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Government Contracts Blog

Welcome to the Holland & Knight Government Contracts Blog, featuring news, observations and analysis related to government contracting. We tackle not only the "hot" topics receiving widespread attention within the government contracting community, but at times lesser-known topics or unique perspectives that we hope will be of interest to our readers.

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The U.S. Small Business Administration (SBA) has published a proposed rule to amend its regulations to implement a statutory requirement to certify Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) participating in the SBA's Women-Owned Small Business Program, under which those businesses can be eligible for set-aside and sole source awards.
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May 16, 2019
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Over the past several months, this blog has analyzed several key provisions of the Fiscal Year 2019 National Defense Authorization Act (NDAA) that impact government contractors. This post briefly summarizes a variety of other government contracts-related provisions of the FY 2019 NDAA that we have not yet discussed, including several that reflect a congressional intent to enhance the use of multiple-award, indefinite-delivery/indefinite-quantity (IDIQ) contracts and encourage commercial item contracting, several that concern subcontracting and supply-chain considerations, and assorted other issues.
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May 15, 2019
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Whistleblowers now have more time in which to bring their qui tam suits following the much-anticipated U.S. Supreme Court decision in Cochise Consultancy, Inc. et al. v. United States ex rel. Hunt, No. 18-315, 587 U.S. __ (May 13, 2019).
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May 14, 2019
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The U.S. Department of Justice (DOJ) released guidelines for evaluating self-disclosures and awarding cooperation credit in False Claims Act (FCA) cases. As expected, these guidelines set forth several key factors anticipated in our previous blog post, Cooperation Credit in False Claims Act Cases. The guidelines, which are codified in DOJ's Justice Manual, 4-4.11, Guidelines for Taking Disclosures, Cooperation, and Remediation into Account in False Claims Act matters (2019), provide a comprehensive list of activities and factors that may qualify for cooperation credit and identifies the types of benefits DOJ is willing to offer in exchange. In short, an entity or individual seeking to earn maximum credit should generally undertake a timely self-disclosure that includes identifying all individuals substantially involved in or responsible for the misconduct, provide full cooperation with the government's investigation and take remedial steps designed to prevent and detect similar wrongdoing in the future.
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May 9, 2019
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Last week, the DOJ Criminal Division published a guidance document entitled "Evaluation of Corporate Compliance Programs" (ECCP). This document is meant to assist prosecutors in determining what credit should be given to a corporation for having an effective compliance program when prosecutors decide whether to bring charges, what charges to bring, what amount of penalties to seek, or whether to impose a monitorship or reporting obligations on a corporation. The document is equally useful to companies that want to assess their current compliance program and determine whether any changes need to be made.
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Companies facing liability under the False Claims Act (FCA) often desire early resolution with the Department of Justice (DOJ) through settlement. Hand in hand with the decision to settle comes the decision of whether or not to cooperate.
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April 25, 2019
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In Matter of 7Skyline, LLC, SBA No. BDPE-574 (2019), the U.S. Small Business Administration (SBA)'s Office of Hearings and Appeals (OHA) affirmed the SBA Area Office's denial of an 8(a) Business Development Program (the 8(a) Program) application based on gender. 7Skyline is a reminder of the difficulties of entering the 8(a) Program if the owner of the applicant is not a member of a presumptively-disadvantaged group and the importance of connecting any disadvantages to difficulties advancing in the business world.
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The United States Supreme Court heard oral arguments in the case mentioned in our prior blog post, Cochise Consultancy v. United States, ex rel. Hunt, 887 F. 3d 1081 (11th Cir. 2018). The main question before the Supreme Court was "whether a relator in a False Claims Act (FCA) qui tam action may ultimately rely on the statute of limitations provision in 31 U.S.C. § 3731(b), when the United States has declined to intervene in the lawsuit and, if so, whether the relator constitutes an 'official of the United States' for purposes of section 3731(b)(2)."
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March 27, 2019
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With the 2019 NDAA, Congress has put teeth behind recommendations stemming from an independent study on sustainment planning in the Defense acquisition process. Reflecting congressional concern with the sustainment and total life-cycle costs of major defense acquisition programs, Section 844 of the 2017 NDAA had required the Secretary of Defense, through an agreement with an independent entity, to conduct a review of the extent to which sustainment matters are considered in decisions related to the requirements, research and development, acquisition, cost estimating, and programming and budgeting processes for major defense acquisition programs.
