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One of the more significant developments in 2018 for both small business primes and large companies with small business subcontractors was the passage of the Small Business Runway Extension Act (the “Act”), which was signed into law December 17, 2018.  The Act, in amending the Small Business Act, increases the look-back period for determining a contractor’s size status based on average annual revenues from three years to now five years.  For many services-based procurements, a…
One of the biggest differences between federal government and commercial contracting is that certain clauses may be incorporated by reference (and hence controlling) in a federal contract even if the clause was not expressly included in the contract by the parties.  In a departure from the general principle that contracts should only reflect the bargain made by the parties, and hence courts should not read provisions into a contract that are not there, federal government…
Following Escobar, the issue of materiality remains at the forefront of False Claims Act motion practice at both the pleadings and judgment stage. Escobar emphasized that the FCA materiality requirement is demanding. In the case of Gilead Sciences, Inc. v. United States Ex Rel. Jeffrey Campie, et al. the respondents, qui tam relators, learned that the United States might agree on the law, but not the merits of the claim. In Gilead Sciences, respondents…
As yet another government shutdown looms on the horizon, contractors must again prepare for the ramifications of a shutdown.  At present, the President does not look likely to sign a budget bill unless Congress includes significant appropriations for a border wall which also does not appear likely.  If no compromise is reached, parts of the government could begin to shut down as early as next week (December 21).  While industry has no control over Washington…
If you bid, but lost out, on a solicitation issued by the Federal Aviation Administration (FAA), you may be thinking of filing a protest to challenge the award.  However, FAA procurements are unique in the sense that protests of such procurements are not decided by either the U.S. Government Accountability Office (GAO) or the U.S. Court of Federal Claims, the two venues which decide nearly every other type of protest.  The FAA is one of…
Every manufacturing contract, including construction contracts, with the government contains a myriad of terms and conditions and other requirements, including the numerous provisions set forth in the Federal Acquisition Regulation (FAR) that are often incorporated expressly or by reference into the contract.  Understandably, contractors focus on the contract’s specifications, schedule, terms for payment, and certifications of compliance with various contractual and regulatory requirements.  But, while these items are undoubtedly central and must be closely monitored,…
Today, the SBA issued major proposed rule changes to the HUBZone program. This is the first comprehensive revision to the HUBZone rules since the program’s implementation nearly 20 years ago, and the changes are intended to improve the predictability and stability of the program for participants. In general, to qualify as a HUBZone firm, the firm must have its principal place of business located in a HUBZone (historically underutilized business zone) and 35%…
It is not uncommon for government contractors to have one or more related companies (e.g., parent/subsidiary companies) involved in the industry.  One way the government keeps track of such related entities is to utilize Commercial and Government Entity (CAGE) codes.  These codes are used for a variety of purposes, including facility clearances. As a recent Government Accountability Office (GAO) decision reminds contractors, CAGE codes are material and play an important role in establishing the precise legal identity…
The Ninth Circuit Court of Appeals in the recently issued case of United States ex. rel. Rose v. Stephens Institute (Rose) held that the two-step test of Universal Health Services, Inc. v. United States ex rel. Escobar (Escobar) is mandatory in implied false certification cases brought under the False Claims Act (FCA). In Escobar, the Supreme Court held that implied certification cases under the FCA can proceed where the defendant makes a claim with specific…
Customers will frequently want you to complete performance sooner than may be required by the contract.  When presented with such a dilemma, contractors face the challenge of keeping the customer happy while performing the work in a manner that will meet specifications and the contractor’s business expectations.  To navigate this process effectively, it is important for contractors to have a working knowledge of the circumstances in which an acceleration claim may arise and what to…