Archive for the ‘News’ Category
September 14th, 2011
10 Social Media Must Haves for Your Company’s FAR-Mandated Compliance Program
The United States Navy, the other military services, and the Department of Defense, have all recognized that their personnel are using social media and have responded by establishing detailed social media policies. Similarly, there is not a shred of doubt that your company’s employees are using social media. And, just like the military services and DoD, if you’re a government contractor then you must establish a social medial policy—and it cannot be a “cookie cutter” version of standard corporate social media policies. Among other things, it must address the risk of classified information being leaked, and the ways in which your employees’ security clearances can be put in jeopardy if they are not using social media prudently.
Put simply, your social media policy is an extension of the compliance programs mandated by FAR 52.203-13 (Contractor Code of Business Ethics and Conduct). The social media practices discussed below should be incorporated into the ethics training that government contractors are required to give pursuant to FAR 52.203-13. These practices will help bring your company into line with what the government is doing with respect to social media activity by government contractors and their employees. This list is intended to supplement recommendations for corporations engaged in the commercial sector, and is not exhaustive.
- Adopt a social media policy that reflects the policies adopted by your primary government customers—Air Force, Navy, Army, Department of Defense—and include their basic list of “Do’s” and “Don’ts” in your policy. Don’t try to prohibit lawful protected activity such as complaining about work conditions or compensation/benefits, or whistle blowing.
- Re-emphasize the importance of reporting improper activity through channels, including the company’s obligations under FAR 52. 203-13. You cannot prevent employees from discussing protected activity on social media sites, but you can emphasize the importance of reporting inappropriate activity through established internal procedures.
- Implement an effective employee training program on the use of social media that addresses the relationship between such use and the company’s mandatory disclosure obligations under its government contracts. For example, employees need to understand that, while they are free to discuss activities for which the company has a disclosure obligation under FAR 52.203-13 on social media, their discussion could place the company at risk if the same information is not reported internally to enable an appropriate investigation to be conducted.
- Employees should be instructed that information disseminated through social media that reflects a lack of professionalism, unethical behavior, or potential criminal misbehavior on the part of company employees could have a negative impact on a future determination as to the company’s responsibility. In some cases, it could result in the employee being barred from working on government contracts.
- Employees who have security clearances should be given special instructions (e.g. do not connect with people they do not know (it could be a foreign national), use the highest privacy settings, and be mindful of what would need to be disclosed on the SF-86 Questionnaire). Your employees should be made aware that publicly available information on social networking sites is being considered in their background investigations for security clearances and program access. Further, information that reflects a lack of professionalism, unethical behavior, or potential criminal misbehavior may prevent them from having a security clearance.
- Update your e-discovery policies and procedures and make sure that you include social media activity and cloud computing because it is discoverable.
- Update your document retention policy to make sure you are capturing and storing the social media activities of your company, and don’t forget employees conducting business from their smart phones and tablets.
- Update your Sarbanes-Oxley Act compliance program to ensure that financial information posted on your Facebook fan page, Twitter, website, etc. is updated to reflect material changes in financial condition and operations. Do not release financial information on social networking sites that you have not also published in a press release.
- Train your HR department, managers, and anyone making employment decisions so they do not use information from social networking sites to discriminate against anyone based on protected factors under federal or state law. Set up protocols so protected factors are not considered and take steps to assure that your equal employment affirmative action programs include appropriate use of social media.
- Take reasonable measures to protect your trade secrets and data subject to limited rights under your government contracts. Update your confidentiality agreements and computer use policies with employees. Clearly communicate what are the company’s trade secrets and limited rights information and the ways in which use of them is restricted.
September 14th, 2011
10 Ways to Waste Your B&P
B&P is a precious resource, a pool of investment dollars. Used wisely, B&P can perpetuate one’s existing position in the market, grow existing product lines, and expand into new fields of endeavor. The prudent use of B&P can be the difference between achieving short, intermediate and/or long term business goals and failing to do so. All too often, however, companies can fall into patterns of conduct that effectively vitiate that investment.
Some common traps to avoid on the road between the decision to pursue a solicitation and the award of a contract include the following:
- Rely on what you hear and read at “Industry Day” meetings and pre-solicitation conferences – These statements are, to be sure, well-intentioned and probably reflective of the speakers’ actual, then-current mind sets, but they are irrelevant if contradicted by the words of the solicitation.
- Believe all that “back channel” communication about what the Government “really wants” – However important and well-informed that source is, if the “chatter” does not mesh with the words of the solicitation, reliance on it is folly. So, if your source tells you that this is going to be a “price shoot-out” but the RFP says that “Technical” is the most heavily weighted factor, believe the RFP.
