GOVERNMENT CONTRACTS
Novation and Recertification Requirements: A Post-Closing Guide for GovCon M&A Deals, PilieroMazza Blog, Isaias “Cy” Alba, IV, Abigail “Abby” L. Baker
After the sale or acquisition of a business or its assets, there are often one or more post-closing requirements that business owners must complete. In deals involving government contractors, two of these requirements are especially important: contract novation and size recertification. Below, PilieroMazza attorneys provide a post-closing guide for government contractors on meeting novation and recertification requirements to avoid costly penalties such as loss of contract award or criminal liability. Read more here.
Government Accountability Office (GAO) Report: Defense Contracts, Better Monitoring Could Improve DOD’s Management of Award Lead Times
On March 14, GAO released a report addressing recommendations to reduce the time needed for awarding contracts. Recommendations include that DOD assess how existing procurement data can be leveraged to monitor procurement administrative lead time (PALT) across the department, determine if the PALT Tracker is necessary to supplement existing procurement data, and make improvements to its PALT Tracker if it continues to be used to track PALT for procurements over $250 million in value. The full Report is available here.
General Services Administration (GSA) Acquisition Letter (AL): Guidance on Payment for Software Licenses Delivered via SaaS
On March 14, GSA issued an AL providing guidance to Contracting Officers who may have questions about purchasing cloud-based Software as a Service (SaaS). It clarifies that under specific conditions an upfront payment is not considered an advance payment. As there are potential price savings and small business benefits to upfront payment for SaaS, this AL supports GSA’s strategic objective that its portfolio of offerings meets market demand for products, services, and solutions and the desired acquisition approaches. Read more here.
Congress, White House Lock in a Funding Deal but Face a Tight Timeline to Avert Shutdown, Government Executive
Congressional leaders and the White House have agreed to a funding package that would end the shutdown threat for the rest of fiscal 2024, though lawmakers now have a tight schedule to send the measure to the president’s desk before some agencies would be forced to shutter. Read more here.
Understanding Fixed-Price Gov’t Contracts and Inflation Relief, Law360
The U.S. government is the single largest consumer of goods and services in the world. It engages with thousands of contractors through the award of procurement contracts, purchasing everything from commercially available off-the-shelf items to raw materials and aircraft engines, to landscaping services and advanced weapons systems, and virtually everything in between. Read more here (subscription required).
Upcoming Government Contracts Presentations
WEBINAR: FAR Part 17: Special Contracting Methods, Isaias “Cy” Alba, IV, March 22, 2024. Read more here.
WEBINAR: Unlocking the Secrets of Debriefings, Government Evaluation of Proposals and Protests, Katherine B. Burrows, Eric Valle, March 28, 2024. Read more here.
WEBINAR: Small Business Contracting & Subcontracting, Isaias “Cy” Alba, IV, April 19, 2024. Read more here.
BID PROTESTS
Claims Court Lets $282M USPS Telematics Deal Protest Stand, Law360
A Federal Claims Court judge has refused to toss a fleet-tracking technology company’s protest of a $281.8 million U.S. Postal Service deal for a vehicle telematics system, rejecting USPS’ contention the company could not sue without first exhausting agency-level remedies. Read more here (subscription required). The Opinion is available here.
CONSTRUCTION
Military Subcontractor Says Partner Tried to Poach Work, Law360
A federal subcontractor tasked with building secure facilities for the Marine Corps hit its own subcontractor with a $7 million lawsuit on Friday, accusing its former partner of deliberately undermining that construction work, in an effort to “steal” related contracts. Read more here (subscription required). The Complaint is available here.
CORPORATE & ORGANIZATIONAL GOVERNANCE
Corporate Transparency Act Updates for Government Contractors and Commercial Businesses: Constitutionality, Exemptions, and Substantial Control, PilieroMazza Client Alert, Meghan F. Leemon, Paul H. Tracy
The Corporate Transparency Act (CTA), which came into effect on January 1, 2024, has significant implications for government contractors and commercial businesses. This client alert summarizes recent developments in the CTA—including constitutionality, physical office requirements, unpopulated joint ventures, and substantial control—to help businesses comply and avoid harsh enforcement penalties. If you formed an entity on or after January 1, 2024, and are not subject to one of the exemptions, then you must file your initial BOI report within 90 days from the effective date of creation or registration of the entity. This is especially important for any joint ventures formed on or after January 1, 2024. Read more here.
