Georgia Tech Procurement Assistance Center

The Navy gets tough on DFARS cybersecurity compliance

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Last year we told you about a 2018 Navy memo, known as the Geurts Memo, which required defense contractors to implement certain controls for NIST SP 800-171, some of them going beyond 171 requirements.  If you didn’t see our write-up, it can be found here: “Still Lagging on DFARS? The Navy Has A Memo For You”.

The Navy has now gone several steps beyond that 2018 memo and is requiring their contracting officers to implement a strict regime when it comes to their contractors’ compliance with NIST SP 800-171 and the Guerts Memo.

Continue reading at:  Sera-Brynn

Wait! Wait! Don’t sign that!

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Government Contracts attorneys have long advised clients to be wary of executing contact modifications containing broad release language.  In such situations, a simple modification extending the contract schedule or addressing a specific item of work can result in the government later taking the position that by executing the modification the contractor intended to release all related claims, no matter how tenuous the connection between the subject of the modification and the later claims.

A recent case from the Court of Federal Claims stands as a good reminder to contractors not to let their guard down when executing modifications with the government.  On September 23, 2019, the court issued a decision in Meridian Engineering Company v. The United States, No. 11-492C, in which it clarified the law surrounding the scope of releases and the doctrine of accord and satisfaction.

Continue reading at:  Government Contracts Insider

Protégé subcontract revenues from mentor hold no basis for economic dependence

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An important benefit of a mentor-protégé agreement (MPA) is that no determination of affiliation may be found between a protégé and its mentor solely because of assistance provided under the agreement.  A recent decision of the Small Business Administration (SBA) Office of Hearings and Appeals (OHA), Avar Consulting, Inc., upheld a size determination which found that a protégé was not affiliated with its SBA-approved mentor through economic dependence, even though the revenues it received from the mentor constituted over 70% of the revenues it received between formation and the date of size self-certification.  A small business government contractor that anticipates future affiliation with a business under the 70% economic dependence rule should consider entering into an SBA-approved small business MPA with that business to prevent future revenues it receives from the business from being considered when economic dependence is assessed.

Continue reading at:  Piliero Mazza

Are more FCA cases against small businesses on the horizon?

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On August 20, 2019, the U.S. Department of Justice announced that it had reached a $20 million settlement with Luke Hillier (Hillier), the majority owner and former CEO of a Virginia-based defense contractor, ADS, Inc. (ADS), to resolve “allegations that he violated the False Claims Act (FCA) by fraudulently obtaining federal set-aside contracts reserved for small businesses that his company was ineligible to receive . . . .”  The resolution of the claims against Hillier follows ADS’s payment of a separate $16 million settlement on related claims, as well as an additional $225,000 paid by Charles Salle, the former general counsel of ADS, to resolve claims arising from his role in the alleged scheme.  Combined, the $36 million total settlement is believed to be the largest FCA recovery in history based on allegations of small business contracting fraud.  Given the size of the collective settlement and the nature of the allegations against Hillier and ADS, small businesses everywhere—particularly government contractors—should anticipate a potential increase in the frequency of small business fraud-related FCA cases.

The case from which these settlements arose was originally filed in November 2013 and alleged that ADS caused its affiliates to falsely represent themselves as, among other things, Service-Disabled Veteran-Owned Small Businesses (SDVOSBs).  It further alleged that these false representations allowed ADS, through its affiliates, to compete improperly for set-aside opportunities that were intended to be available only to SDVOSBs and for which ADS was not eligible.  As a result of this improper access, ADS profited at the expense of both the government and eligible SDVOSBs.  The claims against ADS were settled in August 2017; however, the claims against Hillier remained outstanding until last month.

Continue reading at: Piliero Mazza

Big changes to the Buy American Act are coming—will they matter?

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On July 15, 2019, President Trump signed Executive Order 13881 addressing domestic preferences in government procurement.  Unlike Executive Order 13788 (April 18, 2017) and Executive Order 13858 (Jan. 31, 2019), which had no substantive effect on existing domestic preference statutes and regulations, this one does.

EO 13881 calls for the FAR Council to make two significant changes to FAR clauses implementing the Buy American Act.  The first increases the domestic content requirements for items to comply with the Buy American Act.  The second increases the price preference for domestic products.

Continue reading at:  The Contractor’s Perspective

Plan ahead to prevent proposal submission issues, says GAO

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When submitting bids, contractors should always double-check their proposal submission methods, whether it be a designated portal, email, or any other method, and do so well before the deadline. GAO recently had the opportunity to examine proposal submission issues related to a US Navy procurement and did not show sympathy for the contractor who experienced proposal submission issues right at the deadline.

