Bass, Berry & Sims PLC announces the launch of its new blog, Inside the FCA, which will provide ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements affecting federal programs and government contractors. Inside the FCA focuses on providing timely updates for
Event: 5th Annual Small Business Forum “Woman Owned Small Businesses, Breaking Through the Barriers”
According to American Express OPEN, “For the first time in history, the U.S. government has awarded 5 percent of federal government contracting dollars to women-owned small businesses—a big achievement for both the government and the approximately 9.4 million women-owned small businesses across the country.” On Thursday, March 17, I have the honor of presenting “The
New Mandatory Paid Sick Leave Rules Could Ensnare Unwary Federal Contractors
On Thursday, February 25, 2016, the U.S. Department of Labor proposed new rules to implement Executive Order 13706, which requires certain federal contractors to provide qualifying employees with at least seven days of paid sick leave each year, including paid leave for family care. These new rules are scheduled to go into effect by September 30, 2016, and employers who contract with the federal government should prepare for their implementation now. Noncompliance could result in suspension of federal payments or even termination of a federal contract.
The new rules generally apply to any employer who contracts with the federal government, whether pursuant to a prime contract or a subcontract, provided that the contract is either: (1) covered by the Davis-Bacon Act (DBA); (2) covered by the Service Contract Act (SCA); or (3) a contract in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public. A contract is covered by the DBA if the contract is in excess of $2,000 and the principal purpose of the contract is for the construction, alteration and/or repair of public buildings or public works. A contract is covered by the SCA if the contract is in excess of $2,500, and the principal purpose of the contract is to provide services in the United States through the use of service employees.Continue Reading New Mandatory Paid Sick Leave Rules Could Ensnare Unwary Federal Contractors
Webinar: VA Federal Supply Schedule Contracting
Confused about the VA Federal Supply Schedule? Let Tom Fuchs, Managing Director at BDO, and I help you navigate the FSS contracting rules that apply to the sale of medical devices. During our interactive webinar we’ll share our accounting and legal perspectives with you. Specific to the medical/surgical supply and equipment industry, we will review:
This Just In: Teaming Agreements are Still Unenforceable in Virginia
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
Is It Too Late to Cure a Violation of the Non-manufacturer Rule?
Have you submitted your final proposal? If so, and you’ve bid on a small business set aside supply contract, then it is probably too late to cure a possible violation of the non-manufacturer rule. In a recent decision, the Small Business Administration’s Office of Hearings and Appeals (OHA) concluded that once a firm has submitted its final bid or final proposal revision, any subsequent changes in performance approach would be ignored for purposes of assessing the challenged firm’s size and compliance with the non-manufacturer rule.
Continue Reading Is It Too Late to Cure a Violation of the Non-manufacturer Rule?
WOSBs: Self-Certification Ending Soon
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
Failure to Follow Evaluation Criteria Remains Among Top Reasons for Sustained Protests
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
Event: ETEBA Opportunities Conference
We’re headed back to Knoxville, Tennessee this week. On December 9th, Bryan King and I will speak on a panel at the 16th Annual Business Opportunities Conference hosted by the Energy, Technology and Environmental Business Association (ETEBA). Bryan will participate in “Protest Proof your Proposal,” and I’ll be a part of, “SBA Update: Women Owned
The Trans-Pacific Partnership: Impact on Trade and Procurement
Late in the night of October 5, 2015, twelve countries concluded negotiations on a groundbreaking free-trade agreement to liberalize trade. The Trans-Pacific Partnership (TPP) is a free-trade agreement between the United States, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, New Zealand and Vietnam.
The TPP, which still requires approval from Congress, is part of the Obama Administration’s efforts to gain market access in the growing economies of Asia and balancing out China’s increasing economic influence. While China, South Korea and other major players in Asia are not parties to the agreement, there is hope that they will choose to join. Several nations, including Indonesia and the Philippines, have already expressed interest in joining the agreement once it goes into effect.
Like all free-trade agreements, the TPP requires the countries involved to substantially reduce barriers to trade, including tariffs on goods and services. While some tariffs will be eliminated entirely, tariffs on politically sensitive goods such as automobiles, types of apparel and dairy products will drop more gradually.Continue Reading The Trans-Pacific Partnership: Impact on Trade and Procurement