5th Circ. Blocks SEC Climate Reporting Regulations, for Now, Law360
The Fifth Circuit on Friday temporarily blocked the implementation of the U.S. Securities and Exchange Commission’s new emissions reporting requirements, issuing an administrative stay in a challenge brought by oil and gas company Liberty Energy Inc. Read more here (subscription required).
FALSE CLAIMS ACT
Department of Justice (DOJ) Press Release: Argus Information & Advisory Services Agrees to Pay $37M to Settle Allegations That It Misused Data Obtained under Government Contracts
Argus Information & Advisory Services, Inc. (Argus) has agreed to pay the United States $37 million to resolve claims under the False Claims Act and the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), involving allegations that Argus improperly accessed, used, and retained anonymized credit card data received pursuant to contracts with various federal regulators, including the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (FRB), and the Consumer Financial Protection Bureau (CFPB). Read more here.
LABOR & EMPLOYMENT
Department of Labor (DOL) Rules: Semiannual Regulatory Agenda
On March 14, DOL published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed. Notable regulations include:
- Proposed Rule Stage
- Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees
- National Apprenticeship System Enhancements
- Final Rule Stage
- Employee or Independent Contractor Classification Under the Fair Labor Standards Act
Department of Labor (DOL) News Release: DOL Releases Research on Continued Economic Effects of Job Segregation, Pay Disparities on Black, Hispanic Women
On March 12, DOL released new research revealing that Black women lost $42.7 billion in wages compared to white men in 2023, and Hispanic women lost $53.3 billion in wages. These losses are driven entirely by the fact that Black and Hispanic women are concentrated disproportionately in jobs that, on average, pay lower wages than those held by white men. Read more here.
OPM’s Labor-Management Forum Guidance Charts New Ground for Union Policies, Government Executive
Federal agencies will be expected to embrace the return of collaborative councils, where federal employee unions may weigh in on future workplace policies, and measure the forums’ impact on employee engagement, agency performance and cost savings. Read more here.
Upcoming Labor & Employment Presentations
PM WEBINAR: New Wave of Pay Transparency Requirements Affects Employers and Federal Contractors, Sarah L. Nash, Sara N. Strosser, April 4, 2024. Read more here.
WEBINAR: From Compliance to Competitiveness: Revamped DBA Rule Reshapes Labor Landscape for Construction Contractors, Nichole D. Atallah, Sarah L. Nash, April 5, 2024. Reach more here.
SEMINAR: What’s the Latest on CMMC, Nichole D. Atallah, Daniel Figuenick, III, April 8, 2024. Reach more here.
EMPLOYEE INCENTIVE AND BONUS PLANS
Unlocking the Potential of Phantom Equity: Incentive and Compensation Strategies to Attract and Retain Top Talent, PilieroMazza Blog, Abigail “Abby” L. Baker, Sarah L. Nash, Robert Troiano
Navigating the landscape of employee incentives can be complex, particularly when exploring non-traditional compensation methods. Phantom stock, also known as synthetic equity, offers a unique solution for business owners seeking to incentivize and retain key personnel without giving away ownership in the company. Below, PilieroMazza attorneys answer commonly asked questions regarding the nature of phantom stock, outlining its structure, benefits, and the strategic considerations involved with this valuable tool for attracting and retaining top talent. Read more here.
LITIGATION & DISPUTE RESOLUTION
Contractor Seeks Arbitration in $3M Guam Military Base Fight, Law360
An electrical contractor has petitioned a Guam federal court to order a California-Japanese joint venture that had hired it for a project to improve U.S. military facilities to arbitrate their dispute related to nearly $3 million in allegedly unpaid costs. Read more here (subscription required).
Dodging Attempt Doesn’t Invalidate Service, 3rd Circ. Told, Law360
A consulting firm suing a construction company for failing to pay for its services related to a separate lawsuit against the U.S. Department of Veterans Affairs told a Third Circuit panel Wednesday that it served process to the defendant, despite the principal’s alleged attempts to dodge service. Read more here (subscription required).
REAs, CLAIMS, & APPEALS
ServeFed, US Army Resolve Contract Performance Rating Dispute, Bloomberg Law
ServeFed. Inc. and the US Army settled an appeal where the company alleged that it unfairly received an “unsatisfactory” performance rating under a contract to provide healthcare staffing services at Fort Hood in Texas, a contract appeals board said in an order released Monday. Read more here (subscription required).
Upcoming REAs, CLAIMS, & APPEALS Presentations
PilieroMazza Annual Review: Lessons from 2023 Contract Claims and Appeals Decisions Affect Approach to 2024 Cases, Lauren Brier, Jonathan “Jon” R. Neri, April 18, 2024. Read more here.
