Government Contracting

Prohibitions Against Pay Secrecy Policies (January 2016)
This Client Alert discusses a recent Final Rule adopted by the Department of Labor which applies to federal contractors (prime or subs) working on contracts exceeding $10,000 in value and entered into or modified on or after January 11, 2016. The Final Rule is part of a trend against confidentiality and other provisions that prohibit employees with federal contractors from discussing their compensation with co-workers. We suspect that many clients have employment agreements or other policies that will need to be reviewed in light of the trend and Final Rule.

Government Contracting Client Alert (February 2014)
The National Defense Authorization Act (NDAA) of 2013, which was signed into law by President Obama over a year ago in January 2013, made numerous important changes to the limitation on subcontracting rules applicable to small business set-aside contracts.

Women-Owned Small Businesses Can Expect An Increase in Federal Contracting Opportunities As The WOSB Program Has Now Been Implemented Under the FAR (May 2011)
On April 1, 2011 DOD, GSA and NASA issued an interim rule designed to implement the Women-Owned Small Business Program (WOSB) under the government-wide Federal Acquisition Regulation (FAR) for all procurements covered under the FAR. 76 Fed. Reg. 18304 (April 1, 2011). This new rule creates FAR Subpart 19.15 which outlines the WOSB program and the procedures that a Contracting Officer (CO) must use for establishing restricted competitions for WOSBS, including Economically Disadvantaged WOSBs (EDWOSBs).

New Rules Designed to Protect Subcontrators From Primes Who do Not Fully or Timely Pay Invoices (February 2011)
On September 27, 2010 President Obama signed into law the Small Business Jobs and Credit Act of 2010 (SBJCA), which created a new rule which will hopefully provide some needed relief for those subcontractors who only receive partial or untimely payments from their less than reliable prime contractor teaming partners. As discussed below, the SBJCA appears to require contacting officers to expose and downgrade prime contractors who fail to fully or timely pay their subcontractors.

Recent Developments Affecting Small Businesses and Subcontracting Requirements (September 2010)
On March 4, 2010 the SBA published a proposed rule aimed at expanding federal contracting opportunities for women-owned small businesses (WOSBs), including economically disadvantaged women-owned small businesses (EDWOSBs). This latest proposed rule significantly builds on previous efforts over the past decade to increase the presence of WOSBs in government contracting. One of the purposes of the rule is to help agencies reach the existing statutory goal of awarding 5% of federal contracting dollars to WOSBs. According to reports, agencies have consistently failed to reach this goal.

SBA Proposes Overhaul To Small Business Contracting Program (February 2010)
This past October, the Small Business Administration proposed potentially far reaching changes to its 8(a) small and disadvantaged contracting program. SBA has conducted hearings and solicited comments on the proposed new rules. It is not clear when SBA will issue the final revised rule. The significant changes focus on SBA's rules governing joint ventures, mentor-protégé relationships, and qualification requirements for 8(a) contractors. Generally, the changes are designed to protect the intended beneficiaries of the 8(a) program, particularly protégés under mentor-protégé relationships, from overreaching partners. The following is a brief summary of some of the proposed changes.

Set Aside Programs Update (September 2009)
In two recent rulings, International Program Group, Inc., B-400278, (September 19, 2008) and Mission Critical Solutions, B-401057 (May 4, 2009), reconsideration denied (July 6, 2009) the GAO effectively rejected the arguments advanced by the SBA that under SBA's regulations there is "parity" among the HUBZone, 8(a), and Small Disadvantaged Veteran Owned Small Business (SDVOSB) programs and that contacting officers are given substantial discretion to consider contracts for these programs without having to prioritize one program above another.

FOIA Policies Update (July 2009)
One of the first actions of the Obama administration was the issuance of the President's January 21, 2009 memorandum implementing policy changes concerning the Freedom of Information Act (FOIA). The President's FOIA memo called on federal agencies to apply a presumption of openness and disclosure in handling FOIA requests and to disclose information rapidly.

Stimulus Bill Developments (April 2009)
On February 17, 2009 President Obama signed into law the American Recovery and Reinvestment Tax Act of 2009 (also referred to as "the Stimulus Bill"). Although the Stimulus Bill has been widely reported as including approximately $787 Billion in government spending and tax cuts, the specific details regarding how the Stimulus Bill will actually be implemented have not been as widely reported.

Update on FAR/SBA/HUBZone Issues (January 2009)
New requirements mandate the disclosure of criminal and civil violations and/or significant over-payments as well as other matters.

Update on Awarding of Task Orders and Enhancing Competition (September 2008)
Effective September 17, 2008 the government enacted an interim rule which amends FAR 16.503, 16.504, and 16.505, the provisions in the acquisition regulations that deal with indefinite quantity contracts. These amendments are designed to implement the Fiscal Year 2008 National Defense Authorization Act, Section 843 "Enhanced Competition for Task and Delivery Order Contracts".

New Business Ethics Rules (February 2008)
Effective December 24, 2007 contracting officers are now required to include FAR Clause 52.203-13, Contractor Code of Business Ethics and Conduct, in all solicitations if the value of the contact is expected to exceed $5,000,000 and the performance period is at least 120 days, except for some situations.