As we have previously covered on this blog, challenges to the terms of a solicitation typically must be raised in a bid protest brought prior to proposal submission. The Government Accountability Office recently sustained such a pre-award protest in Selex ES, Inc., B-420799 (Sept. 6, 2022).
Continue Reading GAO Sustains Pre-Award Protest and Finds Solicitation Terms to Be Ambiguous
As GSA Multiple Award Schedule contractors know all too well, Schedule contracting involves a complex web of customer-tracking, reporting, and price-adjustment requirements. Those of us who navigate these often byzantine rules understand why many in the industry have called for the adoption of an alternative approach to verifying price reasonableness.
For the last several years, GSA has been piloting just such an alternative: the Transactional Data Reporting (“TDR”) program, through which the government collects transaction-level data on products and services purchased through the Schedule to make data-driven decisions that save taxpayer dollars. GSA has been running a TDR pilot program for several years to test the potential for a new regulatory regime, though the program sometimes has been the source of criticism and controversy. Now that controversy has heightened further: GSA’s Office of Inspector General published an audit report on June 24, 2021 that is sharply critical of the program, only to see GSA’s Federal Acquisition Service (“FAS”) Commissioner publicly reject the report’s conclusions and defend TDR’s effectiveness.
Time will tell whether the TDR rule becomes the new standard for GSA Schedule contracting. But the latest round of controversy suggests that the current maze of requirements are not going away any time soon.
On April 27, 2021, President Biden signed an Executive Order entitled “Increasing the Minimum Wage for Federal Contractors” that will raise the hourly minimum wage for federal contractors to $15.00 effective January 30, 2022. This Executive Order builds on Executive Order 13658 (“Establishing a Minimum Wage for Contractors”), issued by President Obama in 2014, which first implemented an hourly minimum wage of $10.10 for covered federal contractors.[i]
Continue Reading Government Contractors Should Prepare Now for the $15 Per Hour Minimum Wage
Federal civilian agencies will now face new restrictions on when and how they can use Lowest Price Technically Acceptable source selection procedures. A new rule in the Federal Acquisition Regulation is the latest in a series of measures aimed at regulating the use of LPTA source selection procedures. The new rule implements an October 2019 proposed rule and takes effect on February 16, 2021.
Continue Reading New FAR Rule Continues Shake-Up of LPTA Procurements
As the recent SolarWinds Orion attack makes clear, cybersecurity will be a focus in the coming years for both governmental and non-governmental entities alike. In the federal contracting community, it has long been predicted that the government’s increased cybersecurity requirements will eventually lead to a corresponding increase in False Claims Act (FCA) litigation involving cybersecurity compliance. This prediction may soon be proven true, as a December 2020 speech from Deputy Assistant Attorney General Michael Granston specifically identified “cybersecurity related fraud” as an “area where we could see enhanced False Claims Act activity.” This post discusses recent efforts to use the FCA to enforce cybersecurity compliance — and, based on those efforts, what government contractors may expect to see in the future.
Continue Reading Cybersecurity and Government Contracting: False Claims Act Considerations
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,
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.
Continue Reading Defense Production Act Anti-Hoarding Provisions Invoked for Coronavirus
Earlier this month, the United States Court of Appeals for the Tenth Circuit issued a decision that provided further clarity on the False Claims Act’s standard for materiality. The decision, United States ex rel. Janssen v. Lawrence Memorial Hospital, further demonstrated that materiality should be viewed through the eyes of the government customer rather than an hypothetical bystander. The decision also reconfirmed that the FCA is not a “general antifraud statute” and that contractual or regulatory language conditioning payment on compliance will not necessarily prove that noncompliance was material. Lawrence therefore serves as an important reminder to government contractors, practitioners, and other stakeholders about the significance of the materiality element in FCA litigation.
Continue Reading Tenth Circuit Provides New Material on FCA’s Materiality Standard
As previously discussed on this blog, the National Defense Authorization Act for Fiscal Year 2017 and the NDAA for Fiscal Year 2018 imposed new limitations on when the Department of Defense can use Lowest Price Technically Acceptable source selection methods. Just last month, the Department of Defense issued a final rule amending the Defense Federal Acquisition Regulation Supplement to implement those provisions. Now, in Inserso Corp., B-417791, B-417791.3, Nov. 4, 2019, GAO has weighed in on what counts as LPTA for purposes of those restrictions. This decision may indicate a potentially significant limitation on the reach of the NDAA provisions, new DFARS rule, and proposed FAR rule.
Continue Reading What Is Lowest Priced Technically Acceptable? GAO Clarifies Reach of New LPTA Restrictions
On October 2, 2019, the Department of Defense, General Services Administration, and NASA issued a proposed rule that would amend the Federal Acquisition Regulation to establish new restrictions on when and under what circumstances civilian agencies may employ Lowest Price Technically Acceptable source selection procedures. The proposed rule would implement Section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, and follows hot on the heels of DoD’s final rule making similar — but not identical — amendments to the Defense Federal Acquisition Regulation Supplement. (See our recent blog post on the new DFARS rule.)
Continue Reading Lowest Priced Technically Acceptable Procurements Are Less and Less Acceptable: Proposed FAR Rule Further Continues Shake-Up of LPTA Procurements