- Regard ambiguity as your friend – A court may interpret an ambiguous contract terms against the party that drafted it, but neither the GAO nor the COFC will apply that rule in the context of a bid protest. If you have any doubt what an RFP provision means, ask.
- Be afraid of insulting the customer by asking for a written answer – If you are going to ask, ask in writing and expect a written answer. You cannot – C-A-N-N-O-T – rely with any confidence on oral advice regarding the interpretation of terms and conditions of the RFP. There are two very simple reasons for this – (1) it is the law, and (2) it is the law because private, unilaterally communicated guidance regarding the agency’s intentions is inherently unfair to other Offerors.
- Limit the number of questions you ask – Obviously, you should not be asking foolish questions, but there is some merit to the adage that “The only foolish question is the one you don’t ask.” You should scrub the RFP using a multiplicity of disciplines, including Legal, to identify gaps, inconsistencies, ambiguities, informational deficiencies, and changes you would like. Then ask, in writing. There is no need to limit the number of requests for information that could legitimately affect the structure or composition of an offer. If the Government wants you to spend time and money responding to an RFP, the least it can do is provide a clearly written and unambiguous solicitation. Make sure it does so.
- Only ask questions for which you do not know the answer – Sometimes a question by an incumbent can be used to educate uninitiated and uninformed competitors about problems they will confront in performance that might not jump off the pages of the RFP. Since the question and answer will be published to all Offerors, this kind of question serves to communicate a risk to the competitors of which you are already aware and for which you will be making allowances in your pricing. The Q&A may well have the effect of motivating them to price that risk in their offers when they otherwise might have been oblivious to the risk and offered a lower price.
- Rely on your reputation – This has been the downfall of many an incumbent. Warmed by the glow of the hearty reception that its performance has received from the customer, the incumbent all too often forgets that the award is based on an evaluation of this proposal against these evaluation criteria. You do not know who the evaluators are going to be or what knowledge they bring to the table, but, in any event, their duty is to evaluate the contents of the proposal, not your press clippings.
- Be intimidated by the prospect of customer backlash to a protest – Of course it happens, but it is not supposed to, it happens far less than contractors fear, and it happens even less in the context of protests against the terms of an RFP, as opposed to protest against an award. Unless the RFP has been jiggered to favor a particular Offeror (which, of course comes under the heading of “wrong” and should be protested), the likelihood that a reasoned protest against the terms of an RFP will incite Government ire and retaliation is relatively small. In fact, an early protest against the terms of the RFP gives the agency the opportunity to take corrective action and keep the procurement on schedule.
- Bide your time – If you cannot get answers to your questions about the RFP, if the agency refuses to modify the T&C’s that you regard as unfair or inappropriate, just wait until the award to see if you were damaged in the process. Why protest until it becomes clear that you need to spend that money on legal fees? “All things come to he who waits” and among those things are frustration, disillusionment, and the sure and swift dismissal of your untimely protest. If the problem is there on the face of the RFP you must protest before the date set for receipt of initial offers.
- Regard an agency level protest as an adequate response to a defective RFP – This is a corollary to Rule No. 8 and Rule No. 9. The agency level protest is the contractor’s hedge against an adverse customer relations response to a protest – “If I keep it private, the customer will appreciate my discretion.” True in many cases, but with risk. The receipt of offers against the RFP notwithstanding the pendency of an agency level protest is regarded as “initial adverse agency action” on your protest. That adverse action triggers the time within which you must elevate your protest to the GAO or elect to put all your protest eggs in the agency protest basket. Fail to do so within ten days and, when the agency denies your protest, you will find access to the GAO barred by its timeliness rules. A hint here – if the agency has not granted your protest against the RFP by the time offers are due, it is pretty darn likely you have not persuaded it to change the solicitation.
June 22nd, 2011
Baldwin and Briscoe Signs Up For Second Year With “Jerry’s Kids”
Last year, The Law Offices of Baldwin and Briscoe, P.C. volunteered its managing partner, Samuel Baldwin, to participate in the Muscular Dystrophy Association’s “St. Mary’s Lock-Up.” Faced with the challenge of collecting a $3,000 “bail” from our friends, clients and fellow attorneys throughout Southern Maryland within six weeks, we were able to meet our goal after only fourteen days.
This year,“Jerry’s Kids” have again asked Baldwin and Briscoe to participate in their annual fundraiser. Based on our success last year, our Southern Maryland law firm has set its own goal of raising $5,000 to benefit the Muscular Dystrophy Association.
Our fundraising effort was kicked off yesterday afternoon, with the first e-blast of donation requests already resulting in several hundred dollars donated to “Jerry’s Kids.” With your help this year, we’ll shatter expectations again and raise well over our $5,000 goal.
To help “Jerry’s Kids”, please visit our firm’s St. Mary’s Lock-Up Page here.
