Georgia Tech Procurement Assistance Center

Novation agreements under federal contracts

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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 include procedures for the novation of contracts in certain situations to avoid a potential violation of the Anti-Assignment Act.

Continue reading at:  Husch Blackwell

Navigating the FAR/DFARS: The most confusing and little known clauses

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The law firm Piliero Mazza has put together a helpful presentation on navigating the FAR/DFARS, that focuses on the most confusing the little-known clauses.  They write:

“We have fielded numerous calls from new clients asking the same question when it turns out they have violated a FAR provision: ‘Do they really expect me to read all of those regulations?  How is someone supposed to understand everything that is in there?’ Unfortunately, the answer is ‘yes’ the government does expect you to know all of the FAR and DFARS clauses that are relevant to your work and to follow them to the letter.  Not only that, but by virtue of the fact the FAR and DFARS are publicly available, all contractors are presumed to have knowledge of all the clauses and understand them.  This reality can be daunting for new companies or even large well-established businesses looking to enter the federal space.  During this session, we will look at some of the most confusing and poorly understood FAR and DFARS provisions to give you a leg up on your competition or be able to help your own companies or those you work with in navigating these areas of the law.”

You can watch the webinar at:  JD Supra

Contract language matters, even to Uncle Sam

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No one can escape the basic rules of contracting, even the federal government. If the contract is clear and unambiguous, then the four corners of the agreement set the rules for the project and the parties – and there’s not much room for interpretation.  The government was recently reminded of this cold, hard truth after it refused to grant a contractor an equitable adjustment of the contract price for purchasing wetland mitigation credits.

In Kiewit Infrastructure W. Co. v. United States, the government issued a solicitation for bids for the design and construction of roadways through the heart of the Tongass National Forest in Prince of Wales Island, Alaska.  Part of the solicitation included a Waste Disposal Sites Investigation Report, which specified where waste could be disposed of during construction.  In referring to the Report, the government’s solicitation clarified that “no further analysis of the environmental impacts of using government-designated waste sites would be needed unless an expansion of a site were proposed.”  The solicitation was clear, however, that the chosen contractor would maintain responsibility for all permits and clearances, including the need for any potential wetland mitigation credits and ensuring compliance with the Clean Water Act.

Continue reading at:  JD Supra

How government contractors can survive this difficult time

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In February 2020, economic indicators seemed stable with positive business and consumer sentiment.  But then the world was hit with a global pandemic that completely changed the way this country and the entire globe does business.

Contractors have had to deal with stop-work orders or even terminations of a project because the area where the work was being performed was too risky or expensive to operate in.  Additionally, when the pandemic first hit and strict travel restrictions were put in place, supplies and services became more scarce and expensive, which negatively impacted a contractor’s ability to maintain an existing schedule or stay within budget.

This continues to be an issue and many government contracts continue to be delayed because of concerns regarding health and safety.  These delays can directly result in cash flow challenges for companies that are looking to keep employees in place while they anxiously await new contracts to take effect.

Continue reading at:  The Federal News Network

Don’t forget about the GSA Schedule program

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With so much attention on a series of forthcoming GSA GWAC contracts, it might be easy for companies to forget about the old, reliable, GSA Schedule.  However, GSA’s Multiple Award Schedule program did record business last year.  Larry Allen is president of Allen Federal Business Partners.  He talked with Federal Drive with Tom Temin about why the schedule contracts might not be getting the attention they deserve right now.

If you need help or guidance on the GSA Schedule process, feel free to reach out to a GTPAC Procurement Counselor.

Listen to the Podcast at:  The Federal News Network

Five things to know about an 8(a) bona fide place of business

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Eligibility to bid for construction contracts in the 8(a) program can be a maze to navigate for small businesses.  The lifeblood for these companies is identifying and becoming eligible to bid for these prized solicitations.  As a new 8(a) entity, or one looking to branch out, you may be wondering how to establish a bona fide place of business.

In order to qualify for construction contracts in the 8(a) program, offerors are required to have a bona fide place of business (or BFPOB) within the established geographic area.  This post will walk you through when and how to request a determination from the SBA, and when to expect a decision.

Before we get to the five things, one important resource for the 8(a) Program to review when questions arise is the SBA standard operating procedure.  But, if you don’t have time to read all 300 pages and the corresponding regulations, we will walk you through the process.

Continue reading at:  SmallGovCon

Paycheck protection program audits are upon us

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In our last post on this topic, we touched on how the acceptance, use, and forgiveness of Paycheck Protection Program (“PPP”) loans can be viewed in the context of a Defense Contract Audit Agency (“DCAA”) audit.  This post focuses on audits and investigations involving PPP loans.  Close scrutiny of PPP loans is not a prediction; it is a reality.  The Small Business Administration (“SBA”) has announced it will audit all PPP loans in excess of two million dollars following a lender’s submission of a borrower’s loan forgiveness application, and it reserves the right to “spot check” any PPP loan of a lesser amount at its discretion.  The Department of Justice has already charged multiple individuals with PPP fraud.  And this is just the beginning of what many think will be a tidal wave of enforcement activity involving PPP loans.

Continue reading at:  Government Contracts Navigator

What federal contractors should know about small business subcontracting plans

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Every year, the U.S. federal government establishes goals for the awards of prime contracts and subcontracts to small business concerns.  While agencies are responsible for achieving these goals by awarding prime contracts to small businesses, contractors that are “other than small” are obliged to ensure that the small business subcontracting goals are met.  Contractors that compete for a contract worth $750,000 or more ($1.5 million for construction contracts) must submit a small business subcontracting plan that specifies how a contractor will attract small businesses and will ensure that such businesses have a maximum practicable opportunity to subcontract.  FAR 19.702.  In the plan, contractors must indicate separate dollar and percentage goals for small businesses, provide a list of services and supplies to be subcontracted, and describe methods for securing small business subcontracts.  FAR 19.704.

Continue reading at:  Morrison Foerster

CMMC: Some frequently asked questions

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The National Defense Industrial Association has held a series of webinars for its members focusing on the latest news coming out of the Defense Department on the Cybersecurity Maturity Model Certification.

NDIA Senior Vice President of Strategy and Policy Wes Hallman, Director of Regulatory Policy Nick Jones, and Principal Director of Strategy Corbin Evans led a webinar on Feb. 18 and answered some written questions posed by members afterward.

The next members-only webinar is scheduled for April 15.

The questions and answers from that previous session have been edited for clarity and length.

Continue reading at:  National Defense Magazine

The Infrastructure Plan and The Davis Bacon Act

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It’s coming.  From all outward signs, it appears that the Biden Administration may be planning to use the “American Jobs Plan” – otherwise known as the proposed infrastructure plan – to expand the Davis Bacon Act (“DBA”) and require the use of prevailing wages on all projects funded by any infrastructure bill ultimately passed by Congress.

The Davis Bacon Act (40 U.S.C. §§ 3141-3148), requires employers performing construction work under contract with the federal or District of Columbia government valued at more than $2,000 to pay their laborers and mechanics a prevailing wage and fringe benefits, at levels set on a regional or local level by the U.S. Department of Labor.  Noncompliance with the DBA can potentially lead to severe penalties, including suspension, debarment, and even False Claims Act civil and/or criminal liability.

Continue reading at:  Husch Blackwell

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