Ward & Berry, PLLC

A few recent updates on the Corporate Transparency Act (CTA) litigation in the Eastern District of Texas, which we've been watching closely (see our post from earlier this month - https://lnkd.in/eM4HRSkr): - FinCEN confirmed that it would comply with the District Court's order enjoining enforcement of the CTA "as long as it remains in effect." "Therefore, reporting companies are not currently required to file their beneficial ownership information with FinCEN and will not be subject to liability if they fail to do so while the preliminary injunction remains in effect. Nevertheless, reporting companies may continue to voluntarily submit beneficial ownership information reports." (https://www.fincen.gov/boi) - The Department of Justice appealed Judge Mazzant's order to the Fifth Circuit, and also filed a motion before Judge Mazzant seeking a stay of the preliminary injunction pending appeal. Judge Mazzant denied that request. - Before the Fifth Circuit, DOJ filed a separate emergency motion for stay pending appeal on December 13. DOJ requested a ruling as soon as possible, "but in any event no later than December 27, 2024, to ensure that regulated entities can be made aware of their obligation to comply before January 1, 2025." This language suggests that the compliance obligations for reporting companies could change very quickly if the Fifth Circuit stays Judge Mazzant's preliminary injunction; accordingly, reporting companies should keep a close eye on FinCEN's BOI webpage. #CTA #transparency #compliance #FinCEN Daniel Ward Ryan Berry Ryan Bradel Amanda Merced Jennifer Morris Tyson Marx Michael Hatch Chelsea Cruz Nicholas Perry Matthew Saliman Brian Yu Kerry McCarthy Jill Berry Juliana Berry

Pre-award protests are underutilized at the GAO. See KBT Contracting Corporation, B-422662.2, publicly filed on December 13, 2024 (decision below). KBT is a Florida maintenance, repair, construction, and design-build services company. Its proposal to perform those services on an IDIQ was rejected by the Army, National Guard Bureau. The reason? The contracting officer stated that KBT did not provide a past performance example stemming from work on a DoD Contract issued by a DoD component, which was a requirement under the solicitation.   So, what did KBT submit? KBT submitted work it had done for the Florida National Guard, who is undeniably a member of the DoD. However, the funding source for KBT’s Florida National Guard contract was the state of Florida, not the federal government. As such, the GAO agreed with the contracting officer that KBT’s proposal did not contain work performed for the DoD on a contract issued by a DoD component. This case was ripe for a pre-award protest for a few different reasons. As a reminder, pre-award protests must be brought prior to the submission deadline for proposals. First, whether work performed for the Florida National Guard but funded by the state of Florida qualified as work performed on a DoD contract presented KBT with a patent ambiguity. On the face of the solicitation, it was unclear whether KBT’s past performance met the solicitation’s requirements for past performance. Forcing the Army (and as a result of a protest, the GAO) to decide whether KBT’s Florida National Guard contract met the solicitation’s requirements from the outset could have changed how KBT prepared its proposal. If KBT knew its Florida National Guard work did not meet the solicitation’s definition of prior work, it likely (hopefully?) would have chosen different past performance examples to include with its proposal. Patent ambiguities cannot be challenged after award because if successful, the protester would have an unfair advantage over the other offerors to amend its proposal in order to meet contract requirements. In this case why would KBT be given the opportunity to provide different past performance examples while other offerors could not? Second, in as much as KBT believed that work performed for and funded by the Florida National Guard should have met the requirements of the solicitation, that challenge too must have been brought pre-award. In that instance, KBT’s challenge would be that the solicitation contained a defect—that it unreasonably excluded capable contractors with relevant past performance because of what amounts to a technicality on funding sources. Again, flaws in a solicitation must be brought prior to the submission deadline for protests. Ward & Berry provides a primer on protests at the GAO (link: https://lnkd.in/e6viga-f), including pre-award protests. Don’t wait until it is too late! 

Kick off the new year with the Ward & Berry, PLLC team and our friends at Q-Branch as we host our next Speakeasy on January 30th, 2025, in Austin, Texas. This next exclusive gathering will feature a fireside chat with Rich Julien, Partner at BOKA Capital and Chris Siepmann, Managing Director at Weller James, who will lead an off-the-record discussion on "The Election Effect: A Conversation on International Trade and Dual-Use Investments." Expect engaging conversations, great bourbon, and delicious Texas BBQ in a relaxed and intimate setting. Due to the exclusive nature of our gatherings, attendance is limited. We curate each event based on responses to the questionnaire linked below to ensure every Ward & Berry Speakeasy brings just the right group of people together for each topic, maximizing the overall value for attendees.  To join us, please apply here: https://lnkd.in/eedbmA2u Learn more about our guest speakers: Rich Julien: Rich is an experienced operator in both government and commercial domains across technology, analytics, operations, programmatics, and management. Known for his expertise in technology innovation, risk, and change management, Rich has a proven track record of driving progress and innovation. He was formerly the Global Head of National Security and Space Startups for AWS Worldwide Public Sector and previously held impactful roles at HawkEye Systems and Booz Allen & Hamilton. A former officer in the US Army, Rich holds a BA from the University of Southern California. Chris Siepmann: Chris is an international affairs expert whose work has impacted over $100 billion in global commerce. As Managing Director of Weller James, he advises clients on geopolitics, international trade strategy, policy changes, reshoring & nearshoring, value chain risk, duty mitigation, foreign direct investment, and related topics. Prior to entering the private sector, he served as Director of Trade Enforcement at the White House Office of the U.S. Trade Representative, where he advised senior government leaders in the first Trump administration on the U.S. - China tariffs and steel and aluminum tariffs, along with a broad range of other industrial competitiveness and trade-related issues. Before that, Chris led U.S. government investigations into unfair international trade practices at the U.S. Department of Commerce's International Trade Administration. Ryan Berry, Daniel Ward, Ryan Bradel, Amanda Merced, Tyson Marx, Jennifer Morris, Michael Hatch, Camille Chambers, Matthew Saliman, Chelsea Cruz, Nicholas Perry, Brian Yu, Kerry McCarthy, Jill Berry, Juliana Berry, Samantha Brown, Marcos Cervantes, Joy Schoffler #WardBerry #Speakeasy #GovConEvent #GovCon #InternationalTrade #DualUse

