Kevin Barnett

Kevin Barnett

Kevin Barnett represents clients in all aspects of government contracts law. He has represented contractors in litigating claims against the United States before the Court of Federal Claims, the boards of contract appeals, and against a foreign government in an international arbitration. He has counseled clients on GSA schedule contract compliance, Buy American Act and Trade Agreement Act issues, and the attorney-client privilege. Mr. Barnett also routinely assists clients of all sizes in navigating the Freedom of Information Act (FOIA) process from drafting and negotiating requests through litigating in federal court.

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New Cases Confirm that FOIA Exemption 4 Protects Line-Item Pricing Information

Although the Freedom of Information Act (FOIA) allows citizens to request agency records and thus keep a close eye on their government, proprietary information is exempt from disclosure under Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” A substantial body of case law … Continue Reading

GSA Issues Final Rule Governing Negotiations of Common Commercial Terms

On February 22, 2018, the General Services Administration (GSA) issued a Final Rule to address common commercial supplier agreement terms that it contends are inconsistent with federal law. The purpose of this rule is to streamline negotiations over commercial supplier agreements (“CSAs”), end-user license agreements (“EULAs”), Terms of Sale (“TOSs”) or similar sets of standard … Continue Reading

Third Time Around: Inconsistencies Persist with Final DFARS Commercial Items Rule

On January 31, 2018, the Department of Defense (“DoD” or the “Department”) published a final rule regarding commercial item purchasing requirements.  Among other key amendments, the final rule modifies the Defense Federal Acquisition Regulation Supplement (“DFARS”) by:  (i) formalizing a presumption of commerciality for items that DoD previously treated as commercial; (ii) providing commercial item … Continue Reading

Government Contracts 101 Reminder: Certified Claims Must Include a “Signature”

Earlier this Fall, the Armed Service Board of Contract Appeals dismissed an appeal for lack of jurisdiction because the certified claim lacked a proper signature. Appeal of NileCo General Contracting LLC, ASBCA No. 60912 (Sept. 22, 2017). This simple oversight proved decisive. Although this case does not chart a new course in Contract Disputes Act … Continue Reading

The Latest Clue to Solving the Maropakis Riddle: The Affirmative Defense of Offset

When must a party’s “defense” be asserted as a Contract Disputes Act (CDA) claim in order to raise that defense during a Court of Federal Claims or Board of Contract Appeals proceeding? In Kansas City Power & Light Co. v. United States, the Court of Federal Claims moves us one step closer to solving this peculiar … Continue Reading

Ninth Circuit Rejects Heightened Standard for Demonstrating Likelihood of Competitive Harm Under FOIA Exemption 4

The Ninth Circuit recently confirmed that predicting the future with near certainty is not required when seeking to protect information from disclosure under Exemption 4 of FOIA. In a recent unpublished decision, the Ninth Circuit concluded that Sikorsky Aircraft’s small business subcontracting plan was “confidential commercial or financial information” exempt from disclosure under Freedom of … Continue Reading

Déjà Vu: Continuing Resolution Raises Potential Pitfalls for Contractors

As Yogi Berra famously quipped, “It’s like Déjà vu all over again!”  In that spirit, Congress has again signaled that it will pass a continuing resolution to fund the Government through spring—despite vocal opposition from the Pentagon.  As a result of this short term funding mechanism, contractors face a number of potential pitfalls:  contract options … Continue Reading

Confidentiality Agreements Continue To Pose Potential Compliance Trap for Contractors

Federal contractors who require employees to sign confidentiality agreements—including those selling only commercial products or in small quantities—need to examine their agreements closely. For the last two years, the government has sought to prohibit confidentiality agreements that restrict employees’ ability to report fraud, waste, or abuse to “designated investigative or law enforcement representative[s]” for federal … Continue Reading

GAO’s Task Order Protest Jurisdiction Expires Today

GAO’s jurisdiction over protests of civilian agency task and delivery orders valued at more than $10 million will sunset today. 41 U.S.C. § 410(f)(3).  GAO will continue to have jurisdiction over Department of Defense task and delivery orders over $10 million — Congress made that jurisdiction permanent in 2011.  10 U.S.C. § 2304c(e). Pending protests … Continue Reading

GSA Doubles Down on CSA/EULA Deviation

Recently, the General Services Administration (“GSA”) issued a proposed rule to codify a class deviation regarding GSA’s approach to common Commercial Supplier Agreement (“CSA”) and End User License Agreement (“EULA”) terms.  We have previously addressed the class deviation here and in an article for the Coalition for Government Procurement available here.  While the Proposed Rule … Continue Reading

DoD Retreats on Evaluation of Price Reasonableness

Last week, the Department of Defense (“DoD”) quietly withdrew its ill-received proposed rule on the evaluation of price reasonableness in commercial items acquisitions.  Issued on August 3, 2015, the Proposed Rule purported to provide guidance for evaluating the reasonableness of prices using data other than certified cost or pricing data.  As we previously reported, it … Continue Reading

VA Proposes to Make VOSB Verification Easier Under the Veterans First Contracting Program

On November 6, 2015, the Department of Veterans Affairs (“VA”) issued a proposed rule (the “Proposed Rule”) to clarify the byzantine verification process for veteran-owned small businesses (“VOSB”) and veteran-owned service-disabled veteran-owned small businesses (“SDVOSB”)1 who want to participate in the VA’s Veterans First Contracting Program.  VA Veteran-Owned Small Business Verification Guidelines, Proposed Rule, 80 … Continue Reading

OHA and COFC Agree: Mentor/Protégé JV Agreements Must Be Specific to Avoid Affiliation

Recent decisions by the Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) and the Court of Federal Claims offer important advice to anyone in the process of drafting and negotiating a mentor/protégé joint venture agreement:  Be specific.  Those agreements, in many cases, are the crown jewel of the mentor-protégé program enabling mentors and … Continue Reading

A Closer Look At DOD’s Proposed Price Reasonableness Rule

The Department of Defense published a long awaited proposed rule on August 3, 2015, amending the DFARS to provide guidance for evaluating the reasonableness of prices using data other than certified cost or pricing data.  The proposed rule falls short of its goal, instead increasing confusion in the determination of price reasonableness for commercial goods that … Continue Reading

Ninth Circuit Narrows Application of the False Claims Act’s Public Disclosure and First to File Bars

United States ex rel. Hartpence v. Kinetic Concepts, Inc., No. 12-55396 (9th Cir. July 2015) is one of many recent decisions limiting a contractor’s ability to dismiss False Claims Act (“FCA”) lawsuits at an early stage of the litigation.  In Hartpence, the Ninth Circuit resurrected two FCA cases in one sweeping decision by interpreting the … Continue Reading

Lost in Transmission: Email Failure Results in Untimely Size Protest

The Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) recently issued a decision exemplifying the well-known reality that protest deadlines are short and unforgiving. In Size Appeal of Supplies Now, Inc., SBA No. SIZ-5655 (Apr. 30, 2015), OHA denied, as untimely, an appeal of an SBA Area Office decision. The appellant, Supplies Now, … Continue Reading
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