Incomplete Novation = No Direct Economic Interest

Parties with an unapproved novation agreement aren’t eligible to protest agency award decisions. The GAO found that under the bid protest provisions of the Competition in Contracting Act of 1984 only an “interested party” may protest a federal procurement. The protester must be an actual or prospective offeror to have a direct economic interest in the award of a contract. In the Matter of: Wyle Laboratories, Inc., File:  B-416528, dated September 7, 2018 the GAO held Wyle did not

Successful GAO Price Realism Protest Requires the Right Solicitation

Small businesses are frustrated when underbid by competitors for federal task orders.  These businesses may challenge awards based on price realism.  They may even have evidence the contract cannot be performed at the offered price.  While the evidence may be compelling and change the outcome of an award decision, it will not be considered – unless the solicitation specifically requires an evaluation of the price realism. In the Matter of Earth Resources Technology This evaluation principle was reiterated on

What You Need to Know about Legally Identical Trademarks

In re Trilliant Food and Nutrition, LLC, 2017 WL 3102593   The Trademark Trial and Appeal Board (TTAB) decided this case. The TTAB is an administrative board that deals with issues arising out of the United States Patent and Trademark Office (USPTO). The TTAB oversees opposition, cancellation, interference, and concurrent use hearings. The TTAB also hears appeals for trademark application rejections from USPTO Trademark Examining Attorneys. Legally Identical Trademarks Background Trilliant Food and Nutrition, LLC (Trilliant) submitted an application for trademark registration

Your Small Business Exit Strategy: Think Bigger

Many small business owners dream of the day they can sell their business and retire to a life of opulent leisure.  Well, perhaps not opulent.  Comfortable.  That dream usually involves a cash sale of their business (perhaps at an unrealistic price), preferably as early as possible.  Age 65, for many, is an abstraction.  We may be hurtling quickly toward it, but most retirement dreamers don’t want to wait that long. How sophisticated is the average small business retirement dream? 

Forest fires and Task orders exceeding the scope of the original IDIQ

When Task Orders Exceed Your Contract This bid protest, filed by Western Pilot Service (WPS) and three other contractors, protested the BLM’s issuance of a task order, which in the view of the protester exceeded the scope of the original IDIQ, and was therefore illegal. The back story to this protest is that the BLM originally issued to solicitations; one for on-call aircraft services for forest fire suppression and another solicitation for 100 day exclusive use aircraft services for the same

Digital Media: YouTube, Demonitization and the “Adpocalypse”

In the past ten years, social media platforms are the biggest growth story in the world. Controversy usually follows success.  Ask any big business or celebrity.  Social media platforms like YouTube have both.  Twenty years ago scandals played out in supermarket tabloids; now they play out online.  Grainy images and suspiciously unbelievable headlines about Princess Diana and Madonna in the Enquirer have given way to streaming HD video documenting the idiocy of Jake and Logan Paul and the off-color

Decision Two: Sovereign Acts, Agency Deference and Contract Disputes

A second key government contract case decided in 2017 involved court agency deference to an agency’s interpretation of its own regulations. The case decided a subcontractor’s Request for an Equitable Adjustment (REA) springing from what the subcontractor argued was a change in government regulation and policy. The case, Garco Construction Inc. v. Secretary of the Army (ASBCA 57796,15-1 BCA ¶ 36,135, motion for recon. denied, 16-1 BCA ¶ 36,278, aff’d, Garco Constr., Inc. v. Sec’y of the Army, 856 F.3d 938 (2017), petition

Seven Mistakes You’re Likely to Make When Selling Your Business

You haven’t thought enough about how you’re getting paid. Business owners almost always have an idea what their business is worth, and it’s usually based on some formula they’ve either heard about or developed on their own over the years.  What owners often fail to consider is how dramatically that price can differ based on the means of payment.  An all cash at closing sale should bring a different price than, for instance, an installment sale over a term of years, or payment

Six Important 2017 Government Contracting Decisions

The next six newsletters will contain articles regarding important government contracting decisions from 2017. The articles will include a review of the following: Technology Systems, Inc., ASBCA No. 59577, 17-1 BCA ¶ 36,631 (the DCAA disallowed expenses following an audit); Garco Construction, Inc. v. Secretary of the Army, 856 F. 3d 938 (Fed Cir 2017) (involving access to a military facility where the contract was to be performed); United States ex rel. Harman v. Trinity Industries, Inc., 872 F.3d 645 (5th

New Workplace Safety Exam Rule

The Long and Winding Road to the New Workplace Safety Exam Rule for M/NM You would have to be living under a rock to not have heard about the changes instituted to the workplace exam rule 30 C.F.R. § 56.18002/57.18002. The new rule states: Examination of working places. (a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate