The American Management Association presents a free webinar webcast addressing the contract officer representative’s role and a number of tools that can be used during performance of the contract to ensure a successful post-award phase of the acquisition process.

The contracting officer’s representative (COR) is the principle representative of the contracting officer (CO) for post-award management of the contract, the association says on its website. There are a number of tools available to the COR to monitor contractor performance.  These are six of the most effective tools to monitor contractor performance:

1. Contractor Progress Reports
2. Contractor Quality Assurance Plan (QAP)
3. Quality Assurance Surveillance Plan (QASP)
4. Earned Value Management (EVM)
5. Performance Assessment
6. Product or Service Inspection & Acceptance

Watch the on-demand webinar.

The U.S. Department of Labor has issued proposed guidance and the Federal Acquisition Regulatory Council has issued proposed regulations requiring government contractors and subcontractors to report regularly on workplace law violations found by administrative agencies, the courts, and arbitrators, reports Jackson Walker in a new paper.

The regulations are part of the implementation of President Barack Obama’s “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673), often called the “Blacklisting” or “Bad Actors” executive order.

“The government would take an employer’s record of violations into account when deciding whether to award future contracts, cancel existing contracts, and potentially demand remedial action to address a pattern of violations,” the authors write in the article posted on Lexology.

Read the paper.

Regardless of whether you are a supplier or purchaser, it is imperative to know whether your contract with your purchaser or supplier is a “requirements contract,” according to a paper published by Greensfelder, Hemker, & Gale.

“Potentially conflicting terms and conditions in purchase orders and invoices exchanged between parties may result in the formation of a ‘requirements contract’ or preclude the formation of such an agreement. And whether you are a supplier or purchaser, a requirements contract will have a material impact on your rights and obligations.” writes Thadford Felton.

The paper defines requirements contracts and gives examples of building protections into contracts.

Read the paper.

The 9th U.S. Circuit Court of Appeals has found that employee agreements to arbitrate may be obtained through written acknowledgments referencing company manuals, reports Pepper Hamilton in a new paper. An employee’s agreement to abide by a company manual is sufficient to send Title VII claims to an arbitrator.

“Arbitration remains a preferred forum for many employers, yet courts are often wary of enforcing arbitration agreements against employee-plaintiffs,” the paper says. “This has often been the case where employees made claims under Title VII of the Civil Rights Act of 1964, which provides for a statutory jury right that potentially conflicts with the Federal Arbitration Act.”

Authors of the paper are partners Jeffrey M. Goldman, Sharon R. Klein, Matthew H. Adler and associate Kevin Crisp.

Read the paper.

The Texas Supreme Court has ruled that life settlements sold by Life Partners Inc. are securities under state law, breathing new life into lawsuits brought by the Texas State Securities Board and a putative class of investors, reports law360.com.

“In the Texas cases brought by the state securities regulator and a group of investors, Life Partners had won trial court dismissals. But appeals courts in Austin and Dallas revived the claims after finding the life settlements were investment contracts, not insurance contracts, making them securities under state law.” the report says.

Keith Langston of Langston Law Firm, based in Longview, Texas, represents the investors.

Read the opinion.

Read the story.

Berkman Solutions has compiled a list of 10 techniques to enhance the value of legal services after a contract is signed.

The list of techniques expands on such points as notifying clients of expiration dates and auto-renewal termination notice dates, and monitoring contract compliance for both parties, provisions, and regulations.

It also discusses assigning contract tasks to client staff, summarizing financial structure, and identifying contract assets.

“As a lawyer, you invest time to understand your client’s objectives, risks, and opportunities. What happens to your carefully drafted contract?” Berkman Solutions asks on its website. “Your contract is filed and forgotten. Your client needs the benefit of your drafting during the entire contract term. Your client’s need is your opportunity.”

Download the list.

The First U.S. Circuit Court of Appeals has ruled in First State Ins. Co. v. National Casualty Co., a case involving reinsurance and retrocessional agreements, that the agreements between the parties contained an honorable engagement provision, which directs the arbitrators to consider each agreement as an honorable engagement, not merely a legal one.

A post by Baker & McKenzie and posted on Lexology discusses the case in detail.

