related to Russia and Ukraine.  OFAC is the U.S. government agency that administers most U.S. sanctions.

This matter has been of interest since the penalty was first announced in July 2017 – read our July 2017 blog post detailing the matter.  As described below, the district court’s reasoning in vacating the penalty against Exxon is worthy of interest, too.

Continue Reading U.S. District Court Deals Rare Defeat to OFAC in U.S. Sanctions Matter

I will present at Tennessee PTAC’s SBIR/STTR Technology & Commercialization Forum: DOE/DOD Research Update which takes place at the Oak Ridge Associated Universities Pollard Technology Conference Center on February 18, 2020.

Attendees will hear directly from Department of Energy (DOE) and Department of Defense (DOD) program experts about funding opportunities for innovation and how to take advantage of these opportunities.

The forum will feature impactful training and networking sessions. My session is titled, “Protecting Your Intellectual Property.”

For more information and registration, please visit the event’s website. Will you be attending? Let me know and I’ll look for you there.

Please join the Bass, Berry & Sims Government Contracts & International Trade attorneys for a series of complimentary briefings via webinar that will serve as an extension of our GovCon & Trade Blog and feature timely and practical guidance on key topics of interest.

The next GovCon & Trade webinar will focus on current topics in U.S. economic sanctions and will be presented by Thad McBride, who leads the Bass, Berry & Sims International Trade Practice.

Thad will discuss sanctions compliance challenges, such as those presented when trying to do business in Russia, and avoiding transactions with prohibited and restricted parties. Thad will also discuss compliance best practices for avoiding sanctions violations.

WEBINAR DETAILS

Title: Sanctions Update: Looking Back and Ahead

Date: Tuesday, December 17, 2019  Time: 1:00 PM Eastern Standard Time/12:00 PM Central Standard Time

Webinar approved for one hour General Tennessee CLE credit. Certificate of completion available upon request.

Who Should Attend

  • General counsels and other in-house legal personnel
  • Chief compliance officers
  • Risk managers
  • Internal auditors
  • Supply chain/logistics managers
  • Customs compliance directors
  • Import and export managers
  • Purchasing directors

For more information, please contact Claire Krummenacher.

On November 8, 2019, the Small Business Administration (SBA) released an expansive proposed rule to merge its two mentor-protégé programs, while also modifying a number of rules applicable to participants in the program. Under the proposed rule, the SBA will combine its 8(a) Mentor-Protégé Program into its All Small Mentor-Protégé Program (ASMPP).

The 8(a) program is about two decades old and is reserved for 8(a) firms, while the ASMPP was created in 2016 and is open to any small business. According to the SBA, the benefits to participants in both of the programs are identical and the merging of the two programs is being done to “eliminate confusion regarding perceived differences between the two programs, remove unnecessary duplication of functions within SBA, and establish one, unified staff to better coordinate and process mentor-protégé applications.” Below is a summary of the material proposed changes and new recertification rule that could have a big impact on who qualifies for set-asides under unrestricted multiple award contracts.

Continue Reading Merging Mentoring Programs: SBA’s Proposed Rule to Simplify its Mentor-Protégé Programs

In line with recent actions taken across the government to enhance the resilience of the nation’s cybersecurity apparatus, the Cybersecurity Infrastructure Security Agency (CISA) recently released a set of best practices for small businesses.  These Cyber Essentials, according to CISA, are intended as a starting point to nurture a “culture of security, and specific actions for leaders and their IT professionals to put that culture into actions.”

The Cyber Essentials provide guidance for both organization leaders and IT professionals across six elements:

  • Yourself
  • Your Staff
  • Your Systems
  • Your Surroundings
  • Your Data
  • Your Actions under Stress.

Continue Reading Covering the Basics: CISA Announces Cybersecurity Essentials for Small Businesses

I recently commented to Law360 on the findings of the ISDC’s report on suspension and debarment activity in FY2018.  The report, which is available here, shows an increased used of tools such as proactive engagement by contractors, pre-notice letters, and administrative agreements by suspending and debarring officials, all of which indicate an increased willingness to consider measures short of exclusion to address compliance weaknesses, particularly where those weaknesses do not pose a risk to the government.

“There are a number of contractors providing key services and key goods to the U.S. government and it’s better to figure out a way to improve their compliance than eliminate them from the contracting market, generally speaking,” I explained in the article.

The full article, “New Report Shows Feds’ Nuanced Approach to Contractors,” was published by Law360 on November 7, 2019, and is available online.

On October 31, 2019, President Trump signed Executive Order (EO) 13897 – “Improving Federal Contractor Operations by Revoking Executive Order 13495.” Taking effect immediately, EO 13897 revokes EO 13495 previously issued by the Obama administration in January 2009. EO 13495, titled “Nondisplacement of Qualified Workers Under Service Contracts,” required successor contractors to an expired service contract to offer a right of first refusal of employment to those “qualified” employees from the predecessor contract if the follow-on contract is awarded for the same service, at the same location. Continue Reading Trump Revokes “Right of First Refusal” for Employees on Predecessor Contracts

The government fiscal year runs from October 1 to September 30, and at the end of each fiscal year federal agencies rush to award contracts and commit funding before that funding expires. As a result, our Government Contracts Practice is typically very busy between September and November filing protests of awards or defending awards to our clients, often filing detailed challenges to awards on very short notice, typically 10 days or less.

This year has been no exception, and we have been grateful that our clients have relied on us to file or defend a number of protests at the Government Accountability Office (GAO) and the Court of Federal Claims related to awards or solicitations issued by the Army, the Navy, the CIA, and the State Department, among others agencies that together total well over $1 billion.

Three Key Issues for Government Contractors to Remember About Protests

While some protests are still pending, in the month of October alone the government agreed to take “corrective action” in five procurements as a result of the protests we filed, giving our clients another shot at important contracts in four post-award protests and agreeing to remedy defects in a solicitation after a pre-award protest. The fact that we continue to see a significant percentage of protests being resolved through corrective action highlights three issues all government contractors should keep in mind.

Continue Reading Tis the Season (for Protests)!

As the Department of Defense (DoD) pushes to overhaul cybersecurity requirements with a new Cybersecurity Maturity Model Certification (CMMC) program to be implemented in the fall of 2020, I recently provided insights for an article in Law360 that highlighted some potential challenges the quick rollout and still-unanswered questions could present. Contractors generally welcome the unified and modernized approach to cybersecurity, but because there are many questions left unanswered since the initial drafts released in May and in September, there are concerns among some that the perceived rush is creating undue stress and confusion.

As a result, the September draft of the CMMC program received a large volume of public comments, which Todd noted was unusual given the limited time available for comment. For solutions the DOD could address in the final rule, I suggested the Department ensure minimum cybersecurity levels are included in contracts as pass-fail threshold requirements, rather than as subjective assessments that potentially open up new grounds for bid protests.

Continue Reading Insight on DoD’s Cybersecurity Plan

Given the continued high volume of mergers and acquisitions (M&A) transactions in the federal marketplace, buyers and sellers need to be aware of the developing body of case law at Government Accountability Office (GAO) and Court of Federal Claims (COFC) regarding how acquisitions are impacting pending bids and the steps that parties can take to protect those bids in certain situations.

This post will highlight recent cases and provide practical guidance on diligence, deal timing and communications with government customers regarding transactions. Additionally, this post will outline bid protest decisions involving asset deals and corporate reorganizations, and their impact on pending bids.

Continue Reading How Do Mergers & Acquisitions Impact Pending Bids?