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

The GAO recently denied Leidos Innovations Corporation’s protest of a determination that Leidos was ineligible to receive a $272 million award by the U.S. Army despite Leidos having both the highest-rated technical proposal and the lowest evaluated cost.  The GAO decision, which affirmed the agency’s determination that Leidos was non-responsible because one of Leidos’ subcontractors did not have the necessary base access, is an important reminder that prime contractors should thoroughly vet their subcontractors to ensure, to the extent possible, all necessary qualifications are satisfied for the associated contract.

Continue Reading Proposals are Only as Strong as their Weakest Link: GAO Affirms Non-responsiblity Determination Based on Subcontractor’s Lack of Base Access

On April 18, 2017, Donald Trump signed a Presidential Executive Order on Buy American and Hire American (EO). As we reported at the time, Section 3 of the EO directed the heads of all federal agencies to, among other things: (1) assess the monitoring of, enforcement of, implementation of, and compliance with Buy American laws within their agencies; (2) assess the use of BAA waivers within their agencies; and (3) develop and propose policies to ensure federal funds maximize the use of materials produced in the United States. It also ordered the Department of Commerce (DOC) and the Office of Management and Budget (OMB) to issues guidance to agencies about how to comply with their obligations.

Continue Reading U.S. Government Guidance on Buy American Executive Order Could Signal Impending Headaches for Government Contractors

On April 18, President Trump signed the “Presidential Executive Order on Buy American and Hire American” (the Order), which declares the Executive branch’s policy to buy American goods and rigorously enforce and administer laws governing entry into the United States of workers from abroad.  The Order is keeping with President Trump’s campaign promises regarding hiring American workers and promoting U.S. manufacturing, and signals a renewed focus on domestic sourcing requirements as well as the likelihood of greater restrictions on work visas for non-U.S. citizens.

Continue Reading Buy American Executive Order Means Renewed Obligations for Government Contractors

In an article published by Law360, I provided expanded insight on a U.S. Government Accountability Office (GAO) jurisdiction gap that occurred between October 1 and December 14, 2016, due to a legislative oversight. During this lapse, there was no venue with jurisdiction to hear protests of civilian agency task order awards. Congress has now given GAO permanent jurisdiction, but recent rulings dealing with the lapse have made clear that the legislation will not be applied retroactively. I suggest that now “that the GAO’s jurisdiction to hear protests of both civilian and DOD task order protests is permanent, albeit set at different thresholds, it is unlikely that such lapses will occur again anytime soon.”

The full article, “An Update On Aftermath Of GAO Jurisdiction Gap,” was published by Law360 on April 6, 2017, and is available online.

Additional insights can be found in my earlier blog post on the topic, “Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively,” published on March 20, 2017.