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Sylvia Yi

Sylvia Yi represents businesses across a broad range of sectors as they move through the contracting process with federal, state and local governments, and when they engage in international transactions. Sylvia counsels public and private companies on day to day compliance challenges and has a particular focus on mergers & acquisitions involving government contractors. She is a regular contributor to the firm’s GovCon & Trade Blog, where she provides insight on the demanding and ever-changing regulatory environment.

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On July 26, 2016, responding to rising cyber attacks and public criticism, the federal government issued a Presidential Policy Directive (PPD-41), to clarify the role of law enforcement agencies, to increase coordination across the government, and to divide cybersecurity efforts into three categories: asset response, threat response and intelligence support. PPD-41 outlines five key principles for the federal government and federal agencies in complying with the “whole-government” approach to cybersecurity. Although the initiative is directed at the federal government and sector-specific agencies, private entities are also likely to be affected and are instructed on the best practice for cyber incident reporting.

PPD-41 emphasizes unity in the government’s response to cybersecurity incidents, outlining five guiding principles of the directive. In structuring incident reporting and protection mechanisms, the government seeks to emphasize shared responsibility, increased awareness, risk-based responses, respect to entities affected by the incident, unity in governmental efforts in responding to an incident, and allowing effective restoration and recovery following a cybersecurity breach. In distributing the responsibilities of cybersecurity, the government delineates specific agencies to take charge of the three categories of protection. The Department of Homeland Security (DHS) will lead asset response activities and post-breach recovery needs, the Department of Justice (DOJ) in collaboration with the FBI will be in charge of threat response, and the Office of the Director of National Intelligence (ODNI) will head intelligence support.Continue Reading Federal Government Restructures Its Approach to Cybersecurity

In a unanimous decision issued today, the U.S. Supreme Court held that the U.S. Department of Veterans Affairs (VA) is required to set-aside contracts for every competitive acquisition, including Federal Supply Schedule (FSS) orders, when two or more eligible veteran-owned concerns will submit offers and an award can be made at a fair and reasonable price.  This ruling effectively increases the number of contracts (whether standalone or FSS orders) that will be set aside exclusively for veteran-owned small businesses (VOSBs) and service disabled veteran-owned small businesses (SDVOSBs) because the VA is statutorily prohibited from competitively awarding contracts to non-VOSB concerns when that requirement can be met.

In 2006, Congress passed the Veterans Benefits, Health Care, and Information Technology Act (VA Act), which established requirements for the VA to meet VOSB contracting goals.  38 U.S.C. §§ 8127-28 (2006).  The “Rule of Two,” at Section 8127(d), requires the VA to set aside competitive contracts for VOSBs if the contracting officer has a reasonable expectation that two or more VOSBs will submit offers and that the award can be made at a fair and reasonable price.

Since 2011, the U.S. Government Accountability Office (GAO) has consistently held that the VA is statutorily required to apply the Rule of Two to any competitive acquisition.  However, as the GAO issues “recommendations,” the VA has publicly disagreed with and declined to follow the GAO’s interpretation of the VA Act.  Accordingly, the GAO notified Congress of the VA’s declination to follow GAO recommendations.Continue Reading SCOTUS Says: Veterans Affairs Must Prefer Veterans

The SBA is proposing to change the SBIR and STTR Policy Directives in a series of clarifying amendments that provide a new layer of certainty regarding the future of SBIR contractors’ data rights and potential Phase III awards.

SBIR contractors are currently entitled to an “SBIR/STTR protection period” of four years (five years for DoD SBIR contracts) from the last deliverable during which the awardee retains the rights in data. This protection period is extended upon each subsequent related award, which can leave the contractor and the government (and potential acquiring entities) unsure of the actual length of the protection period. To provide clarity around the time period, SBA is proposing an SBIR/STTR protection period of 12 years without extensions. This is a suggested minimum, and agencies would have the discretion to adopt a longer period. Under a proposed fixed period, the value of a SBIR contractor’s data is more readily determined without an ever-changing timeframe of data rights.Continue Reading How Will Proposed Changes to SBIR Rules Impact Valuation of SBIR Contractors?

The Department of Energy (DOE) has proposed an amendment to the Department of Energy Acquisition Regulation (DEAR) that, among other changes, clarifies that FAR Subpart 22.12, Nondisplacement of Qualified Workers Under Service Contracts, and the associated Department of Labor regulations, applies to subcontracts under DOE’s management and operating (M&O) contracts. M&O contractors and their subcontractors need to be aware of these changes, particularly the impact on the requirement to hire service employees working on incumbent contracts set forth in contract clause FAR 52.222-17.

