By: Anne Perry
While the number of protests has steadily increased over the past five years, the success rate for protesters in Fiscal Year 2011 was at its lowest during that time. GAO reported to Congress its Bid Protest Statistics for Fiscal Year 2011 on November 15, 2011 and it reflects a bit of a tougher year for protesters but no real significant changes from last year.
By: Anne Perry
By: Townsend Bourne
In a bid protest decision regarding the propriety of agency corrective action, GAO recently carved out a new exception to its general rule that those who do not participate in a protest that engenders corrective action are not interested parties to challenge the corrective action. In North Wind, Inc.; Earth Resources Technology, Inc., B-404880.4 et al., 2011 CPD ¶ 246 (Comp. Gen. Nov. 4, 2011), North Wind, Inc. (“North Wind”) protested NASA’s initial award of a contract to Navarro Research and Engineering, Inc. (“Navarro”) and subsequently raised additional challenges to the award in a supplemental protest that followed receipt of documents from the Agency. In response to North Wind’s supplemental protest, NASA decided to take corrective action. Earth Resources Technology, Inc. (“ERT”), another disappointed offeror in the competition, did not initially file its own protest challenging the award to Navarro.
CAS 402 has long provided that B&P costs incurred pursuant to a specific requirement of an existing contract may be distinguished from B&P generally and treated as direct costs of the requiring contract. As CAS 402-61 states:
The circumstances are different because the costs of preparing proposals specifically required by the provisions of an existing contract relate only to that contract while other proposal costs relate to all work of the contractor.Continue Reading...
By: Scott Maberry and Reid Whitten
On November 21, 2011, President Barack Obama signed Executive Order 13590 expanding sanctions against non-U.S. companies doing business in Iran. Under the new rules, whole sectors of business between Iran and third countries are now subject to U.S. sanctions. Overnight, non-U.S. companies working in Iran—in sectors not previously subject to sanctions—found their contracts subject to punishment under U.S. law. Many of these companies had invested significant resources in making sure their transactions in Iran did not fall afoul of U.S. sanctions, some having met directly with U.S. Government agencies, including the U.S. State Department, to understand the rules. These companies must now again adjust the aim of their compliance efforts to hit moving targets.
Fortunately for these companies, it appears likely that in the near-term, contracts already in place and compliant with the rules at the time of the November 21 order will not be the target of enforcement actions.
By: Thad McBride and Mark L. Jensen
Introduction: On October 24, 2011, a three-judge panel of the U.S. Court of Appeals for the Second Circuit released an opinion in United States v. Banki, No. 10-3381 (2d Cir. Oct. 24, 2011) that reversed convictions of Defendant Mahmoud Reza Banki on charges of conspiring to violate the Iranian Transaction Regulations (“ITR”) and aiding and abetting violations of the ITR. In doing so, the Court contradicted the position of the U.S. Government in a manner that may have important consequences for how the Government pursues sanctions enforcement matters going forward.
By: Marko W. Kipa
The United States Court of Federal Claims recently reaffirmed the applicability of two exceptions to the Anti-Assignment Act (the “Act”). Liberty Ammunition, Inc. v. United States, 2011 WL 5150221 (Fed. Cl. Oct. 31, 2011). Specifically, the Court acknowledged that (1) the Government may prospectively waive the Act, and (2) the Act does not prohibit the transfer of an agreement where the transfer occurs by operation of law. Id. at *6-8. Notably, the Court’s decision provides further guidance for contractors undertaking corporate reorganizations and/or examining whether a particular acquisition transaction requires the execution of a novation agreement. We previously discussed the novation requirements here.
By: John W. Chierichella
In our February 2009 posting, we commented on the final rule implementing, via FAR 52.222-50 (“Combating Trafficking in Persons”), the Trafficking Victims Protection Reauthorization Act of 2005.
On January 1, 2012, companies doing business in California will have state-level disclosure obligations to deal with in this realm as well. That is the effective date of the California Transparency in Supply Chains Act of 2010, which imposes obligations on every large retailer and manufacturer doing business in California to disclose whether it has taken specified actions to eliminate slavery and human trafficking from its product supply chain.
By: Anne Perry
We often cover social media aspects pertinent to government contracting here on the blog. Recently, however, Michelle Sherman of Sheppard Mullin’s Los Angeles office posted an article that may be relevant to contractors on the Social Media Law Update blog. In her posting, Michelle discusses how companies may be able to use the widespread and immediate dissemination of corporate news online to defeat the “original source” prong of a whistleblower action. For a comprehensive analysis of the issue, please click here.
If you have any questions, Michelle can be reached at firstname.lastname@example.org or (213) 617-5405.
Sheppard Mullin will be launching in 2012 a series of luncheon seminars to be held at its offices in Washington, D.C. and Los Angeles, California, on topics of ongoing (and increasing) importance to Government contractors. These seminars will provide the opportunity for attendees to receive an informed 90-minute presentation on relevant legal issues, and the opportunity for interactive dialogue with our lawyers and MCLE credit, all in the informal setting of a lunch in Sheppard Mullin’s offices.Continue Reading...