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Brown Rudnick BLOGS

Welcome to Brown Rudnick’s blog page.  Below you will find our Emerging Technologies and Government Contracts blogs.  To read our Real Estate blog, Get Real! Keeping Real Estate Professionals Ahead, please visit www.getrealestatelawblog.com.

The views expressed herein are solely the views of the author(s) and do not represent the views of parties represented by the blogger(s) or the views of Brown Rudnick LLP or parties it represents.

Mobile App Privacy: Five Things Businesses Can Do To Stay Out Of Trouble

Posted on Friday, Dec 21, 2012

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The business case for offering a mobile app can be compelling: an app can give a business a constant presence on its customers’ mobile desktop, building brand awareness and allowing easy and direct interaction.  But businesses that roll out apps need to pay attention to privacy rules, too, as the recent enforcement action by California’s Attorney General reminds us.

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A New Wave Of GPL Enforcement? Samba and Linux kernel copyrightholders join the fight

Posted on Friday, Jun 29, 2012

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Talk about unintended consequences: Rob Landley, a lead developer of BusyBox, announced that he was rewriting that program solely to disarm GPL enforcers. In response, several other copyright holders came forward to hand the enforcers some bigger and more effective weapons.

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Will 8(a) Small Businesses Lose Out In SBA’s Planned Expansion of the Mentor-Protégé Program?

Posted on Monday, Jun 27, 2016

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There is a lot to celebrate in the pending Small Business Administration (“SBA”) rule that will open up the mentor-protégé program to all small businesses, in contrast to the current rules which apply only to 8(a) business concerns. One particularly praiseworthy feature of the rule is that it will likely streamline administration of mentor-protégé programs across the Government by creating a single, universal program for all contracting agencies (with the notable exception of the Department of Defense. That all is a good thing. Expanding opportunities for small businesses to compete for work they would not otherwise have had the capability to perform and allowing those businesses to develop under the tutelage of larger, established businesses also are good things.

However, it is equally important to consider those who stand to lose the most from the changes: current 8(a) disadvantaged small businesses. In a nutshell, the exclusive benefit of having a large business mentor—which previously gave 8(a) businesses a leg up on their non-8(a) competitors—is about to become a lot less exclusive. While it may be cynical to view the Government’s support of small businesses as a zero-sum game, it may work out that way for current 8(a) businesses. More non-8(a) small businesses able to compete based on their mentor’s capabilities will mean less small business for current 8(a) businesses. And, while 8(a) businesses will still be able to benefit from work set aside for 8(a) concerns, that will not offset the reduction they will experience from having to compete more fiercely for generic small business work.

That is not an indictment of SBA’s new rule. But it is a reminder of the balancing act between the objective of the 8(a) program (which is to give socioeconomically disadvantaged businesses an advantage over their competitors to help them become more viable businesses) and the Government’s also-compelling interest in cultivating small businesses and expanding competition generally. In authorizing these rule changes as part of the 2013 National Defense Authorization Act, Congress gave SBA the authority to make that judgment call. Instead of lauding that choice as a pure “win” or a pure “loss” for the small business community, however, we need to remember that changes to Government preference programs are necessarily a trade-off in which not everyone can come out a winner.

To view the SBA’s proposed mentor-protégé rule, please click here.

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Kingdomware – A win for SDVOSB and VOSB Concerns – and GAO

Posted on Thursday, Jun 23, 2016

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It is rare for the Supremes to weigh in on Government contracts issues. But on June 16, 2016, the Court did just that. The holding: the Department of Veteran Affairs (“VA”) must use the Rule of Two every time it awards a contract. It does not matter whether the agency already has satisfied its annual minimum contracting goals for veteran-owned small businesses (“VOSB” or “SDVOSB”). It does not matter whether it is placing orders under the GSA Federal Supply Schedule (“FSS”). See Kingdomware Technologies, Inc. v. United States, No. 14-916, 579 U.S. __ (2016). That means that for most procurements, the VA is required to determine whether there is a reasonable expectation that two or more veteran-owned small businesses will bid at a fair and reasonable price. Where there is a reasonable expectation of that, the VA is required to set aside the requirement for VOSBs or SDVOSBs.

While not at issue in Kingdomware, there are two statutory exceptions to this requirement for: 1) certain small contracts under the simplified acquisition threshold; and 2) certain sole source contracts above that level – that still will be awarded to a VOSB and/or SDVOSB.  See 38 U.S.C. § 8127(b) and (c).

The decision in Kingdomware is based, in part, on a basic rule of statutory construction: “Unlike the word ‘may,’ which implies discretion, the word ‘shall’ [when used in a statute] usually connotes a requirement.” Id. at *6; see also 38 USC § 8127(d) (statute at issue in Kingdomware).

The VA tried to get around the “shall award” language of § 8127(d) by citing to language elsewhere in the statute that said “In order to increase contracting opportunities” for VOSBs/SDVOSBs, the VA is required to establish contracting goals.  See, e.g., 38 USC § 8127(a).  The COFC and Federal Circuit sided with the VA.  The Supreme Court, however, rejected this argument finding that “Congress used the word ‘shall’ in §8127(d) as a command.”  Kingdomware, 2016 WL 3317563, *7   According to the Supreme Court, the language relied on by the VA was part of a “prefatory clause” that had “no bearing on whether § 8127(d)’s requirement is mandatory or discretionary.” Id.  GAO reached a similar conclusion in its Aldevra decision in 2012.  See, e.g., Aldevra, B-406205, March 14, 2012, 2012 CPD ¶ 112  (finding that language in §8127(d) was mandatory and that “The phrase [in §8127(a)] explains the purpose of the mandate, which is to meet the goals established under subsection (a), however, the phrase does not create an exception to the mandate”).

The Supreme Court also rejected the VA’s attempt to distinguish FSS “orders” from “contracts” as the term was used in the statute.

The clear winners of the Supreme Court’s Kingdomware decision ultimately are the SDVOSBs and VOSBs that should enjoy more contracting opportunities as a result of the ruling.  That said, it is not every day that the differences between opinions of GAO and COFC are decided by the Supreme Court.

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