Senate Could Vote On Stopgap Funding This Week

The Senate could vote on a measure this week to keep the government funded into December, after Majority Leader Mitch McConnell, R-Ky., filed a motion for short-term funding that would keep general funding flat along with measures for veteran care and to combat the spread of the Zika virus.

Monday’s motion would keep the government running after the end of the fiscal year, and follows a meeting between Congressional leaders and President Barack Obama that afternoon. In a statement, McConnell praised the work done at the meeting and expected to reach a deal with the House and the administration to keep the government funded through Dec. 9.

Although all 12 bills normally used to fund the government have been cleared by the House and Senate appropriations committees, partisan fights over gun control measures, funding to fight the spread of the Zika virus and protections for LGBT contractors have derailed efforts in both chambers. Several of the bills have passed one or the other chamber, but none have been sent to the President’s desk.

House Speaker Paul Ryan, R-Wis., has repeatedly pushed for appropriations bills to be passed in normal order, rather than an omnibus federal funding bill. The last time a series of separate spending bills passed on time was 1996.

Previous efforts to pass legislation funding anti-Zika efforts in the Senate have been blocked by Democrats who objected to the levels of funding — previous efforts have been either completely or partially offset by cuts elsewhere — or riders reducing funding for Planned Parenthood or federal disbursements to Puerto Rico.

McConnell used the House-passed legislative funding bill as the vehicle for the continuing resolution introduced Monday, and could see further votes later this week.

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2014 MID-TERM ELECTION ANALYSIS

INTRODUCTION

 Republicans gained a substantial majority in the U.S. Senate.

Republicans won eight formerly-Democratic held seats by defeating four incumbents and winning four open seats. They also retained all three “at-risk” Republican Senate seats (Georgia, Kansas, and Kentucky). (See below for a breakdown of the Senate elections.) The biggest surprise was the razor-thin Senate race in Virginia where incumbent Democrat Mark Warner held on to a narrow lead over Republican Ed Gillespie.

The U.S. House of Representatives retained a substantial Republican majority. The GOP reached their largest majority since 1931, when Herbert Hoover was president. Some Democratic Party leaders worry that they could be locked out of the House majority until the next round of redistricting in the 2020s.

In gubernatorial races, incumbent Republicans in Wisconsin (Scott Walker), Michigan (Rick Snyder), Ohio (John Kasich), Florida (Rick Scott), Kansas (Sam Brownback), and Georgia (Nathan Deal) were reelected, with Deal defeating Jason Carter, grandson of former President Jimmy Carter. In Wisconsin, in a setback for organized labor, overwhelming union opposition failed for a third time to unseat Governor Scott Walker—in 2010, in a 2012 recall vote, and now in Walker’s 2014 reelection—whom they considered the nation’s most blatantly anti-union governor in a historically pro-union state. In the closely-watched    race in Florida, incumbent Republican Governor Scott narrowly defeated former Governor Charlie Crist running as a Democrat. The biggest surprise was Republican Larry Hogan’s victory over Democrat Anthony Brown in predictably blue state Maryland. No one saw that coming.

 

What Do These Election Results Mean?

First, the election results mean the start of the 2016 presidential campaign. Leading potential candidates from both parties were omnipresent on the stump in the 2014 mid-term elections, especially in early presidential election-year states such as Iowa and New Hampshire. If you are fed up with this year’s political campaigns, get ready for 2016. In fact, since there will be more incumbent Republicans up for reelection in 2016 (just the reverse of this year), congressional majorities will once again be at stake, especially where voter turnout will be much higher with the White House at stake.

Second, the election results could redirect congressional attention to economic issues, which voters overwhelmingly proclaimed as their top concern. This could mean passage of legislation where both parties are able to make concessions, without compromising principles, on issues such as tax reform, infrastructure, the Keystone XL pipeline, and trade policy. Also, look for votes to repeal the Affordable Care Act, or at least to “fix” it.

However, other than possibly passing multi-employer pension plan reform and some form of immigration legislation, do not expect passage of major labor and employment legislation. Organized labor was the biggest loser in the mid-term elections. The result may also mean the start of debate on Republican proposals for major labor law reform.

Third, it means there will be more presidential executive orders, starting with immigration reform and climate change, as well as federal regulations where the administration cannot achieve its agenda through Congress.