The court hadn’t considered such a clause before, but the clause empowers arbitrators to grant forms of relief not explicitly mentioned in the underlying agreement. “Thus, because the arbitrators were authorized to grant equitable remedies, and because the reservation of rights procedure in the award was such a remedy, there was no basis to vacate the award,” the post explains.

Read the article.

In an article published on Butler Snow’s website, Lauren Patton describes a contract situation in which an executive has signed a contract “on behalf of” the company, but did not sign the contract individually. During the course of the matter, the third party brings claims in court against the executive in his individual capacity, and the executive wants to force those claims to arbitration.

She discusses whether the fact that the executive did not sign the contract containing the arbitration provision in his individual capacity is fatal to enforcement of the provision.

She cites prior cases and common law in her discussion.

Read the white paper.

Merrill Datasite offers a free online assessment designed to give a business manager a better understanding of a company’s internal business need and help make a business case for a new contract management system.

“You know your organization needs a better contract management solution,” Merrill says on its website. “For months, maybe even years, you’ve been trying to make the case, but you’re still running in circles; the challenges and potential problems of your current system continue to mount.

“What will it take to finally convince senior management that it’s time to take action? First, you need to identify the driving business need in your organization. Then, you can use it to make the case for a new contract management system.”

Take the assessment.

The government’s right to terminate a contract for default carries the underlying principle that a default termination is a drastic sanction that should be imposed or sustained only for good grounds and solid evidence, writes Watson & Associates of Colorado and Washington, D.C.

When appealing the contracting officer’s decision, contractors should make sure that they have sound documentation of communications that could work in their favor on appeal.

“Also included in the limitations on the government to terminate a contract for default, case law requires that that the government bear the burden of proof as to whether a termination for default was justified,” the article continues.

Read the article.

In view of the importance of contract analysis for determining joint infringement, practitioners would do well to obtain contracts early in discovery to determine the strength of their positions, and practitioners drafting contracts should be mindful of potential joint infringement implications, reports Foley & Lardner LLP in a new white paper.

Justin M. Sobaje writes that the recent decision by the Federal Circuit in Akamai v. Limelight on remand that predictions attention would shift to contract analysis for determining direct, rather than induced, infringement in these multi-actor method situations, known as joint or divided infringement.

“Given the increased scrutiny of contract terms for determining instances of joint patent infringement, practitioners providing advice in the drafting of contracts should be aware of the potential issues and provide guidance aimed at avoiding anticipated dangers,” the paper says.

Read the white paper.

In a new complimentary webinar posted by Tensoft Inc., Jeffrey Werner, Silicon Valley software revenue recognition expert and lecturer, discusses revenue recognition for services and contracts.

In the presentation, Werner talks about time and materials contracts and fixed fee contracts. He also discusses the percentage of completion method, the completed contract method, and the zero margin method among other ways of accounting for service and contract accounting projects for companies.

Watch the on-demand webinar or download the slides.

The 5th U.S. Circuit court of Appeals ruled in an arbitration award that a district court had wrongly concluded that the court was the proper decision-maker on contract formation, according to a report produced by Stinson Leonard Street and posted on JDSupra.

“Although courts are presumptively authorized to decide whether an arbitration agreement exists, the Fifth Circuit found the parties altered that presumption by ‘submitting, briefing, and generally disputing that issue throughout the arbitration proceedings’,” wrote Liz Kramer for the firm. The case was OMG, L.P. v. Heritage Auctions, Inc.,  2015 WL 2151779 (5th Cir. May 8, 2015).

She wrote that OMG claimed that it was owed more commissions than the auction house had paid it for firearm sales. The case involved a dispute between the parties on how to interpret the term “merchandise.”

Read the article.

The International Association for Contract and Commercial Management, in collaboration with Sage Ltd., has launched a new journal called the Journal of Strategic Contracting and Negotiation. The first edition of the publication is available free of charge.

It also addresses the impact of contracting and negotiation on trust and ethics in business. As a cross-disciplinary endeavor drawing on the social sciences, JSCAN aims to lead the wave of change concerning theory, research and the practice of strategic contracting and negotiation.

“The launch of the Journal of Strategic Contracting & Negotiation is a momentous event for anyone who cares about the field of contracting,” writes CEO Tim Cummins in the IACCM blog. “For the first time, there is a dedicated academic journal that will promote and consolidate research in this area.”

Multidisciplinary in nature, JSCAN welcomes submissions in the fields of anthropology, economics, finance, international business, law, marketing, operations, organizational behavior, organization studies, political science, project management, psychology, strategic management and sociology. Get more information about submitting articles.

Download the first edition.

ECM Solutions of Charlotte, N.C., presented the webinar “Take Some Uncertainty/ Risk Out of Your Business” and posed the question: “have you uncovered all your risks?”

The webinar was an installment in Technology Associates’ Expertise in Business Webinar Series. John Ketner, a partner at ECM Solutions, was the presenter.

On its website, Technology Associates says there are many reasons why businesses fail or suffer great losses – but risks that are uncovered and properly planned for aren’t one of them. “So what exactly is risk in a business setting, what are the different methods of uncovering risks, and what should we do once we have uncovered one that needs attention?”

Watch the on-demand webinar.

ProcessUnity has posted a white paper that explains how to use pre-contract due diligence to intercept vendor risks before they become problems.

“Today’s global, digital economy opens up a world of opportunities — and a whole new world of risk exposure,” ProcessUnity says on its website. “When important parts of your business can be fulfilled anywhere, risks may be everywhere. If one of your vendors takes a hit, you could take the fall. Which begs the question: Do you have a clear picture of your vulnerability? Download ProcessUnity’s white paper to learn how to get it right from the start, using pre-contract due diligence to intercept risks before they become problems.”

Topics include:

• The nine-step process to create a rational due diligence program
• Why manual due-diligence is just not manageable
• How to harness the power of automation to streamline vendor onboar

Download the white paper.

Contract Analyst, a part of Berkman Solutions, has published a white paper discussing how to initiate a risk management framework for legal professionals, contract managers, and compliance officers.

Besides explaining risk management for legal professionals and contract managers, the article also outlines steps to develop and implement a framework to identify and track legal and compliance risks using contract examples.

The webinar walks through the steps of developing a risk management framework, such as, identifying “events with uncertainty,” breaking each event into risks, assessing each risk (qualitative rating), placing all risks in a risk register, and treating risks.

Read the white paper.

Exari Group presents a complimentary white paper that provides an overview of document assembly and contract management solutions and gives an insight into what questions to consider when choosing software.

Those questions include:

• How many people will create documents?
• What are your infrastructure/IT requirements
• How complex are your documents?

On its website, Exari says it works with companies around the world to give them the ability to automatically assemble contracts, track every contract in their organization, and analyze those contracts to ensure compliance and enhance revenues.

Read the white paper.

Frederic Levy, until recently the chair of McKenna’s government contracts practice, will serve as co-chair of Covington’s government contracts group with Jennifer Plitsch and Alan Pemberton. (PRNewsFoto/Covington & Burling LLP)

Covington is significantly expanding its government contracts practice with 19 lawyers from one of the nation’s top government contracts groups, including its former chair and leaders in contractor tort liability, bid protests, procurement fraud, trade secrets and employment, according to a release from Covington.

The group of five partners and 14 other lawyers from McKenna, Long & Aldridge expands and deepens Covington’s capabilities across a range of government contracts matters. Frederic Levy, until recently the chair of McKenna’s government contracts practice, will serve as co-chair of Covington’s government contracts group with Alan Pemberton and Jennifer Plitsch.

These additions double the size of Covington’s government contracts group and place it among the nation’s largest. The work of the new lawyers runs the gamut from contract formation to bid protests to claims and internal investigations to tort litigation to False Claims Act litigation. Chambers has consistently ranked McKenna’s government contracts practice in its highest band, and the group that joined Covington includes most of that firm’s Chambers-rated lawyers in government contracts.

Read the story.

As companies become more aware of — and liable for — breaches involving confidential data, they are seeing more negotiated provisions governing breaches, says a paper published by Nossaman LLP on JDSupra.

Some provisions require notice earlier than statutory requirements, notice in a particular manner, or specific information included with the notice, writes Nossaman partner Brendan Macaulay. Those provisions are often accompanied by indemnity provisions that can be burdensome and open-ended.

He advises companies to re-examine those indemnification provisions and scale back open-ended obligations in light of the current data breach and regulatory environment.

Read the paper.