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

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.

Continue Reading Mentor Protégé Joint Venture Allowed to Proceed with Contract Even Though Ineligible to Bid

For more than 30 years, courts have deferred to administrative agencies’ interpretation of ambiguous statutes, unless the interpretation is unreasonable. The doctrine is called “Chevron deference” after the decision that established it, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Recent Case Examines Chevron Deference in Relation to Government Contract Terms

Chevron deference definition: Courts defer to administrative agencies to interpret their own ambiguous statutes unless the interpretation is unreasonable.Government contractors routinely face Chevron deference issues in connection with statutes and regulations governing their performance. But should Chevron deference also apply to the terms of a government contract? In other words, should courts defer to an agency’s construction of an ambiguous term in a contract to which the agency is a party? That was the question presented to the U.S. Supreme Court in Scenic America, Inc. v. Department of Transportation, No. 16-739, 583 U.S. ___ (Oct. 16, 2017). Continue Reading <em>Chevron</em> Deference: Should a Government Agency Get to Decide its Own Contract Disputes?

The U.S. Government Accountability Office (GAO) recently published four protest decisions that were all denied due to timeliness issues. This string of cases serves as a reminder that no matter how strong a protest’s basis may be, if it is not timely filed with GAO; then the protest will most likely be dismissed. GAO’s regulations set strict deadlines for filing protests at GAO. These rules reflect GAO’s dual requirements of

(1) giving parties a fair opportunity to present their cases

(2) resolving protests expeditiously without unduly disrupting or delaying the procurement process. GAO strictly enforces these requirements and will quickly dismiss a noncompliant protest, so contractors must be aware of these protest timeliness requirements.

Continue Reading Learning from Bid Protests: Don’t Lose Your Protest Before You Begin

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.

Continue Reading Hurricane Recovery Contractors Beware

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.

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

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.

Continue Reading DoD IG Report Highlights Flaws in DLA Compliance with Buy American Act and Berry Amendment

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