Insights

Washington – June 24, 2024: Crowell & Moring has been recommended in eight practice areas in the 17th edition of the Legal 500 United States. In addition, partner Daniel Forman, co-chair of the firm’s Government Contracts Group, has been named to the Legal 500’s “Hall of Fame” for Government Contracts.

Washington – June 6, 2024: Crowell & Moring earned 78 rankings for 67 lawyers, as well as 41 national and statewide practice area rankings, in the Chambers USA 2024 guide. The rankings are driven by independent interviews of clients and lawyers at peer firms.

Washington – June 1, 2023: Crowell & Moring earned 82 rankings for 68 lawyers across 48 categories, as well as 37 national and statewide practice area rankings, in the Chambers USA 2023 guide. The rankings are driven by independent interviews of clients and lawyers at peer firms.

When to file a protest challenging an agency’s corrective action is an issue that has confused protesters for over a decade since GAO’s Domain Name Alliance Registry, B‑310803.2, Aug. 18, 2008, 2008 CPD ¶ 168 decision.  In Domain Name, GAO held where a protester essentially challenges the “ground rules” of corrective action, that protest must be filed pre-award or risk being dismissed as untimely.  This has led to the proliferation of overly cautious protesters bringing pre-award challenges to corrective actions only to have GAO dismiss such protests as merely anticipating improper agency action and therefore premature.  Indeed, the line between a timely and untimely corrective action protest is unclear.  And that confusion persists, as evidenced in two recent GAO dismissals—General Dynamics Information Technology, Inc., B-422421.6, B-422421.7, July 17, 2024, and Peraton Inc., B-422409.2, B‑422409.3, July 22, 2024.

On January 30, 2024, the FAR Council issued a proposed rule entitled “Pay Equity and Transparency in Federal Contracting” (“Proposed Rule”). The Proposed Rule would: (1) prohibit contractors and subcontractors from seeking and considering information about job applicants’ compensation history when making employment decisions about personnel working on or in connection with a government contract; and (2) require contractors and subcontractors to disclose, in all advertisements for job openings involving work on or in connection with a government contract placed by or on behalf of the contractor or subcontractor, the compensation to be offered to the hired applicant for any position to perform work on or in connection with the contract.

On March 5, 2024, a federal judge in Texas struck down a federally-sponsored racial preference extended to minority groups seeking to access capital and government contracts. Nuziard v. Minority Business Development Agency (“Nuziard”). Plaintiffs, who are non-minority business owners, challenged a preference provided by the Minority Business Development Agency (“MBDA”), a bureau of the Department of Commerce, to “socially or economically disadvantaged individual[s],” defined to include African Americans, Hasidic Jews, Hispanic Americans, Native Americans and Pacific Islanders. The court struck down the MBDA’s presumption that such racial minorities are socially disadvantaged, finding the preference violated the Equal Protection Clause.   Nuziard, like the recent decision by a federal court in Tennessee in Ultima Services Corp. v. U.S. Department of Agriculture (“Ultima”), follows the Supreme Court’s decision in Students for Fair Admissions, Inc. v. Pres & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”) and, like Ultima, advances the mission of activist organizations across the country seeking to invalidate race-based presumptions in federally funded and sponsored entitlement programs.  

On Tuesday, April 5, 2020 at 3 p.m. Eastern, Ken Dodds of Live Oak Bank, a leading SBA lender, will join Crowell & Moring attorneys and policy advisors in a webinar addressing the CARES Act’s Paycheck Protection Program (PPP).  Just over a week after the creation of this lifeline small business loan platform, the webinar will address updates to program eligibility, the current SBA Form 2483 borrower application, and loan calculations and forgiveness based on the SBA’s interim final rules and guidance that have been issued in the past week. 

When competing for business with the federal government today, small business status can be the “Golden Ticket” for threshold eligibility for a government contract or provide a competitive edge to securing a government contract as either a prime or subcontractor. However, when relationships are formed between a small business and another contractor (large or small), preserving that prized status is challenging, yet essential to maintaining that competitive advantage. Players of all sizes must understand when and how companies or individuals will be considered “affiliated” for size purposes in order to structure the proposed business relationship to maximize synergies, but avoid affiliation and loss of small business status. This is a true balancing act. Many of the rules and requirements are counter-intuitive, but a small business finding itself on the wrong side of the affiliation line could jeopardize its ability to compete for valuable business opportunities. 

The MCCA’s Creating Pathways to Diversity conference is designed to provide the practical tools and resources that attorneys, both in-house and at outside law firms, need to further their personal career growth and sustain organizational diversity and inclusion efforts.  Conference highlights include an opening plenary session featuring the General Counsels of Gap Inc., NBCUniversal, The Rockefeller Group and Showtime Networks and a luncheon plenary honoring the 60th anniversary of the Brown v. Board of Education decision and the 50th anniversary of landmark 1964 civil rights legislation and featuring, among other speakers, Charles Hamilton Houston III.

Please join us on Wednesday, September 7, 2022 for a webinar on the newly implemented Small Business Administration (“SBA”) requirements for requesting, reporting, and relying on small business subcontractor past performance. With past performance already playing a key role in evaluations and award decisions, these new requirements are certain to shake up procurement dynamics, increase prime contractor administrative obligations, and generate a wave of new bid protest challenges.

When an acquisition involves an entity that currently claims (or even previously claimed) small business size and/or status, there are additional factors that must be considered. We will address the impact that small business status can have on diligence; the types of representations, certifications, warranties, covenants, etc. that you might expect to see used; implications for a small business target if, post-acquisition, the entity will no longer be able to claim small business size and/or status; and common post-close activities required of a small business that, post-acquisition, can no longer claim small business size and/or status.

In this episode, hosts Rob Sneckenberg and Olivia Lynch are joined by colleague Amy O’Sullivan to discuss the Court of Federal Claims’ recent decision in HWI Gear, Inc., which held that the solicitation’s inclusion in full of the text of FAR 52.219-28 required a small business offeror to recertify its size status prior to award due to a post-proposal submission corporate change. Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement.