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Government Contracting Roundtable Discussion

May 19, 2017
12:30–1:30 p.m.
Lunch served at 12 p.m.

Please join Deloitte Advisory and Dentons at our quarterly government contracting roundtable. These discussions will foster a free exchange of ideas, insights and wisdom about government contracting hot topics, including:

• Regional trends
• Regulatory changes
• Significant developments in litigation and enforcement
• Defense Contract Audit Agency (DCAA) audit trends (Rocky Mountains region)

We are hoping that this will be a forum for area contractors to exchange ideas on pain points and gather intel on trends to proactively prepare and respond to potential DCAA audits or inquires.

Deloitte & Touche LLP
555 17th Street Suite 3600
Breckenridge Conference Room
Denver, CO
Please RSVP by May 10  

Government Contracting Roundtable Discussion

Trump’s ‘Buy American, Hire American’ executive order advances his domestic preference agenda, but its impact may not be felt for months

Delivering on one of his signature campaign promises, President Trump signed an executive order (EO), dubbed “Buy American, Hire American,” on April 18, 2017, that focuses on the H-1B visa program and the procurement of American products by federal agencies.

On the “Buy American” front, the EO requires every agency to conduct, within 150 days of the date of the EO, a comprehensive assessment of the monitoring of, enforcement of, and compliance with the Buy American requirements within their respective agencies. The EO acknowledges the existence of several Buy America(n) preference frameworks, which it consolidates for purposes of the new policy position.

The EO further directs the agencies to assess their use of Buy American waivers, to minimize their use of such waivers and, prior to granting a public interest waiver, to assess whether the cost advantage associated with purchasing “a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manufactured goods,” and to document their findings in any waiver determination. The EO also requires agencies to adopt policies and procedures to maximize the use of US goods, products, and materials in federal procurements.

The EO further directs the Secretary of Commerce and the United States Trade Representative to assess the impact that all US free trade agreements and the World Trade Organization Agreement on Government Procurement have on Buy American requirements within 150 days of the date of the EO and to submit a report to the President detailing their findings within 220 days of the EO date.

The “Hire American” element of the EO requires the Secretary of State, the Attorney General, the Secretary of Labor and the Secretary of Homeland Security to propose new rules and to issue new guidance aimed at protecting the interests of US workers from fraud and abuse. In addition, the EO directs the Secretary of State, the Attorney General, the Secretary of Labor and the Secretary of Homeland Security to suggest reforms to the H-1B program so that visas under the program are granted to “the most-skilled or highest-paid petition beneficiaries.”

As discussed here, government contractors should continue to monitor the administration’s activities with respect to domestic preference requirements, as changes appear to be on the horizon. Government contractors should also remain in strict compliance with domestic preference laws, regulations and contract terms, as the Trump administration appears set on vigorously enforcing existing domestic preference requirements. Finally, while the Buy American directives in the EO seem focused on construction and transportation projects and while it remains to be seen what comes of the report to be submitted to the President, it seems likely that there will be at least some changes to existing domestic preference obligations. And while any changes are not immediately forthcoming, contractors should evaluate their current supply chains so as to be prepared to make necessary adjustments should new domestic preference requirements be implemented.

Trump’s ‘Buy American, Hire American’ executive order advances his domestic preference agenda, but its impact may not be felt for months

Protecting Your IP as a Government Contractor

chip

Date: September 21, 2016
Time:
12:00 PM – 01:30 PM PDT
Venue:
Dentons’ San Diego office
4655 Executive Drive
Suite 700
San Diego, CA 92121
United States

Please join us for a complimentary networking lunch and presentation on intellectual property (IP) and the federal contracting process. The 90-minute lunch program will provide practical information on how companies that provide products or services to the government, as well as their investors, can best manage IP rights, from the bidding stage to project closeout and with regard to the full-range of contracts and other funding vehicles.

The program will be led by skilled Government Contracts lawyers from our offices across the nation. CLE credit is pending.

Overview of IP issues for emerging technologies: patents, copyrights, trademarks

  • Background on the IP rules in government contracts that impact emerging technologies
  • The government’s expectations regarding allocation of IP rights (patents, copyrights and trademarks) developed under government contracts
  • How to address IP in contracts, Small Business Innovative Research (SBIR) agreements, grants, cooperative agreements and “other transactions”

To register or for questions on the event, please email Sofia Abraham Mendoza at sofia.Mendoza@dentons.com.

