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Scott A. