Wishing All A Happy Holiday
April 18, 2019
Due to Passover, Easter and School Vacation Holidays, the Government Contracts Monitor will not be published this week. It will resume publication next Thursday, April 25, 2019.
©Jackson Kelly PLLC 2019
Exemption 4: Protection of Confidential Information - The Ground May be Shifting
April 10, 2019
The Supreme Court recently granted a petition for writ of certiorari over (that is, agreed to review) an Eight Circuit decision involving Exemption 4 of the Freedom of Information Act (“FOIA”). What is Exemption 4? It is the exemption that protects from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Why is this…
China's Continuing Threat
April 3, 2019
Pentagon leaders have been speaking out, increasingly, regarding the risks to U.S. military operations created if and when Chinese technology is used in any military related 5G wireless telecommunications networks. Specifically, officials (former and current) are warning that using Chinese firms (for example, Huawei) to outfit military networks creates a high risk ... indeed a probability ... of…
ASBCA Determines Contract Obtained Through Material Misrepresentation Void <em>Ab Initio</em>, Negating Both Contractor and Government Claims Under the Voided Contract
March 27, 2019
In a no-longer so infrequent scenario, the Armed Services Board of Contract Appeals (ASBCA or Board) recently held a contract void ab initio where the contract was obtained through material misrepresentation. Specifically, the erstwhile contractor had told the Government that the contractor intended to use its own personnel on-site in Israel, without which representation the Government would not…
Will DoD Change How It Procures "Readily Available" Commercial Items?
March 21, 2019
The Section 809 Panel has recommended some drastic changes that would impact government contractors doing business with the Department of Defense (DoD). What is the Section 809 Panel? It is a panel created in Section 809 of the FY 2016 National Defense Authorization Act (NDAA) with goals outlined in the NDAA such as: (i) reviewing DoD’s acquisition regulations with a view toward improving the…
GAO Sustains Limiting the Number of Projects Allocable to a Large Business Mentor's Experience, but Rejects Treating a Mentor-Protégé Joint Venture Differently than a Prime/Subcontractor Contractor Teaming Agreement
March 17, 2019
One of the principal advantages of an approved Mentor/Protégé Agreement (MPA) is that the Mentor and Protégé can enter into a joint venture (JV) that can compete as small for any contract for which the Protégé would be eligible (see, e.g., 13 C.F.R. § 125.109(d)(1)). In turn, one of the principal advantages of a JV - now enshrined in statute and regulation - is that in evaluating experience and…
Hopewell Darneille to Present at DYNET 2019, Fairmont, WV -- April 11, 2019
March 17, 2019
Hopewell Darneille, of the Firm’s Washington, DC office, will be a presenter at the 10th annual Dynamic Networking for Small Business (DYNET) Conference, a federal and prime contracting event in Fairmont, West Virginia, on April 11, 2019 at the Robert H. Mollohan Research Center.
Mr. Darneille will co-present a Workshop on “Negotiating and Drafting a Compliant and Workable Joint Venture Agreement…
Government Contracts Monitor
March 17, 2019
GAO Sustains Limiting the Number of Projects Allocable to a Mentor’s Experience, but Rejects Treating a Mentor-Protégé Joint Venture Differently than a Prime/Subcontractor Contractor Teaming Agreement.
One of the principal advantages of an approved Mentor/Protégé Agreement (MPA) is that the Mentor and Protégé can enter into a joint venture (JV) that can compete as small for any contract for…
Agency Waiver of Solicitation Requirement - Fatal or Non-Prejudicial?
March 6, 2019
A recent protest demonstrates why it is not sufficient for a disappointed offeror to challenge an agency’s award as improper solely because the agency relaxed or waived a material solicitation requirement in evaluating the awardee’s proposal and thus the awardee’s proposal was deficient. Such a challenge, in order to succeed, must include another key element: demonstrated prejudice to the …
Following SBA's Joint Venture Agreement Template Not a Free Pass, and Don't Ignore the Footnote Comments
February 28, 2019
The Small Business Administration (SBA)’s Office of Hearings & Appeals (OHA) recently reiterated that SBA Joint Venture Agreements (JVAs), including those entered into under SBA’s new All-Small Mentor-Protégé Program (ASMPP), must include adequate specific detail as to the respective responsibilities of the parties with regard to, inter alia, performance of the proposed contract, and how the…
A Preference for U.S. Goods and Services: Buy American Receives A Booster Shot
February 24, 2019
On January 31, 2019 President Trump signed yet another Executive Order addressing Buy American issues: Buy American, Hire American [here]. This Order requires that federal agencies purchase U.S. goods and services in any and all infrastructure projects including, interestingly, cybersecurity projects. Among other things, this recent Order underscores the Trump Administration’s policy of enforcing…
Rare DOL Nondisplacement Decision Holds that Incumbent's Certified Employee List Is Not Determinative, and Awardee Must Consider Agency's "Credible Evidence" as to Incumbent Employee's Qualifications and First Refusal Offer Entitlement
February 14, 2019
Every awardee under qualifying federal government service contracts faces difficult issues and choices under Executive Order 13495, “Nondisplacement of Qualified Workers under Service Contracts,” and the implementing Department of Labor (DOL) Regulations at 29 C.F.R. Part 9, which require awardees to offer incumbent employees “a right of first refusal for employment under the contract in…
Blog 
Wishing All A Happy Holiday
April 18, 2019
Due to Passover, Easter and School Vacation Holidays, the Government Contracts Monitor will not be published this week. It will resume publication next Thursday, April 25, 2019.
