On September 9, the Biden Administration released a number of new details for its Path out of the Pandemic that will impact U.S. Government contractors and a number of other individuals and entities. In addition to requiring most executive agency employees to receive COVID-19 vaccines, the Administration plans to mandate that executive agency contractors and subcontractors, with some exceptions, impose similar requirements on their employees pursuant to an executive order that will fully go into effect on October 15, 2021. The overall impact of the executive order will not be clear until additional details are released in the coming weeks, but government contractors should begin considering the implications of the new requirements and take steps to ensure timely compliance.
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President Biden Orders Tightening of Made in America Laws: What Contractors Need to Know
On January 25, 2021, President Biden issued a much-anticipated Executive Order announcing plans to strengthen the U.S. Government’s preference for domestically-sourced goods and services, including a proposal to tighten longstanding exceptions to domestic preference requirements.
Executive Order 14005 on Ensuring the Future Is Made in All of America by All of America’s Workers (“EO”) aims
With Potential New TINA Audits on the Horizon, the ASBCA Provides a Helpful Primer on Defending Against Defective Pricing Claims
Late last year, a spokesman for the Department of Defense announced without fanfare that the agency would increase audits of certified cost or pricing data under the Truth in Negotiations Act (“TINA”). While the full effect of that enhanced focus on TINA compliance remains to be seen, a recent decision by the Armed Services Board of Contract Appeals (“ASBCA”) provides helpful guidance for navigating upcoming TINA audits and defending against defective pricing claims, particularly in situations involving an on-going program where documents contain both facts and judgmental estimates.
Continue Reading With Potential New TINA Audits on the Horizon, the ASBCA Provides a Helpful Primer on Defending Against Defective Pricing Claims
The Defense Production Act and the Coronavirus Executive Order: Key Considerations
Following up on our post earlier this week giving a general overview of the Defense Production Act of 1950 (“DPA”), 50 U.S.C. §§4501 et seq., this post comments on President Trump’s March 18, 2020 Executive Order on Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of COVID-19 (the “COVID-19 E.O.”) and provides some key considerations that companies should keep in mind if they are concerned about receiving prioritized or rated contracts or allocation orders or directives under the DPA.
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State of Emergency: COVID-19, the Stafford Act, and What It All Means for Contractors
On March 13, the President declared a national emergency in response to the COVID-19 pandemic. Doing so activated the authorities available to the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207 (the “Stafford Act”) to provide federal assistance to state and local governments responding to the emergency, including financial assistance.
The federal assistance is coordinated and provided through the Federal Emergency Management Agency (“FEMA”) under the National Response Framework. Although the Stafford Act generally does not make funding directly available to private businesses, a large portion of the nearly $50 billion that the President said will be available to FEMA may be used to procure goods and services from contractors assisting the relief effort.
Trump Administration Renews Focus on Anti-Human Trafficking Efforts
The Trump Administration has declared this month National Slavery and Human Trafficking Prevention Month, calling on industry associations, law enforcement, private businesses, and others to work toward ending modern slavery and human trafficking. This proclamation follows the Administration’s efforts to combat human trafficking, which we have previously discussed here, and comes on the heels of an OMB memorandum released last fall aimed at “enhanc[ing] the effectiveness of anti-trafficking requirements in Federal acquisition while helping contractors manage and reduce the burden associated with meeting these responsibilities.”
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Suspension & Debarment Update: Five Takeaways from the ISDC’s Annual Report
The government has released its long-awaited annual report on federal suspension and debarment activities, and the data reflect a number of trends and developments that should be of keen interest to federal contractors and grantees. The report, which is published by the Interagency Suspension and Debarment Committee (“ISDC”), shows that suspension and debarment remain potent tools that are used frequently across the executive branch, even if the total number of exclusion actions dipped slightly from the previous year. But more importantly, the report also demonstrates that federal agencies are adopting increasingly sophisticated approaches to managing suspension and debarment actions, a trend that presents both opportunities and potential pitfalls for the contracting community. Below we highlight the five biggest takeaways from this year’s ISDC report.
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Suspension & Debarment Update: SBA to Sharpen Suspension & Debarment Procedures
Changes are coming to the suspension and debarment practices of the Small Business Administration (SBA), and contractors should ready themselves for an uptick in suspension and debarment activity as a result. That’s the takeaway from a new audit report released last week by the SBA’s Office of the Inspector General (OIG) criticizing aspects of the agency’s suspension and debarment practices. Although the SBA’s suspending and debarring officials (SDOs) for Financial Assistance Programs (FAP) and All Other Programs (AOP)[1] disputed certain OIG findings about existing practices, the agency was largely receptive to the OIG’s recommendations. As a result, it appears that the SBA soon will be adopting a series of changes aimed at formalizing its suspension and debarment policies, expediting its processing of debarment referrals, and devoting additional resources to suspension and debarment actions – all of which is likely to drive an increase in exclusion actions.
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Suspension & Debarment Update: Department of Labor Announces New Pilot Program
Keen observers of federal suspension and debarment practice have noticed a recent change at the Department of Labor (DOL): After years of inactivity, DOL’s discretionary suspension and debarment program suddenly came to life in 2017 and has been issuing suspensions and debarments at a steady clip ever since. [1] Now, according to a recent announcement, DOL is poised to turn up its suspension and debarment activity yet another notch. Starting this month and continuing through April 2020, DOL will be instituting a pilot program aimed at promoting and expediting its suspension and debarment activity, with the stated goal of “reduc[ing] the processing time on discretionary suspension and debarment actions from months to days.”
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Surviving the Shutdown: Seven Things Contractors Should Consider If a Cost Overrun Is on the Horizon
The U.S. Government shutdown is now the longest in U.S. history and is starting to have serious implications for Government contractors. One of many key concerns arises when contractors approach their contract funding ceiling — can they continue to work, and what happens if there is a cost overrun?[1]
The answers are often complicated for both contractors and agency officials, and depend on the terms of the contract and the statutory basis for the program. Contractors facing this situation should keep seven points in mind.