The U.S. Court of Federal Claims recently issued a 2017 statistical report—covering the government’s fiscal year October 1, 2016 to September 30, 2017. During this time, 652 suits filed were filed at the Court and 1,035 suits disposed of within the 12 month period. Of the suits filed, over 42% were contract dispute or protest related, almost 15% taking cases, and 8% tax related. With the overall disposal rate of cases increasing by 82% over the previous year, the Court had its most productive year out the past 12 years. Plaintiffs seeking relief at the Court received around $1.3 billion in judgments and settlements—a nearly $500 million increase from 2016 and the largest amount since 2007. The government, on the other hand, was awarded only $4.3 million in counterclaims, sanctions or offsets. Continue Reading U.S. Court of Federal Claims Reports on Busy and Productive FY17
In an unsealed opinion on October 30, 2017, U.S. Court of Federal Claims Judge Nancy Firestone held that a company, which should have been deemed ineligible from bidding, was allowed to proceed with a contract award because cancelling the deal would be too harmful to the government.
More Acquisitions May Be Blocked in the Future
Last month, asserting national security concerns, President Trump blocked a $1.3 billion acquisition of Oregon-based Lattice Semiconductor by a subsidiary of the Canyon Bridge Fund (Canyon Bridge), a private equity fund backed by Chinese investors. This is one of the few instances to date in which a sale to a non-U.S. buyer of a U.S. company has been blocked under rules administered by the U.S. Committee on Foreign Investment in the United States (CFIUS). Yet the facts of this matter suggest that more potential acquisitions are likely to be blocked in the future.
In an article posted by Bloomberg BNA, I discussed the success of the Small Business Administration’s (SBA) expanded mentor protege program one year post launch. Until October 2016, the mentor-protégé program was only available to just one category of disadvantaged businesses. But last year, the SBA expanded the program so all small businesses could participate and partner with larger government contractors in bidding for work.
“The first year has been a real success story for the SBA,” I stated in the article. “It’s been a long-awaited program.” I commended the SBA saying “The program’s leaders should be commended for keeping application wait times short; for getting the application and approval system entirely online; for working with companies on their applications to help improve their chances; and for raising awareness about the program.”
The full article, “Mentor Program Spawns 300 Partnerships in First Year, SBA Says,” was posted by Bloomberg BNA on October 10, 2017, and is available online (subscription required).
We provided insight on opportunities in government contracting for women-owned small business (WOSB) owners in a September 22, 2017, article in the Nashville Business Journal.
Tennessee is among the 10 fastest-growing states for women-owned companies and currently has approximately 64,000 women-owned businesses. The U.S. Small Business Administration’s (SBA) women-owned small business program aims to provide eligible businesses a better shot at securing government contracting opportunities, and since it began in 2011, the program has been updated to eliminate barriers to entry, such as the removal of contract caps on set-aside awards and the authority to award sole-source contracts. These improvements helped lead the government to meet and exceed its 5% contracting goal to women-owned small businesses for the first time in fiscal year 2015.
Last month, the U.S. District Court for the Eastern District of Washington denied a motion to limit damages against a government contractor, United States ex rel. Savage v. Washington Closure Hanford LLC, where the government sought several categories of damages for alleged False Claims Act (FCA) violations. With a case centered on a nuclear waste company falsely certifying compliance with small business plan participation requirements, the Court ruled that damages would not be limited to remedies provided in the contract.
The level of devastation caused by Hurricanes Harvey and Irma in Texas and Florida, respectively, is estimated to have caused $150-200 billion in damages. With this devastation comes a multibillion-dollar recovery effort that will bring federal money and procurement into the affected areas. With past natural disasters as a guide, much of the work needed for short and long-term cleanup and rebuilding will be contracted to government contractors. The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) will help facilitate these contracts but come with unique preference requirements aimed to favor the affected communities.
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
A recent report from the Department of Defense (DoD) Inspector General (IG) identified a number of significant flaws regarding the Defense Logistics Agency’s (DLA) compliance with the Buy American Act (BAA) and the Berry Amendment. The IG’s findings will likely result in a renewed focus on both BAA and Berry Amendment compliance. As a result, contractors are likely to experience increased frustration as they seek to remain aligned with DLA policies. The IG’s report also draws further attention to the previously discussed government-wide effort by President Trump to both enhance compliance with the BAA as presently drafted and potentially strengthen the BAA through legislative action in the future.
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.