In an unusual turn of events, the SBA Office of Hearings and Appeals (OHA) recently reversed course and granted a Petition for Reconsideration in a case involving a challenge to the Service-Disabled Veteran-Owned Small Business (SDVOSB) status of a company. (CVE Protest of Blue Cord Development Group, LLC, SBA No. CVE-188-P (2021)) After initially determining that the company was not controlled by service-disabled veterans because the relevant manager lacked the necessary control and experience, OHA granted the Petition for Reconsideration and overturned that determination.
The Small Business Administration’s HUBZone program provides federal contracting assistance for qualified small business concerns located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas. The Small Business Administration defines HUBZones and publishes a map identifying the location of all HUBZones. Certified businesses located in a HUBZone are eligible to participate in the HUBZone program goal of awarding at least three percent of federal contract dollars.
The Contract Disputes Act establishes the formal process for resolving nearly all claims and disputes that arise under federal government contracts. It is the source of the requirement that contractors certify claims in excess of $100,000, the contracting officer’s final decision, and the deadlines for bringing a dispute to the Court of Federal Claims or an agency board of contract appeals.
It is also the source of the federal government’s authority to use mediation and other forms of alternative dispute resolution. Today we review six key things contractors should know about mediating contract claims and disputes at the Armed Services Board of Contract Appeals.
The Biden Administration has committed to making cybersecurity a top priority and is now turning its focus towards energy infrastructure, which is widely recognized as vulnerable to cyberattack due to grid control systems. The U.S. Department of Energy (DOE) has launched a 100-day initiative to “advance technologies and systems that will provide cyber visibility, detection, and response capabilities for industrial control systems of electric utilities.”
Contractors interested in contracts with the Federal Aviation Administration (FAA) should be aware that FAA bid protests are different from protests involving other federal agencies. The FAA’s Office of Dispute Resolution for Acquisition has exclusive jurisdiction to resolve protests involving FAA procurements. Protest proceedings at ODRA are different from those at the Government Accountability Office and the Court of Federal Claims.
Mentor-protégé programs, such as the government-wide one at the SBA for all small business concerns, are designed to help small contractors engage in federal contracting by allowing larger, more experienced mentor firms to provide assistance to protégés. Generally, the proteges receive financial, technical, or management aid from mentors, and the mentors may receive subcontracting goal credits, reimbursement of expenses, and other incentives in return. One of the key concepts behind these programs is to increase the capacity of small business concerns to compete for contracts they would not ordinarily qualify for otherwise. The U.S. Government Accountability Office’s (GAO) recent decision in Innovate Now, LLC, B-419546, Apr. 26, 2021, confirmed this underlying principle.
A unique aspect of doing business with the federal government is the built-in limits on a contractor’s right to assign the contract or the right to payment under the contract to third parties. The Anti-Assignment Act (41 U.S.C. § 6305) prohibits the transfer of a government contract or interest in a government contract to a third party. An assignment of a contract in violation of this law voids the contract except for the Government’s right to pursue a breach of contract remedies. What’s a contractor to do when it is acquired/merged with another firm, is restructured, or goes through a variety of other types of corporate transaction? The Federal Acquisition Regulations recognize that firms involved in government contracts get bought and sold from time to time and includes procedures for the novation of contracts in certain situations to avoid a potential violation of the Anti-Assignment Act.
On April 27, 2021, President Biden issued a new Executive Order that raises the federal contractor minimum wage to $15 per hour, from the current $10.95 per hour, starting January 30, 2022.
Biden’s new Executive Order is nearly a word for word retread of the Obama Administration’s Executive Order 13658 (originally setting a $10.10 federal contractor minimum wage), with some notable exceptions:
- The federal contractor minimum wage is raised to $15 per hour starting January 30, 2022
- The current tipped worker federal contractor minimum wage, setting a lower hourly minimum wage just for tipped workers, is phased out by January 1, 2024; and
- The Trump Administration exemption for certain “recreational services on federal lands” (Executive Order 13838) is revoked.
What remains the “same” is the following:
On March 31, 2021, in United States ex rel. Felten v. William Beaumont Hospital, No. 20-1002, 2021 WL 1204981 (6th Cir. Mar. 31, 2021), the U.S. Court of Appeals for the Sixth Circuit held that the False Claims Act’s (FCA) anti-retaliation provision protects former employees alleging post-termination retaliation. The decision creates a split with the Tenth Circuit, which held in 2018 in Potts v. Center for Excellence in Higher Education, Inc., 908 F.3d 610 (10th Cir. 2018), that former employees are excluded from the scope of the FCA’s anti-retaliation provision. While current employees are undoubtedly protected under the provision, Felten ultimately leaves the question of whether former employees may recover for post-termination retaliation under the FCA unsettled across all circuits.
In today’s world, there is a tendency to believe that everything must be preserved forever. The common belief is that documents, emails, text messages, etc. cannot be deleted because doing so may be viewed as spoliation (i.e., intentionally destroying relevant evidence). A party guilty of spoliation can be sanctioned, which can include an adverse inference that the lost information would have helped the other side. But that does not mean that contractors have to preserve every conceivable piece of information or data under all circumstances. There are key differences between routine document destruction (when done before receiving notice of potential claims or litigation) and spoliation.