Bass, Berry & Sims attorney Richard Arnholt provided comments on the questionable communications related to the bidding process for two separate contracts awarded by the St. Louis Economic Development Partnership. In both cases, email exchanges between individuals in the St. Louis county executive and economic partnership offices and a top donor to the county executive’s campaign revealed that the donor requested feedback on his proposal prior to formally submitting the bid. The Economic Development Partnership subsequently awarded the two government contracts to the donor’s company.
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Event – Regulatory and Enforcement Update: Early Themes for Government Contractors Under the Trump Administration
Todd Overman will be presenting at the 31st Annual Government Small Business Conference in Tampa on May 4, 2018. The event, co-hosted by the Florida Procurement Technical Assistance Center at USF and the Florida SBDC at USF, is a unique conference for small business owners to learn how to optimize business opportunities through informative workshops, panel discussions, and a Business Opportunity Expo featuring federal agencies.
Todd’s presentation, “Early Themes for Government Contractors Under the Trump Administration,” will highlight regulatory updates implemented by the Trump Administration that impact government contractors, as well discuss enforcement trends that could impact certain industries. Issues to be covered include domestic preference, small business developments, and cybersecurity enforcement.
EVENT DETAILS:
Richard Arnholt and Sylvia Yi Examine 2018 Changes in Challenges to Bid Protests from NDAA
In an article published by National Defense Magazine, Bass, Berry & Sims attorneys Richard Arnholt and Sylvia Yi provided insight on the significant changes affecting defense contractors from the National Defense Authorization Act (NDAA) for fiscal year 2018, specifically concerning bid protests.
There are two significant big protest changes in the new NDAA:
- the introduction of a new three-year pilot program in which large defense contractors will be required to pay the Department of Defense’s costs where a protest is denied by the Government Accountability Office (GAO); and
- the enhancement of post-award debriefing rights.
Small Business Fraud Leads to Large Monetary Liability in Recent Cases
Two Washington, D.C. area government contractors have agreed to pay the government for their respective roles in defrauding the U.S. Small Business Administration (SBA) in schemes to fraudulently obtain government contracts set aside for small businesses. These two cases highlight the importance of small business compliance and the submission of accurate and complete certifications.
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General Services Administration Announces Plans to Update Cybersecurity Requirements for Contractors
In mid-January, the General Services Administration (GSA) released their Semiannual Regulation Agenda. Within this agenda, GSA announced plans to update requirements in the General Services Administration Acquisition Regulation (GSAR)—concerning reporting cyber incidents that potentially affect GSA or its contractors.
The agency will be turning to the Federal Information Security Modernization Act of 2014 (FISMA), along with other cyber regulations, as a model on how to update its policies. These updates would be improvements to the existing cyber incident reporting policy within GSA Order CIO 9297.2—i.e. GSA Information Notification Policy. By integrating these updated policies into the GSAR, contracting officers would be required to include cyber incident reporting requirements within all of their procurement contracts.
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Event: Due Diligence and Unique M&A Issues in Government Contracts
Our attorneys will be participating in a panel discussion on unique M&A issues in government contracts. The panel will address key M&A issues, including due diligence, differences in transactions with public and private companies, and solutions to common government contracts issues.
Sylvia Yi will moderate and Todd Overman will be a panelist for this event that will be held at Wiley Rein in Washington, D.C.
EVENT DETAILS:
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
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.
Mentor Protégé Joint Venture Allowed to Proceed with Contract Even Though Ineligible to Bid
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.
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Chevron Deference: Should a Government Agency Get to Decide its Own Contract Disputes?
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
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).
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Learning from Bid Protests: Don’t Lose Your Protest Before You Begin
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.