June 16th, 2011
Cell Tower/Wind Turbine Lease Contracts in Southern Maryland
The Law Offices of Baldwin and Briscoe, P.C. has recently become aware of a developing pattern in the Southern Maryland area. Property owners in Southern Maryland have been approached with lease contracts that would allow cell tower sites on the property owners’ land. These contracts provide for leases of the property and the payment of a fixed monthly rent to the property owner. In return, the developer would be allowed to erect a cell tower and would be provided an easement to the site of the cell tower.
However, embedded in the contracts our Southern Maryland attorneys analyzed was language that grants the developer the right to erect wind turbines on the leased property. These wind turbines, which the contract stipulates may be of unlimited height, could severely disrupt a property owner’s enjoyment of their property. Furthermore, if the leased property is used for wind turbines instead of cell towers, the terms of the monthly payment to the property owner change.
As a property owner, you owe it to yourself to firmly review the terms of any lease contract presented to you. Pay close attention to property use in the contract, and ensure that your property won’t be subject to any intrusive easements. Make sure that you are being properly compensated for the lease; you don’t deserve to be paid pennies on the dollar for a lease on your land. If you are uncomfortable with any language in the contract, and would like it to be professionally analyzed by a Southern Maryland attorney, always feel free to call or visit our offices in Lexington Park, Maryland.
February 15th, 2011
Alleged Failure to Properly Cut Down Tree – Plaintiff Permanently Injured!
ALLEGED – FALIURE TO PROPERLY CUT DOWN TREE
ALLEGED – FALIURE TO KEEP A PROPER LOOKOUT
PLAINTIFF PERMANETLY INJURED
The Plaintiff was the gratuitous owner of a home. Deciding that he wanted to clean up the property for its owner, the Plaintiff asked our client to bring over a chainsaw and cut down a dead tree. Our client did so, but while in the process of doing so the Plaintiff ran under the tree causing it to strike him at the base of his skull. The Plaintiff was injured to such an extent that he has lived in a nursing home ever since.
Suit was brought against the homeowner and our client, the neighbor who actually cut the tree down.
The homeowner denied all liability claiming in part that she had no knowledge that the Plaintiff would be cutting this tree down and that the co-defendant was not acting on her behalf or for her benefit when the tree was cut down.
Our defense focused both on the actions of the Plaintiff himself and the precautions taken by our client.
Our client stated that, before making any cuts in the tree, he pre-determined where he wanted the tree to fall. His intention was to have it fall in a clear area of the yard. Before making the initial V-cut, he surveyed the yard and observed that the Plaintiff was behind him and was away from the fall zone. After making the initial V-cut, our client again surveyed the fall area and again observed that the Plaintiff was standing behind him opposite of where the tree would fall. Our client leaned over to make the back cut and the tree began to fall. Only when our client stood up, as the tree was falling, did he see that Plaintiff had run from behind him and into the area of the fall.
Although the Plaintiff did not testify, our client testified that it appeared as if the Plaintiff went into the fall zone to pick up a shinny object that was lying in the grass precisely where the tree would fall.
After a jury trial, the jury ruled in favor of both defendants.
November 30th, 2010
Domestic Violence Presentation
Have you ever wondered how the St. Mary’s County court system views domestic violence? Wonder no more. Within this 15-slide presentation, you will find many answers to your questions. Items discussed include, the domestic violence definition, eligibility requirements for a protective order, protocol on how to ask the courts for protection, the protective order hearing process, consequences for violations of the peace order, how to file criminal charges, and popular forms that may be used during the domestic violence case.
To view the domestic violence presentation, click here.
If you have additional questions, concerns, or would like to visit an attorney for a consult, please contact our office. We look forward to hearing from you!
August 9th, 2010
Baldwin & Briscoe Raises Over $3000
Within the last month, Baldwin & Briscoe signed up to raise $3000 for the Muscular Dystrophy Association. There was a 6 week deadline, but the firm exceeded the target amount within one third of the allotted time!
Special thanks to all who have contributed to the success of the fundraiser. It brings us great pleasure to help “Jerry’s Kids”.
To learn more, please go to the MDA website.
July 16th, 2010
Baldwin & Briscoe is Raising Money for the Muscular Dystrophy Association
Click here to help the cause!
September 2nd, 2009
Forming Agreements within the Government Contracting Community.
Members of our firm have presented to various small and medium size business owners throughout the Southern Maryland region.
This presentation provides a brief overview of the many factors to consider when forming teaming agreements, subcontracting agreements and joint venture agreements in the Government Contracting community.
Click below to view the presentation.
Forming Agreements within the Government Contracting Community
Find more detailed information regarding our Government Contracting practice areas here.