Continue reading at:  SmallGovCon

Georgia SDVOSB architectural firm owner doesn’t need architecture license, says OHA

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Recently, OHA determined that SDVOSB owners aren’t always required to personally possess the licenses required for their businesses.

In Veteran’s 1st Architecture, LLC, SBA No. CVE 122-A (2019), Veteran’s 1st appealed the VA CVE’s denial of its SDVOSB recertification application. The business, a Georgia architectural firm, was initially founded in December 2014 and first verified by CVE the following year. Three years later, the business applied for reverification, but was denied.

CVE denied Veteran’s 1st‘s reverification for three primary reasons, all based on the same fact: the service-disabled veteran owner of Veteran’s 1st Architecture was not a state-registered architect himself, though he did employ one. As a result, CVE held that a non-veteran architect “controlled” the architecture firm. OHA disagreed, holding that despite not possessing the license, the owner still maintained control.

CVE first found that because Veteran’s 1st‘s owner did not possess the “critical” architect license, he could not, and did not, control the company’s daily business operations. Relying on Georgia law, CVE determined that “the practice of architecture by a limited liability company “had to be under the “‘responsible control’ of a Georgia-registered architect.”

OHA held otherwise, stating that the “practice of architecture” composed only a portion of the business’s daily operations.

Continue reading at:  SmallGovCon

SBA announces a major change to SBIR/STTR data rights protection

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On April 3, 2019, the Small Business Association (SBA) released a revised Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) program policy directive, which went into effect May 2, 2019 (the “New Policy”).  This New Policy made important and drastic changes to Data Rights protections afforded to SBIR/STTR awarded small business companies.  Government contractors should understand these major changes and consider the impact on company operations related to commercialization of intellectual property developed with government funding.

Old Policy – Four Years Plus Extensions

Prior to this New Policy, a small business (“Company”) had four years, from the date of deliverables, of Data Rights protections that could be continuously renewed/extended.  During this time, the government was not able to use, modify, reproduce, release, perform, display or disclose any Data or Computer Software that was part of the Company’s research and development under a SBIR or STTR program.  After the four years had ended (unless extended/renewed), the government would be granted a royalty-free license to use the Data or Computer Software, as well as authorize other third parties to use the Data or Computer Software on the government’s behalf for government purposes. Further, the government would be relieved of all prohibitions on disclosure and would assume no liability for the unauthorized use of such Data or Computer Software by third parties.  Prior to the New Policy, the government was not authorized any right or use to the Data or Computer Software during the four-year period (or during any extended/renewed period). However, the government was granted Unlimited Rights to the Data or Computer Software at the end of the protection period.

New Policy – 20 Years with No Extensions

Under the New Policy, a Company now has 20 years, from the date of award of an SBIR or STTR funding agreement, of certain Data Rights protections.  During this time, the government only has limited rights in its use of the Data or Computer Software.  The major right is that the government has the ability to properly evaluate the technology.  After the protection period, rather than obtaining Unlimited Rights under the old policy, the government now only obtains Government Purpose Rights to the Data and Computer Software.  However, there are nuances associated with the data rights.

Continue reading at:  Snell and Wilmer

FedBizOpps to move to beta SAM on November 8, 2019

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The General Services Administration (GSA) has announced that the Federal Business Opportunities website — commonly referred to as “FedBizOpps.gov” — will be decommissioned “starting on November 8, 2019” and that the website’s “critical functionality will be transitioned into beta.SAM.gov in the first quarter of the 2020 fiscal year.”

This transition will impact virtually every federal government contractor, as FedBizOpps.gov currently serves as the single government-wide point of entry for federal government opportunities over $25,000.

Continue reading at:  Bradley

Bad bid: Malicious actors target government contractors

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IT personnel working the trenches in the fight against malicious emails know that financial transactions — and the various documents that support and accompany those transactions — provide malicious actors seemingly endless fodder for clever phishing attacks designed to separate legitimate organizations from their money and reputations, as well as their customers, clients, and partners.

Indeed, fake invoices, RFQs, POs, ACH documents, and remittance forms collectively constitute the “social engineering” backbone of innumerable phishing campaigns.  And hapless employees keep falling for them, clicking through malicious links and opening malware-laden attachments — often with nary a thought to the potential consequences — bringing malicious actors and their sophisticated malware inside their employers’ networks.

Over the past few months we have observed the increasing use of yet another type of transaction-based social engineering scheme designed to hook companies dependent on government contracts: the invitation to bid.  In what follows, we’ll take a look at a number of actual phishing emails reported to us by customers using the Phish Alert Button (PAB).

Continue reading at:  SC Magazine

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