FAR Subpart 22.12 implements Executive Order 13495 (January 30, 2009), and requires a successor contractor and its subcontractors to offer “service employees,” as defined by the Service Contract Act, under the predecessor contract (of the same or similar services at the same location) and whose employment will be terminated as a result of the successor contract award, a right of first refusal of employment under the new contract. Employment openings are generally prohibited until such right of refusal has been provided, meaning an incoming contractor will have limited opportunity to staff its current employees on the contract. Importantly, each bona fide express offer of employment must have a stated time limit of not less than 10 days for an employee response, a time period that successor contractors should account for when determining how long it will take to transition the contract. The contract clause, FAR 52.222-17, has to be flowed down to service subcontracts over the simplified acquisition threshold, typically $150,000. The requirements of FAR Subpart 22.12 do not apply to service contracts performed entirely outside the United States. 77 Fed. Reg. 75768 (Dec. 21, 2012).Continue Reading DEAR Department of Energy M&O Contractors: The FAR Nondisplacement of Qualified Workers Requirements Apply To You, Too

In A-T Solutions Inc. (A-T) v. R3 Strategic Support Group Inc. (R3), a Virginia federal judge denied a preliminary injunction to prevent a contractor and former teaming partner from bidding on a bomb-disposal contract.

A-T and R3 entered into a teaming agreement to bid on a $50 million bomb-disposal contract in May 2015. The Government canceled the solicitation in July1. After it was reissued in December 2015, R3 notified A-T it no longer wanted to team for the acquisition. A-T subsequently accused R3 of treating the teaming agreement as void, including the provision to keep A-T’s proprietary information confidential. A-T filed suit in the U.S. District Court for the Eastern District of Virginia, filing a motion for preliminary injunction and specific performance to stop R3 from bidding on the contract and to specifically perform under the teaming agreement.Continue Reading This Just In: Teaming Agreements are Still Unenforceable in Virginia

On December 22, the Treasury Department’s Office of Foreign Assets Control (OFAC) designated more than 30 individuals and entities under the Ukraine-related sanctions. The designations were made under the auspices of several different executive orders, and thus there are different restrictions on transacting with these parties depending on the basis for each party’s designation. Roughly…

The NDAA of 2015 not only authorized sole source awards to WOSBs and EDWOSBs, it also eliminated WOSB and EDWOSB self-certification. The SBA, however, chose not to implement this section of the law in its sole source rule issued September 14, 2015 (see our blog post on SBA’s rule here) due to the complexity of its implementation.

On December 18, 2015, the SBA issued an advanced notice of proposed rulemaking (ANPRM), inviting comments on the four methods of certification permitted by the NDAA: federal agency, state government, SBA, and national certifying entities approved by SBA. With regard to these methods, the SBA is seeking comments on the following:

(1) Whether each of the methods should be pursued;

(2) Concerns of feasibility regarding any of the methods;

(3) Possibility of a grace period for those who have self-certified to obtain approved certification; and

(4) What should become of the current WOSB repository.

Under SBA’s current rules, businesses may self-certify after submitting required documents to the SBA repository or get certified by a third party provider.  Currently, there are four third party entities that have been approved by the SBA to certify firms as WOSBs or EDWOSBs. The SBA is considering how many third party entities are necessary to process the certifications under the new rule and whether the cost to WOSBs and EDWOSBs should be taken into consideration in selecting third party certifiers.Continue Reading WOSBs: Self-Certification Ending Soon

At the close of each fiscal year, the U.S. Government Accountability Office (GAO) is required by the Competition in Contracting Act of 1984 (CICA) to submit a report of the bid protests before the GAO. A significant number of protests filed do not reach a merit decision due to voluntary corrective action. Because agencies are not required to report any reasons for voluntary corrective action, these yearly reports are particularly helpful in analyzing trends and concerns for contractors. Highlights from the FY2015 report:

The sustain rate has been declining since the 18.6% reported in FY2012; in FY2015 there were only 68 sustains out of the 587 merit decisions (12%). In FY2014, there were 72 sustains out of 556 merit decisions (13%). However, the number of cases filed has steadily increased since the 2,429 cases filed in FY2013, with 2,639 filed in FY2015.

About 13% of the cases closed this year were task or delivery order protests under IDIQ contracts, of which GAO has exclusive bid protest jurisdiction for challenges to task or delivery orders greater than $10 million. Almost 12% of closed cases in FY2014 were attributed to task or delivery orders.Continue Reading Failure to Follow Evaluation Criteria Remains Among Top Reasons for Sustained Protests

The Small Business Administration (SBA) issued a final rule on September 14, 2015, expanding contracting officers’ authority to issue sole source awards to Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs). This rule takes effect on October 14, 2015 (the “New Rule”).

Prior to the issuance of the New Rule, the WOSB program was the only SBA small business contracting program without a sole source option. The New Rule will put WOSBs on equal footing with SBA’s other socioeconomic small business programs with respect to a sole source award option.Continue Reading New Rule Possible Boon to WOSB/EDWOSB Contracting Opportunities

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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