Fourth, now that Republicans in both houses can set the congressional agenda and will have subpoena powers, it means much more aggressive oversight of agency actions at the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL), and the National Labor Relations Board (NLRB). It also could trigger possible appropriations riders to prohibit or restrict funding to enforce certain regulations, such as the imminent NLRB “ambush election rules” and the Labor Department’s regulatory overhaul of the Fair Labor Standards Act’s Part 541 overtime exemptions for bona fide executive, administrative, professional, outside sales, and computer employees.

Fifth, with a Senate majority, it means much greater scrutiny of White House judicial and federal agency nominations, even in the face of the Senate’s “nuclear option,” which removed Senate filibusters. The Republican Senate majority will try to stop nominations of progressive judicial candidates to the federal courts of appeals.

Sixth, unions took it on the chin across the country, especially in gubernatorial races. In August, the AFL- CIO said it would take out six key anti-union governors: Rick Scott of Florida, Rick Snyder of Michigan, Paul LePage of Maine, John Kasich of Ohio, Scott Walker of Wisconsin and Tom Corbett of Pennsylvania. Only Corbett was defeated.

The reelections of embattled incumbent governors in blue states such as Wisconsin, in Governor Scott Walker’s race, and Michigan, in Governor Rick Snyder’s race, who faced the furies of an all-out union assault, will embolden other governors to take on public sector unions. There may even be an effort to pass a right-to-work law in Kentucky.

Finally, Republicans proved that primary elections are important in selecting qualified candidates. Now, having been elected, Republicans have two years to prove they can govern before facing a much more challenging 2016 election–when it will no longer be enough simply to attack a lame duck president.

To be continued.

Author Martin Milita, a Senior Director at Duane Morris Government Strategies, is a member of the New Jersey and Pennsylvania Bars and has lobbied state and federally and in Canada.

Duane Morris Government Strategies is a bipartisan government relations firm. Duane Morris Government Strategies represent clients before the federal government and in Pennsylvania, Delaware, Maryland, New York, New Jersey and Ohio. Duane Morris Government Strategies professionals offer a full complement of government-affairs services, including legislative and executive branch advocacy, policy analysis, assistance with government procurement and funding programs, and crisis management.

Duane Morris Government Strategies professionals have held high-level political positions in both Republican and Democratic administrations, and have run and played active roles in federal, state, and local political campaigns. They have also worked for members of Congress, congressional and state committees, and presidential and gubernatorial transition teams. Also at Duane Morris Government Strategies disposal are hundreds of seasoned attorneys from the Duane Morris law firm who have handled complex legal issues in the public and private sectors across a multitude of industries.

 

Practical Recommendations for Bidders: how to protect your information.

Government contractors should be aware that the information compiled in their proposals has grown increasingly more valuable in this time of shrinking budgets and shrinking contracting opportunities. Fortunately, often customer lists, sensitive marketing information, unpatented inventions, software, formulas and recipes, techniques, processes, and other business information that provides a company with a business edge are protected by federal and in 47 states, respective state laws . Those laws are tools contractors can use to protect their trade secrets.

Every day, hundreds of government contractors submit proposals in response to various government solicitations — the culmination of a process that may involve months, if not years, of research and planning, the expenditure of significant amounts of money, and the participation of multiple individuals.  One of the risks of such a process is that a former employee may misappropriate a contractor’s proposal information, either in whole or in part by, for example, refusing to return certain data when leaving the company, distributing such information without the proper permissions to her new employer, or subsequently using such information in a competitor’s proposal.

In such instances, the contractor’s options for legal recourse usually depend upon whether the contractor’s proposal qualifies as a “trade secret”. Under the Federal Uniform Trade Secrets Act, it likely does and, thus, the contractor may sue the former employee and his new employer for misappropriation of a trade secret.

New Jersey has a fairly representative state law that prohibits use of trade secrets by a company that “has reason to know” that the material constitutes a trade secret. This is known as constructive knowledge (versus actual knowledge). In other words, even if a New Jersey company was unaware it possessed purloined trade secrets; it can still be prosecuted under New Jersey law if it should have known.  In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. A victim of trade secret theft can also seek financial compensation that measures the actual loss attributed to the theft or the profits (or “unjust enrichment”) acquired by the trade secret thief. In egregious situations, a New Jersey court can award punitive damages up to twice the amount of any award.

Both the federal law and most states define “trade secret” as:

[I]nformation, including a formula, pattern, compilation, program, device, method, technique or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Indeed, courts have repeatedly recognized that compilations of business information comprised mostly of publicly available information and limited proprietary information nonetheless qualify for trade secret protection.

Proposals are compilations of Information. Because the compilation of information may qualify as a trade secret, the key for a government contractor is demonstrating that its proposal constitutes a compilation of information within the context of the legal definition of, and the courts’ interpretations of, trade secret.

