By John W. Chierichella
B&P is a precious resource, a pool of investment dollars. Used wisely, B&P can perpetuate one’s existing position in the market, grow existing product lines, and expand into new fields of endeavor. The prudent use of B&P can be the difference between achieving short, intermediate and/or long term business goals and failing to do so. All too often, however, companies can fall into patterns of conduct that effectively vitiate that investment.
By John W. Chierichella
In our claims practice, we frequently represent clients seeking compensation for constructive changes. One of the most common obstacles to recovery arises where the Government employee who ordered the additional or changed work lacked the authority to do so. Invariably, the Government’s first line of defense in these cases is the well-established principle that the Government is not bound by the unauthorized conduct of its agents. Although there are certain narrow exceptions to this general rule, the absence of actual express authority can make it significantly more difficult to recover for a constructive change.
On January 15, 2009, the FAR Councils issued the final rule implementing the provision of the Trafficking Victims Protection Reauthorization Act of 2005 ("TVPA") 22 U.S.C. § 7104(g). The final rule is implemented by FAR 52.222-50 entitled “Combatting Trafficking in Persons.”
By now, everyone who has even a passing familiarity with the new “Contractor Code of Business Ethics and Conduct” clause that went into effect on December 12, 2008 knows that “internal controls” are important. In fact, with the stakes under the new clause so high, many government contractor personnel can tell you that, under the clause FAR 52.203-13, they are required to:Continue Reading...
On April 23, 2008, the U.S. House of Representatives passed H.R. 3033, "Contractors and Federal Spending Accountability Act," agreeing by voice vote that GSA would maintain a centralized database of government contractors. The GSA database would collect information on contract defaults, suspensions, and debarments, as well as "any civil or criminal proceeding, or any administrative proceeding" for which a contractor paid at least $5,000 in restitution, that has been "concluded" by the federal or state governments. If a contractor committed in a three-year period more than one offense for which it could be debarred, the contracting officer must affirmatively demonstrate the contractor's responsibility prior to award.Continue Reading...
Do assure that the Government person with whom you are dealing has actual authority to bind the Government.
Do remember to “get it in writing.”
Do recognize that the Government wants your intellectual property -- address that issue before you sign a contract.
Do treat certifications in your contracts with a seriousness of purpose – unless you have a thing for orange jump suits and iron bars.
Do seek “commercial item” status whenever possible – it mitigates significant cost, accounting, and IP risks.
Don’t for a moment think that subcontractors are not “Government contractors” – just read the flow downs if you ever think otherwise.
Don’t treat your Multiple Award Schedule Contract as just another commercial contract -- the items may be “commercial” but the contract most assuredly is not.
Don’t have your “Compliance” and “Contract Administration” functions report through “Sales” – you will be “uncomfortable” explaining that hierarchy in an enforcement proceeding.
Don’t take the client to lunch.
Don’t ever underestimate the multi-layered power of the Government – or its willingness to use it against you.