Contract Performance & Administration

At this point, even casual observers of the news likely have heard of Moscow-based Kaspersky Lab. In the wake of reported connections to the Kremlin and Russian intelligence entities, the cybersecurity company was famously banned as a source of supply to the United States Government by Section 1634 of the 2018 National Defense Authorization Act (“NDAA”). Effective October 1, 2018, the NDAA forbids every “department, agency, organization, or other element of the Federal Government” from using “any hardware, software, or services developed or provided, in whole or in part” by (i) Kaspersky and any corporate successors, (ii) any entities controlled by or under common control with Kaspersky and (iii) any entity in which Kaspersky has majority ownership.
Continue Reading The FAR Takes Aim at Russia’s Kaspersky Lab: What Every Contractor Must Know

Buried in a grab bag of seemingly innocuous course-correcting changes to the Bayh-Dole Act regulations (effective May 14 of this year) is the removal by regulators of the sixty-day window between the federal agency’s notice of a contractor/grantee’s failure to give timely notice of inventions in order to secure title and the federal agency’s ability to take title and strip contractors and grantees of what may be their most valuable assets – i.e., their intellectual property. Now the Government is no longer constrained by this time limitation, and it may grab title to inventions conceived or reduced to practice with Government funds at any time should the contractor/grantee fail to follow the rules.
Continue Reading Contractors and Grantees Beware! Safe Harbors Removed in Preserving Patent Ownership Rights Under Bayh-Dole

As most contractors know all too well, doing business with the Government can be quite frustrating. One of the most – if not the most – prominent sources of that frustration is that the Government often operates with a callous disregard for the laws and regulations that are supposed to dictate the course of play under the contracts to which it is a party. With its December 28, 2017 decision in Flour Federal Solutions, LLC, ASBCA No. 61431-983, the Armed Services Board of Contract Appeals (“ASBCA” or “Board”) cast a searing spotlight on the Government’s dilatory conduct in the context of repeatedly failing to respond to a contractor’s claim. The facts are troubling:
Continue Reading The ASBCA Thunders to the Government: Do Your Job!

As the potential for a Government shutdown gets closer to reality with each passing minute, United States Government contractors and subcontractors may soon find themselves in a confusing position as to what actions they should take in light of their existing contract obligations. In an effort to resolve that confusion, the Department of Defense has released guidance to be used by its elements and contracts in the event of a Government shutdown tonight. While directly applicable to Defense activities and constituent contracts, the guidance may assist other non-Defense contractors in addressing some of their questions or concerns.
Continue Reading Bracing for Impact: How Contractors Can Manage Their Risk During a Government Shutdown

If your company sells products or services to the U.S. Government, there’s a substantial likelihood that you’ve read or heard the acronym “NIST” in connection with various cybersecurity related obligations that the Government is imposing on contractors with a seemingly unceasing vengeance. NIST refers to the National Institute of Standards and Technology, which is a…

This article focuses on contractor licenses that grant “Restricted Rights” in “Noncommercial Software” to the federal Government under Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.227-7014.  DFARS 252.227-7014 only applies to “Noncommercial Computer Software,” meaning software that is licensed to or developed for the Government, but that is not also licensed to the public.  In contrast to the commercial world, where software licensors generally set the terms under which they wish to license their products, DFARS 252.227-7014 dictates such terms, and codifies required license grants for software developed for the U.S. Department of Defense (“DoD”).  Under DFARS 252.227-7014, even if a licensor develops Noncommercial Software at private expense, the licensor must at least grant Restricted Rights to the Government — although title and ownership of the software always remain with the contractor licensor.
Continue Reading Restricted Rights Under DFARS 252.227-7014: Practitioner Advice for Avoiding DoD Licensing Pitfalls

Contractor past performance evaluations are important factors in source selection decisions under Parts 8 and 15 of the Federal Acquisition Regulation (“FAR”), and they can easily make or break a contractor’s federal customer base. Especially vulnerable are contractors competing in Lowest Price Technically Acceptable (“LPTA”) procurements, where a bad past performance rating can make contractors ineligible due to an “unacceptable” technical rating even though they may offer the lowest price. The submission by Government contracting officials of a contractor’s performance evaluation to the Contractor Performance Assessment Reporting System (“CPARS”) is required in most instances; however, the contractor’s remedies for correcting poor performance evaluations due to mistakes and material omissions by the evaluator are limited in both time and scope. And as the DoD’s Inspector General (“IG”) has repeatedly pointed out, most recently in its May 9, 2017 report, Summary of Audits on Assessing Contractor Performance (noting a large percentage of DoD performance assessment reports are late and not prepared correctly and accurately), mistakes often happen. Contractors looking to sustain their business in the federal marketplace need to be properly armed with the weapons available to challenge poor performance evaluations when the agency gets it wrong.
Continue Reading Sparring with CPARS: Some Tips on Avoiding and Curing Bad Past Performance Evaluations That Can Haunt and Jeopardize a Government Contractor’s Business for Years

On April 18, 2017, at the headquarters of Snap-On Incorporated, a Wisconsin-based manufacturer, Donald J. Trump signed an Executive Order titled “Buy American, Hire American”. The Hire American portion, explained in all of two paragraphs in Section 5, requires the Attorney General and Secretaries of State, Labor, and Homeland Security to “consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system”. The second paragraph is a bit more specific inasmuch as it states that these folks ought to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Among those in attendance were likely Snap-On’s H-1B employees, since the company is a perennial petitioner for H-1B workers at its Kenosha, Wisconsin location.[1]
Continue Reading Buy and Hire American, to the Extent Possible – Federal Publications Seminars

It’s surprising how often the simplest phrases can provide the most salient advice. The 6 P’s,for example: Proper prior planning prevents poor performance. While the phrase may be a bit of a tortured alliteration, the truth and simplicity of its sentiment can’t be denied: When you want a good outcome, you have to think it through. Simple.
Continue Reading Your Biggest Cybersecurity Threat: Failing to Plan

One common complaint we hear from our subcontractor clients is “HOW CAN WE GET PAID????” Our experience has shown that whether through inadvertence, lack of subcontract management resources – or even as a predatory business strategy – some prime contractors will dance, dither and delay upon receipt of requests for payment by their subs for work performed, services rendered and/or products delivered. This can be particularly onerous for small business subcontractors whose payroll and other obligations depend upon prompt payment by their customers. Subs are put in an untenable position. Should they stop work and risk breach of contract? Should they threaten to sue and risk breaching the relationship? New changes to the FAR now impose mandatory reporting obligations on primes should they fail to make timely and full payments to their small business subs. Chronic and unjustified payments now must go into an agency’s evaluation of the prime’s past performance in bidding contests. Primes are well advised to make sure their supply chain management is in order to minimize the additional obligations and risks confronting them should they fail to meet their obligations to their small business subs.
Continue Reading New FAR Changes Incentivize Prime Contractors Not to Be Deadbeats in Meeting Their Payment Obligations to Their Small Business Subcontractors