On November 4, 2022, the U.S. Department of Transportation (“DOT”) published two proposed waiver notices with request for comments related to the Bipartisan Infrastructure Law’s Build America, Buy America Act (“BABA”). Both notices stated that DOT’s existing temporary waiver for construction materials would not be extended past its expiration on November 10, 2022. One notice proposes a public interest waiver for certain narrow categories of contracts and solicitations to continue transitioning the construction materials standard. The other notice proposes a public interest waiver for de minimis costs, small grants, and minor components. Comments are due November 20, 2022 for both notices.
September 2022 Developments Under President Biden’s Cybersecurity Executive Order
By: Robert Huffman, Susan Cassidy, Michael Wagner, Ryan Burnette, and Emma Merrill
This is the seventeenth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”). The first blog summarized the Cyber EO’s key provisions and timelines, and
August 2022 Developments Under President Biden’s Cybersecurity Executive Order
This is the sixteenth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”). The first blog summarized the Cyber EO’s key provisions and timelines, and the subsequent blogs described the actions taken by various Government agencies to implement the cyber EO from June 2021 through July 2022. This blog describes key actions taken to implement the Cyber EO during August 2022.
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July 2022 Developments under President Biden’s Cybersecurity Executive Order
This is the fifteenth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”). The first blog summarized the Cyber EO’s key provisions and timelines, and the subsequent blogs described the actions taken by various Government agencies to implement the Cyber EO from June 2021 through June 2022. This blog describes key actions taken to implement the Cyber EO during July 2022.
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GSA Issues Request for Information on Photovoltaic Systems
Last December, President Biden issued Executive Order 14057, “Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability,” which directed the government to adopt cleaner and more sustainable procurement practices, with the ultimate objective of net-zero emissions by 2050.
Pursuant to that directive, GSA has issued a new RFI seeking information regarding domestically manufactured solar photovoltaic (PV) panels and systems, as well as PV system installation. GSA intends to use the information to develop a solar PV procurement strategy and a procurement standard for use in future solicitations — including solicitations for Power Purchase Agreements (PPA), Energy Savings Performance Contracts (ESPCs), Utility Energy Service Contracts (UESCs), and other vehicles.
Given the RFI’s emphasis on sourcing and country of origin, it is possible that any new procurement standards for civilian contracting would parallel existing regulations at DFARS 252.225-7017, which generally require DoD contractors to make use of PV devices originating from the United States or certain designated or qualifying countries. Of course, the ultimate impact of the RFI on future procurement strategy remains to be seen. What is certain, however, is that the Administration is committed to clean technology procurements and that domestic preferences remain an overriding and central concern.
Comments in response to the RFI are due by November 18, 2022. More detail about specific topics covered in the RFI is below.
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OMB and Safer Federal Workforce Task Force Preview Forthcoming Guidance on Federal Contractor Vaccine Mandate
UPDATED AS OF 10/26/2022:
Changing course after its August 31 announcement that it would not enforce the federal government contractor vaccination mandate absent further written notice, on October 14, 2022, OMB and the Task Force published an update stating that they plan to issue at least three new guidance documents with an eye toward potentially resuming enforcement of the mandate:
- First, OMB plans to notify Federal agencies about compliance with applicable injunctions and whether contract clauses implementing the mandate should be included in new solicitations and contracts.
- Second, the Task Force plans to update its November 2021 workplace safety protocols guidance related to the mandate. The updated guidance will provide a timeline for any implementation long enough to ensure that covered contractors can come into compliance as needed.
- Third, OMB will review the safety protocols guidance and make a determination on whether it promotes economy and efficiency in government contracting. If OMB makes such a determination, it will provide additional guidance to agencies on timing and considerations for providing written notice to contractors regarding enforcement, except as barred by any injunction.
Biden Administration Announces Priorities for the Implementation of the CHIPS Act of 2022
On August 25, 2022, President Biden announced a new Executive Order (“EO”) addressing the Implementation of the CHIPS Act of 2022 (“CHIPS Act”). The CHIPS Act was signed by President Biden on August 9, 2022, and, among other things, authorizes $39 billion in funding for new projects to establish semiconductor production facilities within the United States. The new EO identifies the Administration’s implementation priorities for this CHIPS Act funding and creates the CHIPS Implementation Steering Council to aid with the rollout of administrative guidance. In connection with the EO, the Department of Commerce launched CHIPS.gov, which is intended to be a centralized resource for potential applicants of CHIPS funding. The EO and new website reflect the Administration’s intent to swiftly implement the CHIPS Act and increase the domestic production of semiconductors.
DOT Seeks Additional Stakeholder Input on Build America, Buy America Implementation
On July 28, 2022, the United States Department of Transportation (“DOT”) published a Request for Information (“RFI”) on the implementation of the Infrastructure Investment and Jobs Act’s Build America, Buy America Act (“BABA”). As discussed in our previous post, BABA expanded Buy America preferences to cover all infrastructure projects and sets new domestic content standards for federal financial assistance programs. The RFI focuses specifically on implementing these domestic content standards for construction materials, which were not subject to the Buy America regime prior to BABA. Given the wide range of products that might conceivably constitute a “construction material,” industry participants would be wise to closely monitor both the RFI and DOT’s implementation progress and to take steps to ensure that policymakers understand their views on the subject.
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June 2022 Developments Under President Biden’s Cybersecurity Executive Order
This is the fourteenth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”). The first blog summarized the Cyber EO’s key provisions and timelines, and the subsequent blogs described the actions taken by various Government agencies to implement the Cyber EO from June 2021 through May 2022. This blog describes key actions taken to implement the Cyber EO during June 2022.
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Department of Defense Debarment Enjoined Due to Procedural Missteps
The Eastern District of New York has enjoined a New York contractor’s federal debarment, in a rebuke of agency debarment actions that fail to honor contractors’ procedural rights. On July 8, 2022, part supplier Precision Metals Corporation (“Precision”) was granted a Temporary Restraining Order (“TRO”) vacating and setting aside a Defense Logistics Agency (“DLA”) debarment and enjoining debarment while court proceedings are pending. The decision, which emphasizes two procedural violations, serves as a reminder that an agency’s authority to debar contractors is not unlimited, and that it must strictly adhere to the rights granted contractors before taking action. Each procedural violation, and its practical implications, is discussed below.
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