Practical Recommendations:

  • Always mark proposal documents with restrictive legends;
  • Impose restrictions on subcontractors’ or consultants’ use of trade secrets;
  • Require each employee to execute a nondisclosure agreement; and
  • Carefully check to ensure former employees do not make unauthorized disclosures of trade secrets, including proposal information.

Employed as senior director of Duane Morris Government Strategies, LLC, based in Trenton, New Jersey, Martin Milita advises clients on private public partnerships and all forms of government procurement. Prior to joining Duane Morris Government Strategies, LLC, in 2012, he served as managing partner of Holman Public Affairs, LLC, which he cofounded in 2001.

Two Vastly Different Outcomes: control of the Senate

While there’s no presidential race this year, the upcoming election has the potential to send a shockwave: control of the Senate is very much up for grabs on November 4, and Republicans need just six seats to gain the bare majority of 51 (if they get 50, Vice President Biden can break the tie). Currently, most experts say there’s a 60% chance of Senate control changing hands… and a Republican Senate, combined with a Republican House, could mean a substantial shift in economic policy.

Two Vastly Different Outcomes:

For example, Let’s take a look at how both a Republican- and Democrat-controlled Senate would affect investors…

If the Republicans win control of the Senate, monetary policy will become tighter. Most (though not all) Republicans want a tighter monetary policy than the Democrats, and Republicans worry about the effects of the monetary “stimulus” of the last six years.

Of course, Janet Yellen, in office until at least January 2018, will remain in charge of the Fed. However, the Senate must confirm new Fed Governors, so the monetary hawks on the Federal Open Market Committee will be strengthened over time. More importantly, Janet Yellen must appear before Congress twice yearly; with Republicans in charge in both houses, she’ll probably trim policy towards their preferences.

Meanwhile, the current economic recovery is already five years old, and the stock market has risen over 100% since 2009. Mathematically there must be a significant chance of a market crash and accompanying recession before the 2016 elections therefore. If a crash is bound to occur, the Republicans, hoping to blame any trouble on President Obama, would want it to happen before the election. Conversely, with a Democrat Senate, Yellen’s own preference for loose money will be given free rein. My guess is, in that case, interest rates will rise very little – if at all – before the 2016 elections, and we may see a further burst of “quantitative easing” bond purchases. That would prolong the economic recovery as far as possible, something the Democrats want to ensure leading up to the 2016 election. Two more years of expansion and increasing employment before the election would make President Obama’s economic record look stellar, since he took over in a downturn.

A Republican Congress:

Should the Republicans win, as is currently predicted, Congress is likely to make some significant policy changes. A Republican Senate won’t be able to push Republican policies over President Obama’s opposition – there will be no repeal of Obamacare, for example – but combined with a Republican House, it’ll be able to push the debate on issues such as public spending in its direction. A Republican Senate would likely work to reduce the budget deficit from its current $486 billion – at least while the current expansion continues – rather than allowing it to increase, as the Congressional Budget Office currently predicts.

Conversely, defense spending would increase rapidly under a Republican Senate. In fact, Republicans have already expressed unhappiness with the sharp rundown caused by the “sequester” deal last year. Furthermore, a Republican Senate would likely try to close the U.S. Eximbank. This institution has come under considerable fire as an example of “crony capitalism,” lending taxpayer money at concessionary rates to foreign governments with poor credit ratings.The Eximbank has its supporters within the Republican Party – large companies such as Boeing (BA) and General Electric (GE)benefit hugely from it, for instance – but if leadership wanted to give some red meat to the party’s ideological base, closing the Eximbank would be an obvious gesture.

Finally, on taxes, a Republican Senate is likely to move towards reforming the tax system by closing loopholes in both personal and corporate taxes and lowering the corporate tax rate. This would benefit companies currently paying close to the full nominal rate of 35%, while hitting companies such as GE that pay little tax.

Post-Election Markets:

If the Republicans win, look at major defense contractors (but not Boeing, which depends on U.S. Eximbank). As discussed above, a Democrat Senate will attempt to keep interest rates as low as possible for as long as possible, and Fed Chairman Janet Yellen is temperamentally inclined to go along with them.

Government Affairs Firm, Duane Morris Government Strategies (DMGS) Development Finance Consultants, devise tailored plans for clients that enable proposed development plans to become successful projects. DMGS has specialized project experience in commercial real estate development, municipal infrastructure, historic preservation, transit oriented development, green building, affordable housing and the associated economic development programs.

