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

Government contractors and subcontractors will need to learn—quickly–how to navigate new COVID-19 requirements. On September 9, 2021, President Biden issued an executive order (the order) imposing COVID-19 vaccine and testing requirements on government contractors and subcontractors. The new requirements will start appearing in contracts in a matter of weeks. Below are the key points that federal contractors need to know.

How will the vaccine requirement be implemented?

The order directs all executive departments and agencies to begin including a new and yet unwritten clause in solicitations, contracts, and contract-like instruments. The clause must state that the contractor will comply with all guidance issued by the Safer Federal Workforce Task Force (Task Force) that pertains to a contractor or subcontractor’s workplace locations.

Continue Reading New COVID-19 Vaccination Requirements for Government Contractors

In a typical bid protest, the protester argues that its proposal should have been evaluated more favorably or that its competitors should have received a less favorable evaluation. However, in a recent bid protest, the protester turned those arguments on their head, instead arguing that its proposal was so poor that the government owed the protester an opportunity to remedy its shortcomings.

The solicitation called for awards to be made on the basis of a best-value tradeoff. With regard to price, the solicitation called for consideration of both price realism (whether a price is too low) and price reasonableness (whether a price is too high). After proposals were submitted, the Army conducted multiple rounds of discussions with offerors to provide them an opportunity to clarify and improve the proposals. During those discussions, the Army issued more than 100 evaluation notices (EN) to the protester, DynCorp, noting issues with its proposal, including 39 related to price. Ultimately, DynCorp was not awarded a contract because its proposal received lower technical ratings than its competitors and its prices were the highest of all offerors. Continue Reading Recent Federal Circuit Decision Highlights the Limitations of Discussions

The SBA made numerous changes to its regulations in the past year, but the FAR Council has largely failed to keep pace. Then, earlier this month, the FAR Council published three final rules to implement long-awaited changes to the FAR’s small business contracting requirements. While the changes concern small business contracting requirements, they will impact business contractors of all sizes. For example, one of the rules makes noteworthy changes to the FAR’s Limitations on Subcontracting, resulting in a more friendly regulatory landscape for small business prime contractors. Another of the rules provides clarity for large business contractors who seek to demonstrate “good faith efforts” to comply with a small business subcontracting plan. The new changes bring the FAR’s small business contracting requirements in line with the SBA’s regulations and will be incorporated into new contracts beginning on September 10, 2021. Continue Reading What FAR Council Updates to Small Business Contracting Requirements Mean for Large and Small Business Contractors

Elected officials in Washington, DC appear to have identified one topic that both parties can agree on—strengthening domestic content requirements on federal projects. In February 2021, we alerted contractors not only to Buy American Act changes previously implemented by the Trump administration but also to the potential changes addressed in a Biden administration executive order. Holding true to its word, the Biden administration recently issued a proposed rule that would make additional changes to an already complicated legal framework. Below are the key takeaways for contractors.

Continue Reading Contractor’s Guide to Biden’s Buy American Act Changes: Buy More (and More and More) American

Government contractors are facing a significant compliance burden thanks to three new FAR provisions that impose restrictions on contractors who supply or use Chinese telecommunications equipment or services.

Generally speaking, the new FAR provisions, 52.204-24, 52.204-25, and 52.204-26, are designed to ensure that contractors do not supply any covered equipment or services to the government (the “supply restriction”) or use any covered equipment or services in their business (the “use restriction”). Covered equipment or services include any telecommunications equipment or services from companies linked to the Chinese government, such as Huawei (the world’s largest telecom manufacturing company) and ZTE, as well as any subsidiaries or affiliates of such companies. Continue Reading Complying with the Government’s Restrictions on Foreign Telecommunications Equipment

The Buy American Act includes a preference for “domestic end products” and “domestic construction materials” on federal projects absent a waiver. Prior to recent revisions, domestic end products and domestic construction materials were those that were: 1) manufactured in the U.S.; and 2) made up of at least 50% domestic components or, alternatively, were Commercially Available Off-The-Shelf (COTS) items.

The FAR Council recently issued a final rule that makes substantial changes to the FAR’s Buy American requirements (FAR 52.225-1, 52.225-3, 52.225-9 and 52.225-11) in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” The revised FAR clauses became effective January 21, 2021, and are to be inserted in all new contracts beginning February 22, 2021. The final rule made three key changes to the FAR’s Buy American requirements: Continue Reading Important Changes to the Buy American Act – Key Updates for Contractors

The Biden administration seems to be doubling down on the application and enforcement of the Buy American Act with the president’s January 25 executive order. While former President Trump’s order focused on increasing domestic material percentages, President Biden’s order focuses on oversight, enforcement, and access to information.

The first part of President Biden’s order establishes a Made in America Office (MAO) to increase oversight of Buy America and Buy American waivers. Buy America gives preference to the use of domestic materials on federal contracts that relate to transportation, and Buy American generally requires the use of domestic construction materials on any federal construction project. MAO will oversee both Buy America and Buy American and will be responsible for several new changes, including: Continue Reading Biden’s Buy American: More Oversight and More Information

Late last year, the U.S. Small Business Administration (SBA) issued a lengthy final rule that made changes to various SBA regulations. While the SBA highlighted its changes to the Mentor-Protégé program, the rule will have wide-ranging impacts on small business contracting, including the treatment of a small business offeror’s capabilities, past performance, and experience.

Prior to the issuance of the SBA’s new rule, FAR 15.305(a)(2)(iii) stated that an agency “should” consider the past performance of key subcontractors, but the use of “should” left agencies with broad discretion to consider (or not consider) subcontractor past performance. In many cases, agencies still issued solicitations that explicitly precluded consideration of subcontractor experience. Such limitations prevented small business offerors from using key subcontractors or a teaming arrangement to establish the required experience and past performance. Continue Reading SBA Changes Ensure Small Businesses Can Utilize Teaming Arrangements and Subcontractor Experience

The Coronavirus Aid, Relief, and Economic Surety (CARES) Act was enacted on March 27 to provide relief from the effects of the COVID-19 pandemic. Section 3610 of the CARES Act authorizes agencies to reimburse federal contractors for leave provided to employees who cannot work as a result of the COVID-19 public health emergency. As we explained in a previous blog post, there are many questions as to how Section 3610 will be implemented. Those questions are being answered on a rolling basis as agencies continue to release information. Since our last post, the Department of Defense (DOD) issued a class deviation as well as a FAQ document.

Continue Reading DOD Releases Class Deviation and Related Guidance Implementing Section 3610 of the CARES Act