DoD Releases Draft Section 3610 Reimbursement Guidance

Last week, DoD released a draft of its much-anticipated guidance implementing Section 3610 of the CARES Act, which authorizes the government to reimburse qualifying contractors for the costs of providing certain paid leave to employees as a result of the COVID-19 pandemic.  DoD previously published a collection of memoranda, Q&A documents, and a class deviation addressing Section 3610 reimbursement, but the new draft guidance (“Guidance”), which includes a “reimbursement checklist” and accompanying instructions, provides significantly more detail regarding the process for requesting and substantiating claims for reimbursement under the statute.

A number of open questions remain pending the issuance of final guidance, as discussed below, but the contours of DoD’s Section 3610 process are becoming increasingly clear.  Contractors interested in pursuing recovery under the statute should start preparing now to satisfy these emerging rules and requirements.

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FEMA Continues to Push Defense Production Act Authority On Several Fronts

Two notices recently published in the Federal Register indicate the Federal Emergency Management Agency (“FEMA”) intends to exercise Defense Production Act (“DPA”) authority in novel ways during the current coronavirus pandemic.

On May 12th, FEMA announced that it plans to invoke DPA authority which permits the President to consult with representatives of industry, business, financing, agriculture, labor, and other interests in order to enter into voluntary agreements or plans of action to help provide for the national defense.

The following day, FEMA published the Emergency Management Priorities and Allocations System (“EMPAS”) regulations governing FEMA’s use of DPA priorities and allocations authority — which, as we’ve previously covered on several occasions, permit the executive branch to require private companies to prioritize its orders and allocate resources in the private sector as needed to promote the national defense.  FEMA included a new concept of third-party rated orders in its version of DPA regulations. Continue Reading

Expect the Unexpected: How to Navigate State and Local Bid Protests

Many government contractors are familiar with the well-established processes of federal bid protests.  Less known is the dizzying variety of procedures applicable to state and local bid protests, and a rule that is well-established in one jurisdiction may be nonexistent in another.  Although there are some unifying themes that pervade protest practice everywhere — namely, fairness and rationality — it is important to understand how those themes are understood and applied in the relevant jurisdiction.

In a continuation of our blog post last year, we take an in-depth look at state and local bid protests in this new Briefing Paper.

CISA Information and Communications Technology Supply Chain Risk Management Task Force Releases New Guidance on Security Resiliency

On May 5, 2020 the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency’s (“CISA”) Information and Communications Technology (“ICT”) Supply Chain Risk Management (“SCRM”) Task Force (the “Task Force”) released a six-step guide for organizations to start implementing organizational SCRM practices to improve their overall security resilience.  The Task Force also released a revised fact sheet to further raise awareness about ICT supply chain risk.

As we discussed in a prior blog post on the Task Force’s efforts, the Task Force was established in 2018 with representatives from 17 different defense and civilian agencies, as well as industry representatives across the information technology and communications sectors.  The Task Force has been focused on assessing and protecting security vulnerabilities in government supply chains.  Since its founding, the Task Force has inventoried existing SCRM efforts across the government and industry, including some of the practices reflected in the guide. Continue Reading

Emergency Contracting During COVID-19: A Guide to FAR Part 18

The government’s response to the coronavirus pandemic implicates a host of authorities of interest to contractors, from those under the Stafford Act to its recently invoked Defense Production Act powers.  The government has another critical, and perhaps under-examined, set of tools at its disposal to meet the demands of the pandemic:  FAR Part 18, “Emergency Acquisitions,” catalogues authorities that give the government greater ability to acquire goods in a streamlined, accelerated manner.  Contractors should take note of FAR Part 18 given the government’s urgent needs for COVID-19 related supplies and services.

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Other Transaction Authorities Given Greater Flexibility to Foster Innovation in Coronavirus Response

Defense Department leaders and agencies have been granted much-needed flexibility to respond to the coronavirus pandemic.  Last week, Under Secretary of Defense for Acquisition & Sustainment Ellen Lord delegated approval authority for Other Transaction Agreements (“OTs”) related to the coronavirus response, consistent with Section 13006 of the CARES Act. Continue Reading

Have No Fear: Fourth Circuit Confirms Contractors Shouldn’t Fear Privilege Waivers When Making Mandatory Disclosures

The Fourth Circuit recently rejected a trial court’s ruling that a contractor’s mandatory disclosure submission waived its attorney-client privilege over the underlying internal investigation. In re Fluor Intercontinental, Inc., No. 20-1241 (Mar. 25, 2020) (per curiam). The court granted Fluor’s mandamus petition and directed the district court to vacate its orders requiring Fluor to produce privileged information from its internal investigation relating to the subject matter of four statements in its mandatory disclosure submission. Id. at 1. In doing so, the Fourth Circuit confirmed that “Government contractors should not fear waiving attorney-client privilege” when making mandatory disclosures. It also curtailed an outlier ruling and provided reassurances to other corporations and individuals who routinely make similar disclosures and fact proffers to the government. Continue Reading

CARES Act Includes New Route to Recovery for Contractors Affected By COVID-19

Contractors sidelined by facility closures and stay-at-home orders in the wake of the COVID-19 pandemic may now have a new pathway to recovering idle labor costs.  The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act includes a provision, Section 3610, that provides a new form of relief for contractors facing delays and additional costs as a result of employees being unable to work due to quarantine restrictions.

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New Paid Sick Leave Requirements Impact Government Contractors

Recent legislation significantly expanded many workers’ entitlement to paid sick leave and paid family leave.  These new benefits take effect on April 1st.  Our employment and benefits experts have described those requirements in a series of posts, including overviews here and here, and New York-specific considerations here.  Federal government contractors should pay particular attention to these new benefits and the way they interact with other paid sick leave requirements. Continue Reading

Defense Production Act Anti-Hoarding Provisions Invoked for Coronavirus

The Department of Health and Human Services published a notice on March 30, 2020 — effective March 25, 2020 — designating certain COVID-19-related personal protective equipment (“PPE”) and materials as “scarce” or “threatened” materials subject to the Defense Production Act’s (“DPA”) anti-hoarding provisions.  As a result of this notice, the DPA now prohibits the accumulation of these materials in excess of reasonable demands of business, personal, or home consumption.  The notice also results in a prohibition of the accumulation of these materials for the purpose of resale at prices in excess of the prevailing market rate.

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