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.
Congress Proposes Tougher Reviews of Foreign Investments – Thad McBride for The New York Times
In a November 8 article in the New York Times, I provided insight on increased scrutiny of foreign investments in the U.S by the Committee on Foreign Investment in the United States (CFIUS). Lawmakers recently introduced legislation that would expand CFIUS authority, at least in part due to lawmakers’ concerns about continuing Chinese investment activity in the U.S. This legislation follows a rare case in September where President Trump invoked CFIUS in blocking a $1 billion acquisition of a U.S. semiconductor manufacturer by a Chinese-backed private equity fund.
As I noted in the article, CFIUS is “looking at a lot more deals than they have traditionally, and a lot more politically sensitive deals.” Under the newly proposed legislation, stricter and further reaching reviews may become the norm.
The full article, Targeting China’s Purchases, Congress Proposes Tougher Reviews of Foreign Investments, was published on November 8, 2017, and is available online.
WEBINAR – The Future of U.S. Sanctions on Iran: What You Should Do Amidst Uncertainties
U.S. Sanctions on Iran continue to be in a state of flux. Yet the opportunities in Iran mean that more and more companies are considering the possibility of entering the Iranian market. The continued uncertainty regarding the future of U.S. Sanctions on Iran implies the need for international companies to be prepared for any possible outcomes. Much business can now be done in Iran, but it is critical to proceed with caution.
I will be presenting a live webinar along with a panel of distinguished professionals and thought leaders organized by The Knowledge Group that will help parties conducting business with Iran understand the important aspects of this significant topic. We will provide an in-depth discussion of the Countering Iran’s Destabilizing Activities Act of 2017 as well as President Trump’s potential approach to JCPOA enforcement and implementation. We will also offer best practices in avoiding common pitfalls and risk issues as U.S.-Iran tensions rise.
Key topics include:
- Countering Iran’s Destabilizing Activities Act of 2017
- The Future of JCPOA
- Iran’s Program to Counter U.S. Sanctions
- Additional Sanctions – Implications to Businesses
- Best Practices to Avoid Pitfalls
The webinar will be held on Thursday, November 9 from 3:00 p.m. – 5:00 p.m. EST. Click here for more information or to register.
WEBINAR – Export Controls: Compliance Challenges and Best Practices
I am presenting a Clear Law Institute (CLI) webinar titled, “Export Controls: Compliance Challenges and Best Practices.” As the government continues to aggressively enforce its export laws, it is increasingly essential for exporters to understand the laws and their corresponding obligations. This webinar will explore the key challenges companies face when engaging in export transactions, as well as best practices for avoiding enforcement action.
Webinar topics include:
- Examining the primary US export controls laws and regulations
- Understanding penalties and recent enforcement actions
- Recognizing key compliance challenges
- Compliance best practices to prevent and detect violations
The webinar will be held on Wednesday, November 8 from 3:00 p.m. – 4:15 p.m. EST. This webinar has been approved for 1.25 hours of general Tennessee CLE credit. For more information and registration, visit the CLI website.
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). Continue Reading <em>Chevron</em> Deference: Should a Government Agency Get to Decide its Own Contract Disputes?
CFIUS, POTUS Block Chinese Acquisition of U.S. Semi-conductor Maker
More Acquisitions May Be Blocked in the Future
Last month, asserting national security concerns, President Trump blocked a $1.3 billion acquisition of Oregon-based Lattice Semiconductor by a subsidiary of the Canyon Bridge Fund (Canyon Bridge), a private equity fund backed by Chinese investors. This is one of the few instances to date in which a sale to a non-U.S. buyer of a U.S. company has been blocked under rules administered by the U.S. Committee on Foreign Investment in the United States (CFIUS). Yet the facts of this matter suggest that more potential acquisitions are likely to be blocked in the future.
Continue Reading CFIUS, POTUS Block Chinese Acquisition of U.S. Semi-conductor Maker
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.
Continue Reading Learning from Bid Protests: Don’t Lose Your Protest Before You Begin
Mentor Program Spawns 300 Partnerships in First Year, SBA Says
In an article posted by Bloomberg BNA, I discussed the success of the Small Business Administration’s (SBA) expanded mentor protege program one year post launch. Until October 2016, the mentor-protégé program was only available to just one category of disadvantaged businesses. But last year, the SBA expanded the program so all small businesses could participate and partner with larger government contractors in bidding for work.
“The first year has been a real success story for the SBA,” I stated in the article. “It’s been a long-awaited program.” I commended the SBA saying “The program’s leaders should be commended for keeping application wait times short; for getting the application and approval system entirely online; for working with companies on their applications to help improve their chances; and for raising awareness about the program.”
The full article, “Mentor Program Spawns 300 Partnerships in First Year, SBA Says,” was posted by Bloomberg BNA on October 10, 2017, and is available online (subscription required).
Calling All Women-Owned Small Businesses: Self-Certify with Caution
We provided insight on opportunities in government contracting for women-owned small business (WOSB) owners in a September 22, 2017, article in the Nashville Business Journal.
Tennessee is among the 10 fastest-growing states for women-owned companies and currently has approximately 64,000 women-owned businesses. The U.S. Small Business Administration’s (SBA) women-owned small business program aims to provide eligible businesses a better shot at securing government contracting opportunities, and since it began in 2011, the program has been updated to eliminate barriers to entry, such as the removal of contract caps on set-aside awards and the authority to award sole-source contracts. These improvements helped lead the government to meet and exceed its 5% contracting goal to women-owned small businesses for the first time in fiscal year 2015.
Continue Reading Calling All Women-Owned Small Businesses: Self-Certify with Caution
Court Rejects Cap on FCA Damages for Allegations of Subcontracting Plan Fraud
Last month, the U.S. District Court for the Eastern District of Washington denied a motion to limit damages against a government contractor, United States ex rel. Savage v. Washington Closure Hanford LLC, where the government sought several categories of damages for alleged False Claims Act (FCA) violations. With a case centered on a nuclear waste company falsely certifying compliance with small business plan participation requirements, the Court ruled that damages would not be limited to remedies provided in the contract.
Continue Reading Court Rejects Cap on FCA Damages for Allegations of Subcontracting Plan Fraud