Non-compete agreements are increasingly coming under fire as the administration and employment lawyers seek to minimize their use and nullify their intent.  A recent GAO protest decision, perhaps unintentionally, adds fuel to this fire.  Both companies and workers need to take note of the shifting dynamics.  A recent article by Wilmer Hale appearing in JD Supra discussed the GAO’s decision in Strativia, LLC.   Here, GAO denied a protest that asserted the awardee materially misrepresented who would be available to work on the contract because the employees identified had signed non-compete agreements.  While GAO would not decide on the validity of non-compete agreements, they did offer a sort of litmus test to determine whether the fact that employees from the incumbent company were covered by non-compete agreements truly restricted their ability to go to work for a successor firm.  For the narrow purpose of deciding a bid protest, GAO looked to whether the covered employee had allowed their resume to be used by a competitor.  If so, GAO looked upon that as an indication that the employee intended to go to work for the competing company if they won the next recompete.  GAO also sited a circumstance where an employee not only allowed his resume to be used but accepted a contingent offer of employment.  As GAO explained, the enforceability of the non-compete agreement constituted a private dispute between the project manager whose resume had been used by a potential competitor and Strativia, not a material misrepresentation by the awardee.  While the GAO ruling doesn’t directly impact non-compete agreements, it does potentially reduce their efficacy.  Employers can’t use the existence of such an agreement as proof positive that a key employee will be available.  They could very well be available for a new awardee, as well.  Contractors should review the extensive GAO precedents on this issue and determine whether their internal personnel policies need to be changed.  Keeping key people can be critical to success and, while non-compete agreements can be litigated, few really want to spend the time and money on such matters as they distract from a company’s core business.

As much as 66% of the $229 billion estimated to be available for federal agencies to spend between now and the end of the FY’23 fiscal year will go through Indefinite Delivery Indefinite Quantity (IDIQ) contracts according to new data released last week by Bloomberg Government.  The figure underscores not only why it is important to have such vehicles, but the importance of knowing how to sell through such vehicles and how to guide federal customers on using them.  Bloomberg had previously predicted that 60% of remaining spend would be allocated via IDIQ contracts, but increased its projections based, in part, on expiring business Read more

While many private sector workers have returned to their offices, the same is not true for federal employees.  A Government Accountability Office (GAO) report released last week found that occupancy rates at most federal agencies are still only about 25% of capacity, or less, while none are more than half full.  GAO based its findings on data from 24 agencies that occupy 98% of federal property.  The figures pose challenges for contractors selling products such as furniture, office supplies, printers, and other devices that support office-based work.  Service companies may be challenged on when and where to send employees that had Read more

Government contractors can be forgiven if they feel like they’re stuck in the middle when it comes to compliance.  On one side are a full range of government resources including IG offices, DCAA, the Departments of Labor and Justice, and more.  Justice’s marquis compliance program is the Procurement Collusion Strike Force, the name of which should make clear the agency’s aggressive compliance stance.  As of June, the Strike Force had over 28,000 agents and 90+ open investigations.  The Strike Force website states that DOJ has secured 46 guilty pleas or Read more

Despite the fact that there are nearly three months left in FY’23, there are only approximately two-dozen legislative days remaining in the fiscal year based on a review of the House calendar and past precedent of when that chamber is in recess during August and September.  That’s very little time to finalize all 12 appropriations bills and the FY’24 defense authorization measure.  In addition to the short time, House leaders must also contend with a fractured Republican caucus where some members will definitely push for spending restraint making it difficult to come up with the 218 votes needed to pass any bill without Democratic Read more