Government Contracts M&A Issues

As part of the Trump Administration’s Revolutionary FAR Overhaul (“RFO”), the Federal Acquisition Regulation (“FAR”) Council has been releasing streamlined Parts of the FAR on a rolling basis.  We have been closely monitoring the RFO and its effects on the acquisition landscape, and publishing updates on the progress.  To date, 25 streamlined FAR Parts have been released on the RFO page of acquisition.gov, the most recent of which were released earlier today: Part 9 – Contractor Qualifications; Part 33 – Protests, Disputes, and Appeals; Part 46 – Quality Assurance; and Part 49 – Termination of Contracts.  Along with the streamlined Parts, revised definitions and contract clauses have been added to Parts 2 and 52, respectively.  And, a host of non-regulatory resources and commentary, from Practitioner Albums to Smart Accelerators is growing.

Notably, FAR Part 42 – Contract Administration and Audit Services, which includes Subpart 42.12 – Novation and Change-of-Name Agreements, has yet to be overhauled, and we wanted to take this opportunity to renew our call for reform of the existing novation process.Continue Reading Time To Overhaul FAR Part 42?  The Novation Process Can Use An Upgrade

Yesterday, the FAR Council issued a proposed rule that would update the U.S. Government’s approach to organizational conflicts of interest (OCIs).  While the proposed rule is not finalized and may change in response to forthcoming comments from interested parties, the proposed rule contemplates major changes to the FAR’s existing framework in this area.  In this post, we summarize the background leading up to the proposed rule and highlight key areas of proposed change.

Background

Continue Reading The Proposed FAR Rule on OCIs: Big Changes May Be Coming

The Small Business Administration (“SBA”) recently issued a proposed rule that would significantly change the rules concerning small business recertification in M&A transactions and other events (the “Proposed Rule”).  SBA has framed the Proposed Rule as a consolidation of what is currently a scattered set of regulations, but the rule goes further than consolidating and clarifying existing law.  It would expand recertification requirements in several key ways, including eliminating exemptions that currently allow contractors to continue to utilize set-aside multiple award vehicles after a so-called “disqualifying recertification” (i.e., a recertification as other than small or other than disadvantaged).

SBA invited public comment on the Proposed Rule.  The deadline for submitting comments passed last week.  We have spent some time reviewing the comments submitted thus far, which provide insight into the issues that affect both small business contractors and the industry writ large.  As discussed below, many of the comments describe the potential chilling effects of the Proposed Rule, which could deprive contractors of key income streams just as they graduate from small business status and discourage investors and other contractors from acquiring small businesses that hold multiple award contracts. 

The sections below describe the Proposed Rule in greater detail and provide an overview of the comments to the Proposed Rule.Continue Reading Public Comments to Proposed Rule Underscore the Need for Additional Clarity on SBA Recertification Requirements

Earlier this month, the FAR Council took action to extend its existing authority to collect information from government contractors for novation requests with a notice in the Federal Register.  While this was a routine action, it is a reminder that the novation process is in need of serious attention.  The…

Continue Reading It’s Time to Re-Imagine FAR Subpart 42.12:  Ways to Improve the Novation Process