Class Deviation

A recently proposed rule would update the Federal Acquisition Regulation (“FAR”) to incorporate statutory changes to limitations on subcontracting that have been in effect since 2013. The U.S. Small Business Administration (“SBA”) has long since revised its own regulations to implement these changes, but some contracting officers have been reluctant to follow these changes in the SBA regulations because the FAR contains contradictory provisions.

The proposed rule is a sign of progress. In particular, it should add significant clarity to the current disconnect between the FAR and SBA regulations. However, the proposed rule is not perfect, and a number of recent developments highlight that outstanding questions remain.

Continue Reading Signs of Progress with the Limitations on Subcontracting, but Outstanding Questions Remain

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 agencies authorized to receive that information.”[1]  Most recently, the Department of Defense issued a new class deviation on November 14, 2016 prohibiting DoD from using funds from recent appropriations to contract with companies using overbroad confidentiality agreements.[2]  While these restrictions may not be new, the deviation’s broad application and significant consequences mean that contractors should give close scrutiny to ensure any agreements with employees comply with the prohibition.

Continue Reading Confidentiality Agreements Continue To Pose Potential Compliance Trap for Contractors

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 apparently is intended to assuage contractor concerns about the class deviation, it falls short of this goal, so contractors must remain vigilant if and when the Proposed Rule is finalized and GSA begins to attempt to implement it through contract modifications.  Comments on the Proposed Rule are due by August 1, 2016.

Continue Reading GSA Doubles Down on CSA/EULA Deviation