Here’s another reminder of limitations that exist when there is a third party claim of infringement against a U.S. Government agency. In such a case, the patent owner must sue in the United States Court of Federal Claims and may recover only “reasonable and entire compensation” for the unauthorized use. See 28 U.S.C. Section 1498(a). No injunctive relief is afforded the plaintiff.  Within the context of that proceeding, the Government agency is free to seek a determination that the patent is invalid, and if the claimed invention does not meet one or more of the patentability requirements, the Government agency will have no liability.

Continue Reading The Supreme Court Limits Government Agencies’ Ability to Deflect Infringement Claims Through the PTO: A Preamble for Government Contractors

On May 22nd, Practice Group Co-Leaders Franklin Turner and Alexander Major delivered a presentation on Effectively Prosecuting Contract Claims Against the Government to attendees at the annual Native Hawaiian Organizations Association Business Summit in Honolulu, Hawaii. After the presentation, Franklin and Alex also hosted a legal Q&A session for contractors of all sizes.

Section 8(a) of the Small Business Investment Act of 1958 authorizes the Small Business Administration (“SBA”) to enter into prime contracts with federal agencies and to subcontract the performance of the contract to qualified small businesses. As most are aware, the 8(a) program is designed to assist “socially and economically disadvantaged small business” concerns that are owned by one or more individuals who are from a socially and economically disadvantaged group and whose management and daily operations are controlled by such individuals. 15 U.S.C. § 637(a)(4)(A)-(B). Included in the definition of “socially and economically disadvantaged groups” are, among others, Indian tribes, Native Hawaiians, and Alaskan Natives, which allows each “maximum practical opportunities” to participate in the government contracting market. But in so doing, those companies must stomach the good with the bad, i.e., they must be prepared to (a) navigate the thicket of regulatory hurdles required to do business with the government and (b) combat potential allegations of fraud if there is a perception that one or more of those hurdles has not been cleared successfully.

Continue Reading Alutiiq False Claims Act Settlement Highlights Significant Government Contract Compliance Risks for Tribal, NHO, and ANC 8(a) Subsidiaries

Effective Date of Increase and Customs Reporting Guidance

On May 9, 2019, the Office of the U.S. Trade Representative (USTR) announced an increase in duties pursuant to Section 301(b) of the Trade Act of 1974, as amended (Section 301), from 10% to 25%, on over 5,700 Harmonized Tariff Schedule of the United States (HTSUS) products imported from China. The increase, covering $200 billion in products that were subject to 10% additional duties since September 24, 2018, was set to rise to 25% at the beginning of this year, only having to be postponed twice to allow U.S.–China trade negotiations to bear fruit. They did not.

Continue Reading International Trade Update: U.S. Heightens Tariffs on Chinese Goods; China Reciprocates

A little-heralded change to the statutory definition of “commercial item” has now made its way to a proposed FAR rule, which will open up regulatory relief to a whole new class of government contractors – companies, both domestic and foreign, that regularly sell products developed at private expense to friendly foreign governments. With the December 12, 2017, passage of Section 847 of the National Defense Authorization Act of 2018, Pub. L. 115-91 (“2018 NDAA”), the statutory set of definitions for the term “commercial items” was amended. See 41 U.S.C. § 103. More specifically, Section 103(8), addressing “nondevelopmental items,” was broadened as follows:

Continue Reading New Proposed FAR Rule Makes Way for Broadening Commercial Item Status to Products Developed Exclusively for and Sold to Friendly Foreign Governments

On Dec. 4, 2018, the Federal Acquisition Regulatory Council finally released a proposed rule to implement changes to certain small business subcontracting regulations required by the 2013 National Defense Authorization Act (NDAA). 83 Fed. Reg. 62540 (Dec. 4, 2018). This is a welcome, if not long-overdue sign of progress. Over the last half-decade since the passage of the 2013 NDAA, contractors and Government personnel alike have struggled to comply with an amalgam of inconsistent rules regarding the extent to which a small business may subcontract work under a federal small business set-aside contract.

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E-Verify, the online system used by enrolled employers to verify the identity and employment eligibility of newly hired employees against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS), is temporarily suspended. It’s a barely noticed consequence of the government shutdown, unless, of course, you happen to be one of the more than 800,000 employers enrolled in the program and are in a position to hire new employees.

Continue Reading Government Shutdown Irony: Battle Over Immigration Impacts E-Verify Employment Eligibility Checks

By now, we have all read the horror stories of federal employees who are either furloughed or forced to work without pay during this historic shutdown. Less well-known, however, is the impact this shutdown has had on small business contractors who rely on federal government contracts for much – if not all ‒ of their revenue. Whereas large government contractors may have ample cash reserves for a situation like this, small businesses are likely less fortunate. In fact, many small businesses hire highly skilled, in-demand personnel specifically in support of their government contracts. Unfortunately, with much of the government shuttered and its coffers empty, these highly skilled personnel, and the companies for which they work, find themselves emptyhanded and operating in the red. Absent a stream of revenue, small businesses cannot pay the employees they specifically hired for the contracts that are now unfunded. While many small business contractors have been able to weather the first few weeks of this shutdown by either diverting these employees to other projects or using vacation or sick leave, many thousands of contractors are now facing grim choices as the shutdown enters its fourth week. Simply stated, these companies are in real danger not only of losing those employees hired to support existing contracts, but of losing the opportunity to leverage those employees to compete for future contracts. To make matters worse, unlike federal employees who will likely receive back pay, most if not all contractors will not be reimbursed for the revenue lost during this time of political chicken.

Continue Reading Small Business, Big Problems: Navigating the Government Shutdown as a Small Business Contractor

Week three of the U.S. Government shutdown has begun, and agencies responsible for administering export controls, sanctions, and other trade-related functions have been affected by the lapse in federal appropriations.  This means that companies need to be prepared for extended licensing and processing wait times, along with increased wait times for any communications with the agencies, including advisory opinions. Accordingly, companies must operate — and continue to operate — in accordance with law and regulation. The shutdown requires increased vigilance on the part of those regulated by or working with the government (see here for advice for federal contractors). With that in mind, see below for the key international trade-related agencies impacted by the shutdown and suggestions on how industry should properly respond.

Continue Reading 2019 Government Shutdown: The Export Controls, International Trade, and CFIUS Edition

Here we are again. Large swaths of the federal government have been closed since December 22 because Congress and the president cannot agree on legislation to fund the government. Nearly a million federal employees are not receiving their paychecks. Even larger numbers of government contractors are – as is often the case – left squarely at the bottom of the hill, dodging the boulders of political mismanagement that are raining down in a landslide of “stop-work” orders. For example, as has been reported, the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) took affirmative steps to publicize and issue a “blanket” stop-work order on December 26 – the day after Christmas – giving many affected contractors a post-holiday cocktail of uncertainty and dread. Other agencies have followed suit, with the Departments of Justice, Agriculture, Commerce, Housing and Urban Development, Interior, State, Transportation, and Treasury issuing such orders over the past few weeks.

Continue Reading Contractors in the Crosshairs – Weathering the 2019 Government Shutdown