In an article published in the November 2018 issue of the ACC Docket, I co-authored an article with Elliot Burger, senior legal counsel at Linamar Corporation in Ontario, Canada discuss the expanding role of the Committee on Foreign Investment in the United States (CFIUS).  CFIUS is the U.S. government committee that reviews transactions that could result in control of a U.S. business by a foreign person in order to determine whether the transaction could harm U.S. national security.

Continue Reading Foreign Acquisition of U.S. Assets: Aggressive Actions Likely to Continue

I recently authored an article for Strategic Consulting Solutions, Inc. (SCS) GovCon Advisor – a monthly news source for the government contracts industry. The article outlines the requirements of the Small Business Administration’s (SBA) All Small Mentor-Protégé Program (ASMPP), focusing on the Mentor-Protégé Agreement (MPA) and the recent Hendall case. As I point out, “The Hendall case is a great example of one of the primary business development benefits under the ASMPP – the ability for a large business and small business to form a joint venture and pursue a small business set aside contract as a team. Without the ASMPP JV affiliation exception – these businesses would normally be considered affiliates and unable to pursue the opportunity as a joint venture.  The case also highlights the importance of carefully drafting the MPA and being very specific as to the benefits the protégé will receive.”

  • Mandatory declarations of certain transactions now required
  • Certain changes to pre-existing regulations also announced and effective immediately
  • Mandatory declaration requirement may not ease burden on parties filing with CFIUS

On October 11, the U.S. Treasury Department took the first steps to implement the significant changes introduced under the Foreign Industrial Review and Risk Modernization Act (FIRRMA). FIRRMA broadens the mandate of the Committee on Foreign Investment in the United States (CFIUS), which reviews foreign investments in the United States that could impact U.S. national security.

Most notably, the Treasury Department is establishing a pilot program that imposes new obligations on foreign parties making investments, even non-controlling investments, in U.S. businesses involved in 27 explicitly designated industries. The pilot program defines such investments as “pilot program investments.”

Continue Reading CFIUS Pilot Program Creates New Obligations and Challenges

Conditioned Agreements to Negotiate (CAN)

When acquiring or selling small businesses, government contractors need to be cognizant of the Small Business Administration’s (SBA) “present effect rule.” Under this rule, SBA will find that certain letters of intent (LOI) or other agreements to merge have a “present effect” on the buyer’s ability to control the small business seller. Numerous decisions by the SBA’s Office of Hearings and Appeals (OHA) have discussed the acceptable parameters of LOIs.

In a recent decision, OHA further refined the elements considered in the determination of whether an LOI amounts to an “agreement in principle.” Continue Reading You “CAN” Avoid Affiliation in Negotiating an Acquisition

On October 16, I am joining Chris Waskowich, CIO of V2 Systems, for an hour-long webinar. We will help you understand what the NIST standards are, how they can impact your current and future DoD work, and most importantly how your company can get into compliance.

I will provide an update on DoD’s recent regulatory and policy updates and the impact of noncompliance, and Chris will provide practical guidance on how to bring your organization into compliance.

  • Economic sanctions and export restrictions extended
  • Russian investment in United States likely subject to heightened scrutiny
  • Diligence on Russia transactions and business partners is essential to ensure compliance

Since the beginning of August 2018, the United States has taken multiple actions that will affect U.S. trade with Russia.  The actions cover exports to Russia, doing business with Russian partners, and potential Russian investment in the United States.  These actions have added to the already challenging landscape of conducting business in and with Russia.

Economic Sanctions in Place Since 2014 Are Expanded Again

The United States has maintained targeted economic sanctions on Russia since 2014.  Most of these sanctions are administered by the U.S. Treasury Department, Office of Foreign Assets Control (OFAC).

These sanctions ensnare many prominent Russian individuals and entities.  They have also ensnared prominent U.S. companies: see our July 2017 blog post on penalties imposed against Exxon for Russia sanctions violations.  For an example of how sanctions have been periodically and consistently extended, see our September 2016 blog post.

Continue Reading Update on Russia: Restrictions Expanded to New Actors, Industries

On September 24, 2018, the U.S. Department of Veterans Affairs (VA) issued a final rule that alters its regulations governing the Veteran-Owned Small Business Verification Program.  The final rule, “VA Veteran-Owned Small Business (VOSB) Verification Guidelines,” will go into effect on October 1, 2018.  This new rule brings much awaited clarity and uniformity to the regulations governing the VA’s ownership and control requirements for VOSBs and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs).

Details of the VA VOSB Verification Guidelines

The rule places exclusive authority to implement VOSB verification regulations in the Small Business Administration (SBA), and goes so far as to seek the removal of all references to “ownership” or “control” from VA regulations.  Additionally, the rule provides clarification on certain portions of the VA verification process, and outlines the circumstances that will allow a company to qualify as a VOSB or SDVOSB under a surviving spouse or active employee stock ownership plan (ESOP).

Continue Reading VA Concedes Sole Responsibility for Verifying Veteran Contractor Ownership and Control to the SBA

I will be presenting the topic of “Federal Procurement Protests & Appeals” at the 2018 PDS/SCS GovCon Seminar on Thursday, October 18. This event provides attendees with up-to-date information on compliance and changes in the government contracts industry.

For more information about and to register for the event, please visit the event website.

I provided insight on Tesla Inc.’s recent announcement of potential Saudi Arabian funding to take the company private and how this move could draw scrutiny from the Committee on Foreign Investment in the United States (CFIUS).  “The big question is whether this technology is really sensitive enough and whether if acquired by a non-U.S. company it could have some kind of negative impact on U.S. national security,” I explained. I noted that this could be possible since the Trump administration has announced possible tariffs on auto imports for national security reasons.

Continue Reading Potential CFIUS Interest in Tesla Privatization

Bass, Berry & Sims attorney Thad McBride provided insight for a Bloomberg Law article on how recently enacted reforms related to the Committee on Foreign Investment in the United States (CFIUS) will spur reviews of more transactions between U.S. companies and foreign investors.

Continue Reading CFIUS Reform and the Likelihood of Increased Filings

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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