With every new administration, there is both great uncertainty and opportunity in federal government contracting. To help you navigate the rough seas of doing business with the federal government in this new administration, we have assembled nationally recognized practitioners who will cover topics relevant to government contractors large and small, novice and seasoned. Session topics include:
– Ten Things Every Contractor Needs to Know When Doing Business with the Federal Government
James F. Nagle | Oles Morrison Rinker & Baker LLP | Seattle, WA
 
– Writing a Winning Technical Proposal – From the Contracting Officer’s Perspective
Mona Carlson, Mary Jo Juarez | PTAC Kitsap Economic Dvlpmnt. Alliance – Navy Contracting Officer (retired) | Kitsap, WA
 
– Keys to Winning Bid Protests and Defending Contract Awards
Adam K. Lasky | Oles Morrison Rinker & Baker LLP | Seattle, WA
 
– Navigating the Complex Rules Governing Data Rights
Jonathan M. Baker | Crowell & Moring LLP | Washington D.C.
 
– Overlooked Risks of Being a Lower-Tier Government Contractor
Alan C. Rither | Pacific Northwest National Laboratory | Richland, WA
 
– Mistakes to Avoid in the Claims and Litigation Process
Donald G. Featherstun | Seyfarth Shaw LLP | San Francisco, CA
 
– Adapting to Buy American and Domestic Preference Rules in the Trump Administration
Howard W. Roth | Oles Morrison Rinker & Baker LLP | Seattle, WA
 
– Understanding & Managing the Risk of Suspension & Debarment
Dominique L. Casimir | Arnold & Porter Kaye Scholler LLP | Washington D.C.

Thursday, November 16th 

SEATING IS VERY LIMITED AND WILL GO QUICKLY!
You may also attend via WEBINAR

Register for seminar or webinar at www.washingtonptac.org/seminar

Click HERE to see the event flyer.

 SEATTLE AGC BUILDING
Second-floor conference room
1200 Westlake Avenue North – Seattle WA 98109
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Earlier this year, the U.S. Senate and House of Representatives passed different versions of the National Defense Authorization Act for Fiscal Year 2018 (“FY 2018 NDAA”).  The Senate version contained dramatic bid protest reforms that, with the exception of the reforms to debriefing, were largely unpopular in the government contracting community.  The House version did not contain these reforms.  After meeting in conference over the past month to iron out the differences between the two bills, on Nov. 8, 2017, the House and Senate Armed Services Committees announced an agreement had been reached.  Contractors can breathe a sigh of relief, as most (if not all) of the protest reforms that the contracting community viewed negatively were left out of the bill agreed to in conference. Continue Reading House and Senate Strike Deal on Bid Protest Reforms in FY 2018 NDAA

Most government contractors are well-aware that the road to preserving and pursuing a claim against the government is one where opportunities for contractors to waive or otherwise lose their right to assert valid claims abound. In a decision where form has once again prevailed over substance, the Armed Services Board of Contract Appeals (“the Board”) recently determined in Appeal of NileCo General Contacting LLC that a typewritten signature block in a company director’s email was not a sufficient signature to certify the contractor’s claim under the Contract Disputes Act (“CDA”).

In December 2011 the U.S. Army Corps of Engineers (”USACE”) awarded NileCo General Contracting LLC (“NileCo”) a contract to construct a dining facility and other structures at Manas International Airport in Kyrgyzstan. Two years later, the government suspended work, and directed NileCo to demobilize and quit the site. By July 2016, the government was still withholding payments. NileCo sent the contracting officer a $2,079,137.25 claim. The emailed claim included certification language required by the CDA, but the sender—the contractor’s director, Anwar Ahmed—included only his typewritten name and not an “electronic or digital signature.”

The government’s contracting officer acknowledged receiving NileCo’s email, advised that he needed additional time to prepare his final decision, and stated that the final decision would “be issued by November 20, 2016.” Soon thereafter, the government terminated NileCo’s contract for convenience. Having received no final decision by Nov. 20, 2016, NileCo filed its notice of appeal with the Board. The government sought to dismiss NileCo’s appeal because it contended that NileCo’s email did not constitute a valid claim under the CDA as it did not provide the required certification. Continue Reading Form Matters: Contractor Loses $2M Claim Because Emailed Certification Was Not “Electronically or Digitally” Signed

Last week, the U.S. Court of Federal Claims (COFC) published an opinion in Sonoran Tech. and Professional Services, LLC, v. United States, dismissing all of Sonoran’s bid protest claims as untimely.  There are a number of timeliness issues discussed in the Sonoran opinion.  One of the holdings from Sonoran that contractors (especially awardees with contracts under protest) need to be particularly aware of is that, according to the COFC, a protester is charged with knowledge it would have gained if it had intervened in an earlier bid protest concerning the same procurement.  Awardees (and any other interested parties) need to take this holding into consideration when deciding whether to intervene.  While before there may have been reasons why an awardee (or other interested party) might not intervene in a bid protest, the Sonoran opinion makes the decision on whether to intervene an obvious one. Continue Reading The U.S. Court of Federal Claims Just Changed the Calculus for Deciding Whether to Intervene in a Bid Protest

Howard Roth authored an article on Buy America and Buy American for the Seattle Daily Journal of Commerce.

Below, learn about the differences between the two acts and why they matter to contractors.

In this first year of Donald Trump’s administration, American sourcing requirements are receiving heightened focus that impacts business by providing opportunities and threats.