What a week—and what an event! 🎉 Ward & Berry, PLLC’s 'Speak Easy' space was buzzing with energy Tuesday (ahead of their 'Speak Easy) as they hosted the AFCEA NOVA Emerging Leader end-of-year event. It was a fantastic turnout, complete with an engaged Q&A session, great BBQ, and a splash of whiskey to keep the conversations flowing! 🥂🍖 A big shoutout to AFCEA NOVA, Ward & Berry and the incredible group of young leaders who brought their curiosity and enthusiasm to the table. Your questions and insights truly made the evening inspiring and motivational. Here’s to wrapping up the year on a high note and looking forward to what’s ahead! 🚀 Andy Sauer Ben Wheat Carole C. Meredith W. Dr. Bilyana Lilly Alison King Tatyana B. Ryan Mahoney Snell Hunter Cronier Lucas Wylie Don Sauer Donny Sauer Aubrey Milham Michael Gresens Jennifer Morris Ryan Berry Ryan Bradel #EmergingLeaders #AFCEANOVA #PassionVsPaycheck #AFCEAInternational #Cybersecurity #FutureofCyber #WorkforceOfTheFuture

We've been closely tracking the Corporate Transparency Act (CTA), a sweeping federal law that would require tens of millions of businesses to report information regarding their "beneficial owners" to the U.S. Department of the Treasury's Financial Crimes Enforcement Network ("FinCEN") (Daniel Ward and Nicholas Perry recently led a webinar focusing on the law's reporting requirements, accessible here: https://lnkd.in/gJUW--Q9). For most existing businesses covered by the law, initial beneficial ownership information ("BOI") reports were due by January 1, 2025. However, on December 3, Judge Amos Mazzant of the Eastern District of Texas--who described the CTA as "quasi-Orwellian" in his opinion--issued a nationwide preliminary injunction halting enforcement of the CTA and FinCEN's related "reporting rule." Of note, Judge Mazzant concluded that the plaintiffs' challenge under the 10th Amendment of the U.S. Constitution was likely to succeed on the merits, holding that neither the Commerce Clause nor the Necessary and Proper Clause of the Constitution justified Congress's enactment of the CTA. Consistent with the injunction, Judge Mazzant stated that "reporting companies need not comply with the CTA's January 1, 2025 BOI reporting deadline pending further order of the Court." However, it is worth noting that an appellate court--specifically the Fifth Circuit or the Supreme Court--could stay the injunction pending appeal, which would reactivate the reporting requirements (although, in that case, FinCEN could still take steps to extend deadlines that would become immediately applicable). Judge Mazzant's Memorandum Opinion and Order is available here: https://lnkd.in/g4NGQJ7z Ward & Berry, PLLC will continue tracking this case as it proceeds; stay tuned! #CTA #transparency #compliance #FinCEN Daniel Ward Ryan Berry Ryan Bradel Amanda Merced Jennifer Morris Tyson Marx Michael Hatch Camille Chambers Chelsea Cruz Nicholas Perry Matthew Saliman Brian Yu Kerry McCarthy Jill Berry Juliana Berry

Our team is proud to be supporting the Federal Publications Seminars Government Contracts Year in Review as a Platinum Sponsor this year. You can find the Ward & Berry team on day 1 at the Bid Protests: 2024 Developments, Trends, and Lessons for the Legal Department and Management panel to hear from Ryan Bradel on December 4th at 10:45 AM. And on day 2 at the CMMC Update and Cybersecurity 2.0 panel to hear from Jennifer Morris on December 5th at 8:30 AM. Send us a message if you want to meet up this week. #Sponsors #WardBerry #GovCon #MeetsUsThere

The Ward & Berry team are proud sponsors of the Cyber Security Hall of Fame Awards Dinner in #Baltimore this week. Daniel Ward and Jennifer Morris are looking forward to attending. Send them a message if you're planning to be there too. #WardBerry #CyberSecurityHallOfFame Larry Letow

The Ward & Berry team are proud sponsors of the Cyber Security Hall of Fame Awards Dinner in #Baltimore this week. Daniel Ward and Jennifer Morris are looking forward to attending. Send them a message if you're planning to be there too. #WardBerry #CyberSecurityHallOfFame Larry Letow

Jennifer Morris, Partner at Ward & Berry, is speaking at the #CybersecurityMarketingCon24, hosted by Cybersecurity Marketing Society on December 9th in Philadelphia. This #GovCon panel is one that you'll want to attend. Jenn's conversation with fellow experts Joy Schoffler, Shaun McDougall and Debbie Sallis will be about breaking into federal markets and building strong relationships in the #GovCon space. Send us a message if you'd like to connect with Jenn at the conference. #WardBerry #Cybersecurity #NationalSecurity #GovConEvent Gianna Whitver