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The U.S. Department of Defense (“DoD”), Office of the Inspector General (“OIG”) recently issued a report highlighting its work conducted in Fiscal Year (“FY”) 2018. The report provides statistics on the number of audits, evaluations, and investigations completed in FY 2018, summarizes the DoD’s top management challenges for FY 2019, and provides an outline of the OIG’s planned activities in FY 2019.
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The 2019 NDAA and a supply chain bill passed soon thereafter (the SECURE Technology Act) foretell significant changes to how government contractors will be required to monitor their supply chains. The provisions include requirements to voluntarily disclose vulnerabilities, prohibitions on utilizing certain Chinese companies for contractor deliverables, and the establishment of a new Federal Acquisition Security Council that will be able to recommend the exclusion of companies that pose an unreasonable supply chain risk.
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March 1, 2019
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The 2019 NDAA contains several provisions reforming commercial item contracting. As discussed below, these changes include: (1) revision of the definition of commercial items for purposes of federal acquisition statutes; (2) limitations on the applicability to U.S. Department of Defense (DoD) commercial contracts of certain provisions of law; (3) modifications to procurement through commercial e-commerce portals; and (4) review of federal acquisition regulations on commercial products, commercial services, and commercially available off-the-shelf items.
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February 27, 2019
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Protesters remained active and fairly successful in their challenges to agencies' procurement actions at the Government Accountability Office (GAO) in 2018, while protests at the Court of Federal Claims spiked.
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February 21, 2019
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The 2019 NDAA contains several provisions reforming the security clearance process that are aimed at reducing the substantial backlog in security clearance investigations.  
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February 19, 2019
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The 2019 NDAA contains important changes that impact many aspects of government contracts. In this post, we discuss Section 822, which has the potential to affect contractors pursuing bid protests for U.S. Department of Defense (DoD) procurements.
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February 15, 2019
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It's official – the longest federal government shutdown in history is over, at least for now. For contractors whose work and payments were affected by the shutdown, the questions now are: what can we get paid for and how do we get it? As with so many things, the short answer is: it depends. Because contracts were affected (or not) in a variety of ways, and because there are a number of different methods – formal and informal – by which work might have been interrupted contractors need to address these questions on a contract-by-contract basis.
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January 28, 2019
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The 2019 NDAA contains significant changes that will impact many facets of government contracting. In this post, we discuss the Sections of the 2019 NDAA that affect small businesses. As discussed below, these changes include: (1) the codification and reauthorization of defense research and development rapid innovation program; (2) the establishment a Department of Defense small business strategy; (3) the improvement of prompt payment of small business contractors; (4) the increased participation in the SBA microloan program; (5) the extension and amendment of the Small Business Innovation Research (SBIR)/ Small Business Technology Transfer (STTR) programs; (6) the funding for procurement technical assistance program; (7) the creation of a commercialization assistance pilot program; and (8) the increasing of opportunities for employee-owned business concerns through SBA loan programs.
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As the government shutdown potentially moves into a second month, many government contractors who are not receiving payment from the Federal Government may soon encounter the issue of what to do with employees they can no longer afford to pay, but are here on nonimmigrant visas, such as the H-1B visa for highly skilled workers. This issue can be quite complicated, and while it is best to seek legal advice from an attorney on each individual case, some broad themes are important to understand.
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January 17, 2019
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In December 2018, the U.S. Department of Justice (DOJ) statistics for its civil False Claims Act (FCA) and fraud cases from the fiscal year ending Sept. 30, 2018 (Fiscal Year 2018). The DOJ reports it recovered $2.8 billion in settlements and judgments for Fiscal Year 2018.
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The U.S. government's partial shutdown impacts government contractors across the spectrum. What many contractors may not realize is that the shutdown has an additional impact on small businesses because the U.S. Small Business Administration (SBA) is among the many agencies that have been closed. This means that both the small business loan and government contracting functions of the SBA are affected by this shutdown.
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