Protecting Your IP as a Government Contractor

Dentons’ Silicon Valley Institute on Government and Technology: Protecting Your IP Program Series

Silicon Valley Institute on Government and Technology

Date: September 22, 2016
Time:
12:00 PM – 01:30 PM PDT
Venue:
Dentons’ Palo Alto office
1530 Page Mill Road
Suite 200
Palo Alto, CA 94304
United States

Protecting your intellectual property: A series of monthly programs presented by our Government Contracts team

Please join us for the first installment of a new series of programs on intellectual property (IP) and the federal contracting process. These 90-minute complimentary lunch programs will provide practical information on how companies that provide products or services to the government, as well as their investors, can best manage IP rights, from the bidding stage to project closeout, and with regard to the full range of contracts and other funding vehicles.

Our kickoff program, in September, will provide a high-level overview of the issues every company needs to consider. Our second program, in October, will focus on the protection of commercial software and data rights.

Additional programs to take us through year-end (dates TBD) will include a session on noncommercial software development issues and one on effective alternatives for handling disputed rights in software and technology under federal contracts.

All programs will be led by skilled Government Contracts lawyers from our offices across the nation and will be held in an informal setting: the new Accelerator Space in Dentons’ Silicon Valley office. CLE credit is pending.

Program 1: Overview of IP issues for emerging technologies: patents, copyrights and trademarks

The program will cover the following topics:

  • Background on the IP rules in government contracts that impact emerging technologies
  • The government’s expectations regarding allocation of IP rights (patents, copyrights and trademarks) developed under government contracts
  • How to address IP in contracts, Small Business Innovative Research (SBIR) agreements, grants, cooperative agreements and “other transactions”

Program 2: Rights in commercial data and commercial software

Scheduled for October 20, 2016; more information to follow

  • How tech companies should navigate government rights in commercial data and commercial software
  • Practical suggestions for maximizing protection of data and software rights under various forms of government agreements

To attend, please register here. For questions about the program series, please contact Sofia Abraham Mendoza at sofia.mendoza@dentons.com.

Dentons’ Silicon Valley Institute on Government and Technology: Protecting Your IP Program Series

Speaking up about DOD’s proposed Independent Research and Development costs rule

A February 8, 2016, Department of Defense (DOD) advance notice of proposed rulemaking sought input to help address agency concerns regarding substantial future Independent Research and Development (IR&D) when such effort is undertaken as a means of reducing evaluated bid prices in competitive source selections. The proposed rule, if made final, would require the government to add costs (for proposal evaluation purposes) to any contractor offers that rely on IR&D efforts. In a recent client alert, Dentons encouraged contractors to participate in the comment process on the proposed rulemaking.

Dentons partners Thomas A. Lemmer and Steven M. Masiello submitted comments on the proposed rule. Specifically, they describe the relevant decisional authority establishing the appropriate methodology for distinguishing between direct costs of contract effort versus indirect costs of IR&D effort. Based upon this relevant authority, DOD’s concerns underlying the proposed rulemaking initiative to attribute IR&D project costs to the proposed price for evaluation purposes are misplaced.

Indeed, contrary to DOD’s concerns, relevant decisional authority confirms that IR&D efforts properly permit contractors willing to undertake, at their own risk, IR&D projects, to gain a relative price and technical advantage. Moreover, DOD should not discourage innovation by penalizing contractors for conducting IR&D projects resulting in innovation relevant to a competitive government procurement. Finally, IR&D costs are not contract costs, and treating them as such for evaluation purposes during the competitive procurement process misconstrues their nature and may skew award decisions.

You can read Dentons’ comments in full here.

Additionally, Dentons lawyers advised the American Bar Association Section of Public Contract Law on its comments on the proposed rule, which can be found here.

Speaking up about DOD’s proposed Independent Research and Development costs rule

DCAA Clarifies Position on Documentation Requirements for Consultant Costs

The Defense Contract Audit Agency recently issued guidance clarifying the agency’s view on the types of evidence necessary to substantiate consultant costs.  The guidance explains DCAA’s position that Federal Acquisition Regulation 31.205-33, which addresses the allowability of consultant costs, does not require the existence of specific types of documents in order for consultant costs to be allowable.  Instead, the guidance explains that the FAR only requires evidence of the nature and scope of the consultant effort and that such evidence can be supplied in a variety of ways, including through non-contemporaneous documentation.  This guidance will assist contractors in resisting the common auditor position that FAR 31.205-33 requires contractors to provide specific types of documents, such as invoices, contracts, and work product, as a precondition of consultant cost allowability.

DCAA Clarifies Position on Documentation Requirements for Consultant Costs