In an article published by National Defense Magazine, Bass, Berry & Sims attorneys Richard Arnholt and Sylvia Yi provided insight on the significant changes affecting defense contractors from the National Defense Authorization Act (NDAA) for fiscal year 2018, specifically concerning bid protests.

There are two significant big protest changes in the new NDAA:

  1. the introduction of a new three-year pilot program in which large defense contractors will be required to pay the Department of Defense’s costs where a protest is denied by the Government Accountability Office (GAO); and
  2. the enhancement of post-award debriefing rights.

Continue Reading Richard Arnholt and Sylvia Yi Examine 2018 Changes in Challenges to Bid Protests from NDAA

Two Washington, D.C. area government contractors have agreed to pay the government for their respective roles in defrauding the U.S. Small Business Administration (SBA) in schemes to fraudulently obtain government contracts set aside for small businesses.  These two cases highlight the importance of small business compliance and the submission of accurate and complete certifications. Continue Reading Small Business Fraud Leads to Large Monetary Liability in Recent Cases

Teaming Arrangements under the FAR

Under Federal Acquisition Regulation (FAR) 9.6, a contractor teaming arrangement is when:

  1. Two or more companies form a partnership or joint venture to act as a potential prime contractor; or
  2. A potential prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified government contract or acquisition program.

Both of these arrangements have the potential to help small businesses increase the number of solicitations they can confidently bid on, but both also come with their own set of limitations to consider.

Continue Reading What Small Businesses Must Consider When Using Teaming Arrangements or Joint Ventures

This Post at a Glance:

  • Company made false statements related to import duty charges
  • Investigation initiated by whistleblower complaint from company’s competitor
  • Trump Administration likely to impose more anti-dumping duties

On February 6, 2018, the Department of Justice (DOJ) announced that Home Furnishings Resource Group Inc. (HFRG), of Hermitage, Tennessee, agreed to a $500,000 settlement to resolve allegations that the company violated the False Claims Act (FCA). The DOJ contended that HFRG made false statements on customs declarations to avoid paying anti-dumping duties on wooden bedroom furniture that HFRG imported from China between 2009 and 2014.

Continue Reading Tennessee Company Skirts Customs Obligations, Pays $500,000 FCA Penalty

The Government recently indicted an Army veteran for allegedly using his status as a service-disabled veteran to help a company qualify as a service-disabled veteran-owned small business and falsely obtain nearly $40 million in healthcare facility construction task orders from the Department of Defense.

The indictment is an indication that the government is continuing to aggressively pursue small businesses that fail to comply with set-aside requirements, and is a reminder that businesses benefiting from small business programs must be fully compliant with the complex regulations governing those socio-economic programs. It is also a reminder that the consequences of failing to meet those requirements are real – the Army veteran, Joseph Dial Jr., is facing over a century in prison.

Continue Reading If You Don’t Do the Work, You Might Do Time Instead: Service-Disabled Veteran Faces Jail Time for Failing to Run Day-to-Day Operations

Congress recently concluded the conference on the 2018 National Defense Authorization Act (NDAA), resolving the differences between the House and Senate versions of the FY18 NDAA passed earlier this year.

Pilot Program Will Require Contractors to Reimburse the Department of Defense for Protest Processing Costs

Among other significant procurement provisions in the bill that came out of conference, Section 827 of the 2018 NDAA includes a three-year pilot program that will require that large Department of Defense (DoD) contractors – those with revenue in excess of $250 million during the previous year in FY17 constant dollars – reimburse DoD for “costs incurred in processing covered protests” if a protest is “denied in an opinion” issued by the Government Accountability Office (GAO).  This provision, which is similar to legislation proposed by the Senate last year, reflects Congress’ belief that contractors are taking advantage of the GAO protest system by filing frivolous protests that are delaying properly awarded contracts and imposing unnecessary costs on DoD.  As it appears now, the provision will take effect two years after the bill is signed.

Continue Reading Large Contractors – Time to Take Your Protests to Court?

4th Annual Compliance & Government Investigations Update: Practical Strategies for Responding to Government Investigations and Improving Your Compliance

Join us on Thursday, September 14, as we co-sponsor the 4th Annual Compliance & Government Investigations Update: Practical Strategies for Responding to Government Investigations and Improving Your Compliance with BDO.

This full day seminar will provide practical takeaway tips for preparing for, responding to and resolving a government investigation. Panel discussions filled with experienced counsel and government officials will deliver insight into a comprehensive list of government enforcement and compliance topics.

The afternoon sessions will feature a government contracts focused panel moderated by Todd Overman called Service Contract Act Compliance and Enforcement Trends. Sharing their insight on this informative panel will be Bass, Berry & Sims attorney Richard Arnholt and Aaron Raddock, Director, Government Contracts Advisory Services for BDO. Continue Reading Event: 4th Annual Compliance & Government Investigations Update

On Thursday, August 17, 2017, I will be in Tampa, Florida taking part in the Prime Focus Executive Event.  I will present a session on the All Small Mentor-Protégé Program, highlighting the opportunities of this expanded program for both large and small businesses. During my session, I will explain how SBA-approved mentor/protégé relationships allow small businesses to benefit from significant support from large business mentors without being deemed to be affiliated. I will also offer best practices for large business mentors to enter into joint ventures with protégés and compete for work set aside for small businesses.

This program is hosted by CWU Inc. and Solvability, Inc.

As recent malware, ransomware and distributed denial of service attacks have made clear, the cyber threats posed to governments and commercial entities are real and growing. Critical infrastructure such as power plants, airports and communication systems are vulnerable to attacks on the cyber battlefield, as are banks, manufacturers, and law firms, among other commercial entities. In an attempt to address these risks, the U.S. government is imposing heightened cyber-security requirements on contractors, some of which are summarized below. But, in light of the growing cyber threats posed by nation states, subnational groups and bored teenagers, even companies that are not subject to these new requirements should evaluate the sufficiency of their current cyber security protocols and consider taking steps such as the simplified four-step “starter plan” – train, maintain, test and repeat – laid out below to address vulnerabilities.

Continue Reading DoD’s Efforts to Secure Information on Contractor Systems Continues, But All Companies Are at Risk and Should Take Steps Now to Protect Themselves

I commented on an article published in RealClearDefense, on the impact of the April executive order highlighting the Trump administration’s intention to renew the focus on sourcing domestic resources and employees for government contracts. The order requires increased enforcement of current “Buy American” laws, which date back to the Depression-era statutes Congress passed in 1933. The Office of Management and Budget (OMB) and the Commerce Department released follow-up guidance in late June requiring all federal agencies to prepare a compliance plan by September 15, 2017.

Continue Reading “Buy American” Rules Have Major Implications for Defense