Federal Procurement Policy

Hand with megaphoneHello from Nashville, Tennessee! I’m currently at the National 8(a) Association’s Winter Conference and had the privilege of participating in a great panel discussion with some of the leading small business scholars and practitioners in the country. It was truly a great experience. Since I’m here and it’s fresh on my mind, I thought I’d share something that all SDVOSBs should know: Your world is about to change.

Continue Reading National 8(a) Winter Conference – Changes Coming for SDVOSBs

The National Defense Authorization Act (“NDAA”) for Fiscal Year 2018 includes enhanced post-award debriefing requirements for the Department of Defense (“DoD”). This change is likely a response to the Office of Federal Procurement Policy’s (“OFPP”) January 5, 2017 memorandum. The memorandum debunked certain misconceptions about the debriefing process and encouraged agencies to adopt best practices and maximize the value of debriefings. One such myth that the OFPP’s memorandum debunked was that debriefings always lead to protests. The memorandum advocated for more transparency in the debriefing process, explaining that, in fact, an effective debriefing process can greatly reduce the frequency of protests. Continue Reading Good News for Department of Defense Contractors: Enhanced Post-Award Debriefing Requirements are on Their Way!

This article originally appeared in The Legal Intelligencer on January 02, 2018

On Nov. 29, 2017, U.S. Deputy Attorney General Rod Rosenstein announced a revised Foreign Corrupt Practices Act Corporate Enforcement Policy. The new policy contains a clear roadmap for avoiding corporate criminal liability that corporate counsel would be wise to follow.

The Foreign Corrupt Practices Act of 1977, 15 U.S.C. Section 78dd-1 et seq. (FCPA) makes it unlawful for an “issuer” or “domestic concern” defined by the act to make payments to foreign officials for the purpose of obtaining or retaining business. Continue Reading What In-House Counsel Must Know About the Revised Corporate Enforcement Policy

Last month, we outlined Congress’ plan to block the implementation of President Obama’s Fair Play and Safe Workplaces executive order. Today, we report that the prognosis has grown even more grim for the former President’s initiative, as both the House of Representatives and Senate have passed measures blocking the order from taking effect – now, the only remaining hurdle to a full repeal of the Fair Play and Safe Workplaces order is the signature of the President.  Continue Reading The End is Near for “Fair Play and Safe Workplaces”

For the last few months, we have been following the troubled rollout of the “Fair Play and Safe Workplaces” rules, an Obama-era Executive Order that placed new requirements on contractors prohibiting certain labor practices. It is now becoming increasingly clear that the controversial act is likely to be a casualty of the new administration’s deregulatory agenda. Continue Reading Congress Strikes Blow to “Fair Play and Safe Workplaces”

In the wake of November’s elections, just about the only thing that Washington can agree on is a pervasive sense of uncertainty about the future, which includes the direction of government regulation. The fact that many incoming agency heads and cabinet secretaries come from nontraditional backgrounds and, consequently, do not have a long record of public comments only serves to deepen the apprehension across regulated industries.  Continue Reading A New World Order?

Last month, we reported that the Government Accountability Office’s (“GAO”) statutory authority to hear bid protests on civilian task orders exceeding $10 million had expired, leading to a parade of dismissed protests and disappointed contractors left without legal recourse. As of last week, there is reason to be hopeful, as the House of Representatives and Senate agreed on legislation that promises to permanently restore the GAO’s authority to hear civilian bid protests.  Continue Reading Proposed 2017 NDAA is a Mixed Bag for Government Contractors

Several months ago, we summarized the issuance and implications of Executive Order 13673, known as the “Fair Play and Safe Workplaces” order. In short, the order requires federal contractors to:

  • Report labor law “violations” of itself or any of its subcontractors (where the estimated value of the subcontract exceeds $500,000) under various federal employment and labor laws;
  • Restrict the use of binding, pre-dispute arbitration provisions in non-collectively bargained employment contracts; and
  • Establish “paycheck transparency” through the issuance of wage statements to all individuals performing work under a covered contract.

Continue Reading Federal Court Puts a Halt to “Fair Play and Safe Workplaces”

The Government Accountability Office (“GAO”) issues statistics each year regarding the outcome of bid protests.  In 2015, there were 2,639 cases filed and there we 587 decisions on the merits.  Of those, only 68 protests were sustained.  According to the way the GAO presents its statistics, that would indicate that protestors prevailed approximately 12% of the time.  In reality, since many protests were withdrawn or summarily dismissed, the protesters only prevailed in 68 of the 2,639 protests filed and the true success rate was closer to 3%.  With those odds, why would anyone file a GAO bid protest?  The answer requires a little closer scrutiny since statistics can be misleading.

Continue Reading Deciding Whether to File a GAO Bid Protest