For instance, President Trump’s “Buy American HireAmerican” executive order restates the policy of the government to buy American. Federal agencies are required to make an assessment of what the executive order calls the “Buy American Laws” aimed at maximum use of United States materials. The executive order is now on the road to changing the landscape of preferences for American products by the end of the year. Continue Reading Buy America and Buy American: What’s the difference and why it matters

Escobar was initially feared as authorizing another avenue for plaintiffs bringing False Claims Act (FCA) claims. Some federal district courts, however, have used the two-step test of Escobar as a stringent requirement for an implied certification theory for proceeding against a contractor. Other courts, however, have charted a different pathfinding that the two-test step is not a requirement, but rather one means of establishing an implied certification theory based claim.  This is an important development for companies to understand in the face of FCA litigation.

The U.S. Supreme Court held in Escobar that a claim under the implied certification theory, which we wrote about previously, required that: (1) the claim make specific representations about the goods or services and (2) the failure to disclose those representations make the claim misleading. The issue arising in recent cases is whether Escobar created an exclusive two-step test that applies to any false certification theory.

Some recent cases illustrate diverging views on the application of the two-part test:

Continue Reading Escobar: Two-Stepping Away from False Claims Act Liability?

A recent case makes clear the importance of focusing on the fundamentals, such as knowing the rules on who the government is required to pay on a government contract.  In The Hanover Insurance v. United States, the U.S. Court of Federal Claims recently found that a surety’s letter to the Government adequately notified it of the contractor’s default of bond agreement, triggering the surety’s equitable subrogation right to payments issued by the Government.

In that case, the surety, Hanover Insurance Company (Hanover), overcame a summary judgment motion filed by the Government, concerning a Veterans Administration (VA) contract awarded to B&J Multi-Service Corporation (“B&J”) for facilities maintenance at a VA facility in West Haven, Connecticut.  The Government paid termination for convenience (“T/C”) costs to B&J to which Hanover as surety claimed it was entitled.

The Government asserted that Hanover, as surety to B&J, had not given proper notice of B&J’s default, thereby precluding any Government obligation to pay Hanover directly.  The Government argued proper notice was not given because Hanover did not invoke the precise words “the principal is in default” prior to the VA’s payment to B&J.  As evident from the court’s opinion, the Government was aware that Hanover was making payments to B&J’s subcontractors.  Hanover put the Government on notice that the funds for termination for convenience should not be paid directly to B&J, because Hanover was asserting a subrogation right to the T/C funds.  However, the Government ignored the surety and paid the termination for convenience funds directly to B&J. Continue Reading Termination for Convenience: Government Pays the Wrong Party, No Magic Words Needed to Trigger Surety’s Right of Equitable Subrogation

Under the National Defense Authorization Acts (NDAAs), Congress provides legislation on various aspects of how the Department of Defense (DOD) defines and purchases commercial items. In July, Government Accountability Office (GAO) released a study on detailing (1) trends in the DOD’s acquisition of commercial items; and (2) recent NDAA changes from fiscal years 2013-2017 related to procurement of commercial items and actions taken by DOD in response to this legislation.

The Federal Acquisition Streamlining Act of 1994, of course, established a preference within the federal government to procure commercial items rather than items developed exclusively for the government.  “Commercial items” are generally defined as products and services readily available in the commercial marketplace. Purchasing commercial items enables the DOD to participate in the commercial marketplace (when appropriate) and to take advantage of market innovations and reduce its acquisition costs. Despite this preference, the GAO study shows the DOD has been slow to embrace the preference to buy commercial items – but why?  Continue Reading GAO Reports Decrease in Department of Defense Commercial Item Acquisitions

Oles Morrison attorney Howard W. Roth commented to the L.A. Times on proposed “Buy American” provisions in NAFTA. Howard explained that while proponents for “Buy American” cite a Government Accountability Office review stating that the U.S. has available twice as much government procurement to foreign companies, a lot of other countries just do not have the same military budget and needs as the U.S. “Denmark sells us a lot of goods and services,” he said, “but there’s not a whole lot we can sell to Denmark. Its defense budget is next to nothing.”

To read the full article, click here.

On July 25, 2017, the U.S. Department of Labor (DOL), Wage and Hour Division, issued a memorandum increasing the health and welfare fringe benefits rate for contracts covered by the McNamara-O’Hara Service Contract Act (SCA).

The SCA requires contractors and subcontractors performing work on federally funded prime contracts in excess of $2,500 to pay service employees no less than the wage rates and fringe benefits required by the locality in which the contract is being performed or the rates and benefits included in a contractor’s collective bargaining agreement.  Each year the DOL adjusts its health and welfare fringe benefits rates, referred to as “wage determinations.”  This year, the DOL issued two adjustments – one for SCA covered contracts, and another for SCA covered contracts that are also covered by Executive Order 13706.

As to the former category, the DOL increased the benefits level from $4.27 per hour to $4.41 per hour.  Hawaii’s rates – set differently pursuant to § 2(a)(2) of the SCA because it already provides certain benefits under its individual state law health care law, the Hawaii Prepaid Health Care Act (HPHCA) – increased from $1.78 to $1.91 per hour.

For those contracts covered by Executive Order 13706, the health and welfare rates will be slightly lower.  Nearly two years ago, President Obama signed Executive Order 13706, requiring contractors that enter into certain federally funded contracts provide covered employees with up to 56 hours (seven days) of paid sick leave in addition to paid leave for family care.  The DOL issued a Final Rule in accordance with the Executive Order on Sept. 30, 2016.  To help offset the costs of complying with EO 13706, the DOL set the health and welfare fringe benefits rates to $4.13 per hour, and $1.63 per hour for contractors required to comply with the HPHCA.

The new rates go into effect for service contracts awarded after Aug. 1, 2017.