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.
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
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.
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.