Five Things I’ve Learned as a Government Contracts Lawyer

As many readers know, I am retiring from private legal practice to focus on teaching, writing, and other interests. The wonderful team of government contracts professionals here at Koprince McCall Pottroff will continue assisting contractors with their legal needs. I couldn’t be prouder of our wonderful team of attorneys and staff!

For my last SmallGovCon blog post, in the tradition of our “Five Things You Should Know” series, here are five big-picture things I’ve learned in my years as a government contracts attorney. Oh, and whether this is the first post of mine you’ve read or the 1,200th (yes, I’ve written that many here on SmallGovCon), thank you!

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The SBA Proposes New Rules to Help Small Businesses in Obtaining Past Performance

The SBA proposes to amend its regulations to implement new provisions of the National Defense Authorization Act (NDAA) for fiscal year 2021 that provides small business contractors with new tools to establish past performance when bidding on prime contracts for Government procurements. The proposed rules would add two new methods for small businesses to obtain qualifying past performance. One proposed rule would allow a small business with no relevant past performance of its own to use the past performance of a joint venture in which it took part. The second proposed rule would require prime contractors to provide, to small businesses that served as a first-tier subcontractor, a record of the business’s past performance for use by the small business in future proposals.

The proposed rules are here.

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Data Rights and the Government Contractor: Limited Data Rights

In our last post on intellectual property and government contracts, we went over a basic discussion about data rights and then addressed the matter of unlimited data rights for the government. As discussed, unlimited data rights basically give the government free rein to do as they wish with the data. More importantly, the FAR provides that such unlimited data rights are the government’s default rights. But there is a way to limit the government’s rights: limited data rights.

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Indian Affairs Proposes Rules to Remove Barriers in Buy Indian Act Contracting Opportunities

The Department of the Interior (DOI) proposes to revise regulations implementing the Buy Indian Act, which provides the Department with authority to set aside procurement contracts for Indian-owned and controlled businesses. The proposed rule is to revise current procurement regulations that have created barriers to Indian Economic Enterprises (IEEs) from full participation in the DOI’s procurement process. The proposed rule is here.

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COVID-19 Federal Workforce Vaccination Deadline Extended to January 4, 2022

This morning, the White House released updated Covid-19 vaccination guidelines. This update includes a nearly month-long delay in the mandate implementation. Previously, all federal workers and contractors must have either been fully vaccinated or granted some form of extension or accommodation by December 8, 2022. Fully vaccinated means two weeks following the final dose, meaning the actual deadline was early November for employees to begin the two-shot cycle of Pfizer or Moderna.

The new deadline also comes with updated recommendations from OSHA.

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Data Rights and the Government Contractor: An Introduction and Unlimited Data Rights

Ask any attorney, and there’s a good chance they’d agree with this statement: Intellectual property is a particularly complex area of law. Dealing with property rights in things that don’t physically exist, unsurprisingly, can result in a lot of confusion. Couple this with the labyrinthine regulations and rules concerning government contracts and procurements, and even the most experienced contractor can be left confused with a pounding headache.

To help clear up these murky waters, this post will be the first in a series of posts reviewing some of the basics of intellectual property rules in government contracts. We will start by going over data rights, as perhaps no subject in this field is more difficult than dealing with data rights. While I think we’re getting to the point in history where we can stop referring to computers and the internet as a novel technology (The internet as we know it is over thirty years old!), the law around data rights is still relatively new and rough around the edges. In this post, we will review the general concept and the rules regarding “unlimited rights” in data.

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Picking Your Teams: Joint Ventures Versus Prime/Subcontractor Teams (Part One, Workshare)

Federal contractors often ask: “It is better to team up for government work with a prime-sub arrangement or with a joint venture?” Well, (spoiler alert) the answer is: it depends. But I won’t leave you with just that. This three-part series will provide insight on some of the major differences between these two types of “teams” that offerors should consider when making the decision between a joint venture or prime/subcontractor team in competing for and performing federal contracts. While this series will not provide a comprehensive list of all the differences between these two types of teams, it will cover some of the big ones that seem to come up more frequently in this decision-making process. The focus of this first article will be work share.

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