One of the most common issues subcontractors face is non-payment. Sometimes subcontractors have a positive relationship with the prime contractor and resolve the issue amicably. However, when the parties cannot reach an agreement, the subcontractor faces financial turmoil. Even worse, if a subcontractor fails to take prompt legal action, it can lose access to one of the most effective ways to recover the amounts due.

On a private project, a subcontractor may file a mechanic’s lien to secure its right to payment. However, when the owner is the federal government, a subcontractor has no lien rights. Instead, the subcontractor must pursue its claims via the Miller Act. For every government contract, the Miller Act requires that the prime contractor post a payment bond to guarantee that its subcontractors and suppliers will be paid in a timely manner. The Miller Act allows subcontractors to make claims against the bond when the prime contractor fails to satisfy its payment obligations. However, the right to make such a claim does not last forever. The deadlines for a payment bond claim differ depending on who the subcontractor or supplier has contracted with. Continue Reading Haven’t Been Paid? Preserve Your Rights Under the Miller Act

In the world of federal government contract disputes, a great deal of time is frequently spent drafting a request for equitable adjustment (REA) or a claim under the Contract Disputes Act. Both of these actions are often a prelude to litigation and, when the parties cannot agree to an amicable resolution, lead, inevitably, to a trial. Once this process is underway, contractors and their attorneys begin the tedious process of developing a litigation strategy that involves reviewing voluminous documents, identifying and interviewing potential witnesses, and everything that goes into pre-trial discovery. The process is time-consuming and expensive. This is unfortunate because there is little doubt that putting a dispute in the hands of a judge is the most hazardous and unpredictable way to resolve a dispute. The sad truth is that some judges have a government bias, but there are also some who are more willing to accept a contractor’s point of view. Ideally, the result of litigation should not depend on the luck of the draw when it comes to the appointment of a judge. Continue Reading Settlement Strategy Is More Important Than Litigation Strategy

When the COVID-19 pandemic took hold in March 2020, various lockdowns were ordered and Americans learned a new term—“social distancing.” Working remotely using videoconferencing platforms became commonplace and, in most cases, productivity did not suffer. Unfortunately, the construction industry could not employ the remote workplace, and projects continued to require hands-on personnel who could not socially distance as a practical matter and were at greater risk for contracting COVID. Workers were fearful for their families and understandably concerned about themselves. As a result, productivity suffered and the country saw shortages of construction workers. Despite this stark reality, the federal government sought to keep its construction projects on track and routinely granted exemptions from federally imposed restrictions by determining that projects were “mission critical.” Continue Reading Federal Construction Contractors Are Faced With the Double Whammy of the Pandemic and Price Escalation: What Can Be Done?

The GAO’s recent decision in K&K Industries, Inc. reinforces for disappointed offerors that once the government unequivocally states that a debriefing has concluded, the clock has started ticking on the time to file a protest. Notably, this can be true even if the parties continue discussing the offeror’s proposal.

The Background

On September 28, 2021, the U.S. Army Corps of Engineers (USACE) notified K&K Industries, Inc. (K&K) that it had awarded Blinderman Construction, Co. (Blinderman) a contract involving the design and renovation of a historic barracks building in Fort Riley, Kansas. This notice also informed K&K that the company had a right to request a debriefing. K&K timely requested the debriefing and asked that the debriefing include a redacted copy of the Source Selection Decision Document (SSDD). Continue Reading When Exactly Did My Debriefing End?

Last week, the Biden administration updated its position regarding enforcement of the COVID-19 vaccine mandate for federal contractors in response to the nationwide preliminary injunction issued by a U.S. District Court judge in Georgia. In our previous post on this topic, we questioned whether the administration would still attempt to enforce the vaccine mandate for contracts that already include the clauses mandating vaccinations. Thankfully, the administration resolved much of that uncertainty in its updated position by confirming that it will generally not enforce the mandate. However, it stopped short of a blanket policy of non-enforcement. Continue Reading Biden Administration Updates Contractor Vaccine Mandate Guidance in Response to Nationwide Preliminary Injunction

The SBA is proposing two new methods for small businesses to obtain the often elusive qualifying past performance commonly required when competing for federal contracts. The proposed rules implement new provisions of the National Defense Authorization Act (NDAA) Fiscal Year 2021 (FY 2021), which will permit a small business government contractor to use the past performance of a joint venture, of which it was a member, “provided that the small business worked on the joint venture’s contract or contracts.” The proposed rules will also authorize small businesses to use past performance as a first-tier subcontractor. Continue Reading Please Pass the Past Performance Rating: SBA’s Proposed New Rules to Help Small Businesses Become More Competitive

On December 7, 2021, a federal judge issued a nationwide injunction that, for the time being, halts the COVID-19 vaccine mandate for federal contractors. The injunction is a preliminary injunction, the purpose of which is to preserve the status quo until a final judgment can be reached. This means the injunction will stay in place until the court reaches a final ruling on the merits of the case. Continue Reading Vaccine Mandate for Federal Contractors on Hold

On November 4, 2021, the Department of Defense (DOD) announced it is revamping the Cybersecurity Maturity Model Certification program. The changes are intended to make the program more streamlined and flexible, which, in turn, will make it easier (and cheaper) for contractors to implement. Details of the revised program are limited, but some of the highlights include:

  • Fewer Levels: CMMC 2.0 will have only three levels of certification rather than five, and they will align more closely with existing cybersecurity standards. For example, Level 2 will align with NIST SP 800-171, the standard that applies when contractors handle controlled unclassified information.

Continue Reading DOD Announces CMMC 2.0; Cancels Rollout of CMMC 1.0

In our last post, we detailed President Biden’s Executive Order 14042 regarding vaccination requirements for government contractors. The order made clear that a new clause requiring vaccinations would be included in new contracts in the near future, but questions remained about which employees would ultimately be subject to the requirements. On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued guidance that answered many of those questions. Continue Reading New Guidance on the Vaccination Mandate for Federal Contractors

The Armed Services Board of Contract Appeals’ (ASBCA) recent decision in Odyssey International, Inc. provides contractors with yet another cautionary tale when executing modifications with the government: make sure you fully understand the consequences of what you are gaining (and possibly losing).

In Odyssey, the U.S. Army Corps of Engineers (the government) contracted for the construction of a building at an Army depot in Pennsylvania. A micropile system, which involves drilling small-diameter holes into bedrock and inserting grout into any voids before inserting a metal pole and casing, was to be used in the building’s foundation. Although potential offerors were to assume the need for 60 micropiles, the solicitation also noted that the contractor bore responsibility for the micropile foundation system’s design. After a series of discussions on the topic, the government informed Odyssey to submit its micropile design independent of the bidding criteria. As a result, Odyssey’s design, which the government approved, proposed using 80 micropiles instead of 60. Continue Reading Bilateral Modifications: Read, Re-Read, and Read Again Before You Sign