Author Martin Milita, worked with Lockheed Martin on approval of a $40 million “Grow NJ” grant through the New Jersey Economic Development Authority (NJEDA) for new machinery and equipment as well as modifications to Lockheed Martin’s Aegis testing facility located in Moorestown, NJ, which employs approximately 4,000 people. A condition of the NJEDA award was Lockheed winning the Aegis contract. The U.S. Navy awarded Lockheed Martin the 5-year, $100 million contract to provide combat system engineering services – including the design, development, integration, test and life cycle support – for all Aegis-equipped ships.

Lobbying 101.5: “Who & Where to Lobby”

Who & Where to Lobby

As a continuation of Lobbying 101 we now explore “who & where to lobby”. There is no restriction on how many members of Congress or your state legislature or a city council you may lobby. You will find, however, that your own state congressional delegation or your state senator or representative—those who are there to represent your interests—will be the most responsive.

Take Congress as the example: support or opposition can have the greatest influence at the committee level. Members of Congress who are not members of the committee handling your legislation have far less influence on how it is shaped. If your congressional member sits on a committee that is considering your issue, your lobbying will be crucial.

If your state is not represented on the committee, ask your congressman to speak with the chairman or members of the committee and endorse your position.

Remember, a bill must be passed by both the House and the Senate. If your representative is not sympathetic to an issue, lobby your senator and vice versa

Where to Lobby

Washington, D.C., Office: Your first communication to the office of a member of Congress is likely to be directed to the legislative assistant who handles your issue. The receptionist may not immediately know who that is, unless your member has consistently been involved with your immediately relevant issue.

  • Legislative assistants are generally scrambling to assemble briefings on short deadlines and not inclined to engage in extensive discussions or policy debates with constituents.
  • They want concise, well-organized presentations, including material on how this issue plays out in their member’s district.
  • They do not want long position papers that will take huge amounts of time to read and then summarize.
  • They are busy and focused on short-term demands, so if your issue is way off in the future, they will be less interested in speaking with you.
  • Keep your communications short and to the point, letting them extend the discussion if they become interested.
  • District Office: Senators may have six or so offices around their state. A congressman in a small district would only have one, in a larger district, two or three.

Staff members who work in the district office are not directly involved in the legislative process, however, they are a valuable lobbying resource. The district office is readily accessible and the staff is familiar with local issues. Usually the district director or another senior advisor is the member’s eyes and ears in the district and provides important feedback on the priority of local issues. The member’s schedule in his home district is usually arranged by these offices as well. Use District folks often.

Author Martin Milita, a Senior Director at Duane Morris Government Strategies, is a member of the New Jersey and Pennsylvania Bars and has lobbied state and federally and in Canada.

Duane Morris Government Strategies is a bipartisan government relations firm. Duane Morris Government Strategies represent clients before the federal government and in Pennsylvania, Delaware, Maryland, New York, New Jersey and Ohio. Duane Morris Government Strategies professionals offer a full complement of government-affairs services, including legislative and executive branch advocacy, policy analysis, assistance with government procurement and funding programs, and crisis management.

Duane Morris Government Strategies professionals have held high-level political positions in both Republican and Democratic administrations, and have run and played active roles in federal, state, and local political campaigns. They have also worked for members of Congress, congressional and state committees, and presidential and gubernatorial transition teams. Also at Duane Morris Government Strategies disposal are hundreds of seasoned attorneys from the Duane Morris law firm who have handled complex legal issues in the public and private sectors across a multitude of industries.

 

Lobbying 101 Continued: Strong Voices

We have already seen that for many folks, lobbying conjures up dark  images of back rooms, back slaps and spoils. But we have also seen that those images are far from the truth. Casting your ballot in the voting booth may be the most fundamental of democratic acts, but talking to your elected and appointed officials—lobbying–is the indispensable step.

We used an example of historic preservationists- but every other group of citizens- preservationists or not-, have the prerogative and the responsibility to let elected and appointed officials, federal, state and local know their actions have consequences, positive and negative.

Lobbying  (or Lobbying 101) is designed to acquaint you with the lobbying techniques, and resources available to aid in advocacy.  Its information and recommendations can be applied to federal, state and local advocacy for executive, legislative, grassroots, procurement and finance.

Remember:

Lobbying is nothing more than simply being a strong voice for things that are important to you in your community.

The most fundamental part of lobbying is establishing positive long-term, working relationships with your elected and appointed representatives, laying the groundwork for taking specific action when the need or the opportunity arises.

