Generally, when a business is awarded a multi-year IDIQ contract, it retains its “small” business designation unless a contracting officer (CO) requires the business to recertify its size status, and has since grown larger than the small business threshold. A recent decision from the Small Business Administration’s (SBA) Office of Hearings and Appeals (OHA) throws a wrench into that general understanding when OHA found an implicit recertification requirement absent an express requirement or CO demand.Continue Reading Task Orders May Carry Implicit Size Recertification Requirements
Webinar: The FTC’s Proposed Ban on Non-Competes and What It Could Mean for You
On January 5, the Federal Trade Commission (FTC) proposed a new rule that would prohibit employers from imposing non-competes on workers, and, if finalized, will have far reaching implications for many businesses operating in the United States. The proposed ban would make it illegal for employers to enter into or attempt to enter into non-compete agreements with workers, continue to maintain such agreements if they already exist, or represent that a worker is subject to a non-compete. It would further require companies with active non-competes to inform workers that they are void. Under the proposed rule, non-competes that bar workers from accepting competing employment or starting a competing business would be prohibited.
Join us for a webinar in which Bass, Berry & Sims labor & employment and antitrust attorneys will address topics and concerns pertaining to the proposed ban, including:Continue Reading Webinar: The FTC’s Proposed Ban on Non-Competes and What It Could Mean for You
Attention SBIR Applicants…Remember that Affiliation Rules Still Apply
The Small Business Innovation Research (SBIR) program has an interesting construction. With seemingly no competition to bring size protests and the successful completion of a previous grant before a second grant, the unusual process can make participants forget that normal Small Business Administration (SBA) size regulations still apply. A recent SBA Office of Hearings and Appeals (OHA) decision reminds SBIR awardees to comply with all affiliation rules and ownership requirements or risk losing follow-on SBIR awards.Continue Reading Attention SBIR Applicants…Remember that Affiliation Rules Still Apply
Arizona Judge Dismisses Challenge to Government Contractor Minimum Wage Executive Order
On January 6, U.S. District Judge John Tuchi in the District of Arizona agreed to dismiss a lawsuit brought by five states challenging the April 2022 Executive Order (EO), increasing the minimum wage for federal contractors to $15 per hour. Arizona, Idaho, Indiana, Nebraska, and South Carolina argued the administration did not have the authority to stipulate an increase in the minimum wage of federal contractors under the Federal Property and Administrative Services Act (FPASA). Judge Tuchi disagreed.Continue Reading Arizona Judge Dismisses Challenge to Government Contractor Minimum Wage Executive Order
Inflationary Relief for Government Contractors from National Defense Authorization Act
I examined how and whether the newly passed National Defense Authorization Act (NDAA) will provide inflationary relief for government contractors in a recent article for Reuters. Government contractors who had firm fixed price contracts awarded in the last two years are finding that the work performed now is more expensive due to rising inflation costs.Continue Reading Inflationary Relief for Government Contractors from National Defense Authorization Act
New Legislation Strengthens Disclosure Requirements for Potential Organizational Conflicts of Interest
On December 27, President Biden signed the Preventing Organizational Conflicts of Interest in Federal Acquisition Act into law. The legislation, ushered through Congress by a bipartisan group of backers, strengthens existing regulations around federal contractor conflict of interest mitigation and provides new requirements for agencies to follow to sniff out potential conflicts of interest. Continue Reading New Legislation Strengthens Disclosure Requirements for Potential Organizational Conflicts of Interest
Clarification: You Can Recover for Changes Implementing Executive Orders
The National Defense Authorization Act of 2023 includes a short but interesting provision reminding the Department of Defense (DoD) that the unilateral insertion of a new clause in a DoD contract is a change that may entitle a contractor to compensation. Section 805 of the recently signed legislation amends 10 U.S.C. 3862, “Requests for equitable adjustment or other relief,” inserting the following provision and making conforming amendments:
(c) Treatment of Certain Clauses Implementing Executive Orders.– The unilateral insertion of a covered clause into an existing Department of Defense contract, order, or other transaction by a contracting officer shall be treated as a change directed by the contracting officer pursuant to, and subject to, the Changes clause of the underlying contract, order, or other transaction.Continue Reading Clarification: You Can Recover for Changes Implementing Executive Orders
DOD’s Mentor Protégé Program Drops “Pilot” From Title as the NDAA Codifies the Initiative
On December 15, the U.S. Senate passed the National Defense Authorization Act (NDAA) for the Fiscal Year 2023 by an 83-11 vote. The annual legislation changes U.S. defense agencies’ policies and regulations and provides necessary guidance for how appropriations can be spent. It is frequently used to implement changes to federal procurement policy, and one of those changes this year is that Section 856 codifies the Department of Defense’s (DOD) Mentor-Protégé Program (MPP) – with some tweaks. Continue Reading DOD’s Mentor Protégé Program Drops “Pilot” From Title as the NDAA Codifies the Initiative
Register Now | PubK’s GovCon Annual Review Conference 2023
I am looking forward to presenting a panel titled “Mergers and Acquisitions” for the 2023 PubK’s GovCon Annual Review Conference alongside Susan Gabay (Houlihan Lokey) and Damien Specht (Morrison Foerster LLP). Our session will take place virtually on January 11, 2023, at 4:00pm ET.
For more information and to register, please click here.
DOJ’s Quixotic Defense of the Vaccine Mandate May Undermine Presidential Authority
As we have discussed at length on this blog, for more than a year federal courts have repeatedly held that, for various reasons, President Biden lacked the authority to mandate by executive order that government contractors can force their employees to be vaccinated against COVID-19 as a condition of contracting with the federal government. Even when the government claimed that the vaccines would prevent people from catching or spreading COVID-19, at which time there was arguably a medical basis for a mandate, it was clear that there was no statutory or constitutional basis for the authority asserted in Executive Order 14042. Continue Reading DOJ’s Quixotic Defense of the Vaccine Mandate May Undermine Presidential Authority