©Jackson Kelly PLLC 2019
Exemption 4: Protection of Confidential Information - The Ground May be Shifting
April 10, 2019
The Supreme Court recently granted a petition for writ of certiorari over (that is, agreed to review) an Eight Circuit decision involving Exemption 4 of the Freedom of Information Act (“FOIA”). What is Exemption 4? It is the exemption that protects from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Why is this…
China's Continuing Threat
April 3, 2019
Pentagon leaders have been speaking out, increasingly, regarding the risks to U.S. military operations created if and when Chinese technology is used in any military related 5G wireless telecommunications networks. Specifically, officials (former and current) are warning that using Chinese firms (for example, Huawei) to outfit military networks creates a high risk ... indeed a probability ... of…
ASBCA Determines Contract Obtained Through Material Misrepresentation Void <em>Ab Initio</em>, Negating Both Contractor and Government Claims Under the Voided Contract
March 27, 2019
In a no-longer so infrequent scenario, the Armed Services Board of Contract Appeals (ASBCA or Board) recently held a contract void ab initio where the contract was obtained through material misrepresentation. Specifically, the erstwhile contractor had told the Government that the contractor intended to use its own personnel on-site in Israel, without which representation the Government would not…
Will DoD Change How It Procures "Readily Available" Commercial Items?
March 21, 2019
The Section 809 Panel has recommended some drastic changes that would impact government contractors doing business with the Department of Defense (DoD). What is the Section 809 Panel? It is a panel created in Section 809 of the FY 2016 National Defense Authorization Act (NDAA) with goals outlined in the NDAA such as: (i) reviewing DoD’s acquisition regulations with a view toward improving the…
GAO Sustains Limiting the Number of Projects Allocable to a Large Business Mentor's Experience, but Rejects Treating a Mentor-Protégé Joint Venture Differently than a Prime/Subcontractor Contractor Teaming Agreement
March 17, 2019
One of the principal advantages of an approved Mentor/Protégé Agreement (MPA) is that the Mentor and Protégé can enter into a joint venture (JV) that can compete as small for any contract for which the Protégé would be eligible (see, e.g., 13 C.F.R. § 125.109(d)(1)). In turn, one of the principal advantages of a JV - now enshrined in statute and regulation - is that in evaluating experience and…
Hopewell Darneille to Present at DYNET 2019, Fairmont, WV -- April 11, 2019
March 17, 2019
Hopewell Darneille, of the Firm’s Washington, DC office, will be a presenter at the 10th annual Dynamic Networking for Small Business (DYNET) Conference, a federal and prime contracting event in Fairmont, West Virginia, on April 11, 2019 at the Robert H. Mollohan Research Center.
Mr. Darneille will co-present a Workshop on “Negotiating and Drafting a Compliant and Workable Joint Venture Agreement…
Government Contracts Monitor
March 17, 2019
GAO Sustains Limiting the Number of Projects Allocable to a Mentor’s Experience, but Rejects Treating a Mentor-Protégé Joint Venture Differently than a Prime/Subcontractor Contractor Teaming Agreement.
One of the principal advantages of an approved Mentor/Protégé Agreement (MPA) is that the Mentor and Protégé can enter into a joint venture (JV) that can compete as small for any contract for…
Agency Waiver of Solicitation Requirement - Fatal or Non-Prejudicial?
March 6, 2019
A recent protest demonstrates why it is not sufficient for a disappointed offeror to challenge an agency’s award as improper solely because the agency relaxed or waived a material solicitation requirement in evaluating the awardee’s proposal and thus the awardee’s proposal was deficient. Such a challenge, in order to succeed, must include another key element: demonstrated prejudice to the …
Following SBA's Joint Venture Agreement Template Not a Free Pass, and Don't Ignore the Footnote Comments
February 28, 2019
The Small Business Administration (SBA)’s Office of Hearings & Appeals (OHA) recently reiterated that SBA Joint Venture Agreements (JVAs), including those entered into under SBA’s new All-Small Mentor-Protégé Program (ASMPP), must include adequate specific detail as to the respective responsibilities of the parties with regard to, inter alia, performance of the proposed contract, and how the…
A Preference for U.S. Goods and Services: Buy American Receives A Booster Shot
February 24, 2019
On January 31, 2019 President Trump signed yet another Executive Order addressing Buy American issues: Buy American, Hire American [here]. This Order requires that federal agencies purchase U.S. goods and services in any and all infrastructure projects including, interestingly, cybersecurity projects. Among other things, this recent Order underscores the Trump Administration’s policy of enforcing…
Rare DOL Nondisplacement Decision Holds that Incumbent's Certified Employee List Is Not Determinative, and Awardee Must Consider Agency's "Credible Evidence" as to Incumbent Employee's Qualifications and First Refusal Offer Entitlement
February 14, 2019
Every awardee under qualifying federal government service contracts faces difficult issues and choices under Executive Order 13495, “Nondisplacement of Qualified Workers under Service Contracts,” and the implementing Department of Labor (DOL) Regulations at 29 C.F.R. Part 9, which require awardees to offer incumbent employees “a right of first refusal for employment under the contract in…