Martin Milita, is licensed to practice law in New Jersey and Pennsylvania. He has successfully lobbied for statutes, agency rules, and agency permits in the United States, both state and federal governments, in Canada and within the Organization for Economic Cooperation and Development in Europe and North America.

9 tips to help your small business find government contract opportunities that make sense.

As a Senior Director with Duane Morris Government Strategies I am often asked by SBE, DBE and MBE/WBE clients how to find government contract opportunities that make sense.

Despite recent budget cuts, the U.S. federal marketplace remains a lucrative opportunity for small businesses. The federal government typically spends approximately a half a billion plus in contracts every year and the law requires that 23 percent of these dollars be awarded to small businesses.

Here are 9 tips if you are a SBE, DBE or MBE/WBE to help you find government contract opportunities that make sense.

  1. Familiarize yourself with the rules

Even before a contract opportunity comes you must be prepared. Familiarize yourself with what’s involved with selling to the federal government. It’s quite different than the private sector with much longer lead times and strict bidding and product requirements.

These resources can help:

  • Learn How the Federal Government Buys from Small Businesses
  • SBA’s guide to Getting Started in Government Contracting
  • Government Contracting 101 – These three on-demand, self-paced courses are part of SBA’s Government Contracting Classroom and are a quick way to get to know the landscape.
  1. Understand what the government is buying

Every agency and department has unique goals. Identifying these can help you target a niche or opportunity for your products or services. The government offers potential contractors something that no other sector does – an insight into its budgetary priorities- what the government intends to buy and how much it has to spend is all in the public domain. These budgets offer sufficient context for savvy small businesses to identify opportunities and focus their contracting sales and marketing strategy. Each federal agency or department budget is listed on the Office of Management and Budget (OMB) website.

  1. Zero in on agencies that aren’t meeting their small business goals

Each year the SBA negotiates formal goals with individual agencies to ensure that small businesses get their fair share of federal contracts. Frankly, for several consecutive years, most agencies have fallen short of their targets. Could there be an opportunity here for your business to lend its services and goods to help these agencies hit their targets next year? The Federal Procurement Data System posts scorecards for each agency that can help you make that determination.

  1. Research existing and upcoming opportunities

Once you identify agency initiatives that align with your business offerings, start tracking contract opportunities and solicitations that align with these on sites such as USAspending.gov and FedBizOpps.gov. Market intelligence firms like ONVIA (link is external) or Immix Group (link is external) also have useful blogs (link is external) that highlight upcoming opportunities as well as contracting tips).

  1. Show up

Make a point of attending agency- or industry-specific government events. These are hosted by the private sector but attract the procurement community, influencers and industry experts. Useful sites to explore for upcoming events include GovWin((link is external), GovEvents, and if you’re interested in the lucrative IT government market Digital Government Institute (link is external), ACT-IAC (link is external) and GovMark Council. All are worth checking out.

  1. Find a partner and advocate in the Small and Disadvantaged Business Utilization (“OSDBU”)

Another excellent way of getting in front of government buyers is to take advantage of the Office of the OSDBU outreach events and expos. These serve to connect business owners to government buyers. These events also offer guidance on how small businesses can break into the contracting market and take advantage of programs like the 8(a) Business Development Program—a business development tool, which helps thousands of aspiring entrepreneurs gain a foothold in contracting with financial assistance and teaming opportunities.

  1. Get help from SBA procurement reps

Another vital government resource is SBA’s local Procurement Center Representatives (PCRs). PCRs provide services that include training, counseling and business matchmaking events. Find the PCR in your area.

  1. Don’t go it alone – partner with a government mentor

Anyone embarking on new ventures can benefit from a mentor. The government operates two notable mentor programs that can help you get access to contracts. First is the GSA Mentor-Protégé Program. Open to qualified small businesses, this program helps connect small firms with more experienced ones. The program’s objective is motivating larger companies to lend their knowledge to smaller, less experienced businesses.

Another option is the SBA Mentor-Protégé Program. Open to socially and economically disadvantaged businesses that qualify for SBA’s 8(a) program, this program pairs you with a mentor who has had success in federal contracting.

  1. Additional Resources

For more tips and insights on breaking into and growing your business in the government contracting marketplace, check out these resources:

  • SBA Contracting Guide – A deep dive into getting started, available resources and more.
  • Contracting Blogs – Learn about the latest resources and programs, and get tips on how to succeed.
  • SBA Government Contracting Classroom – Self-paced online courses on all aspects of the contracting process.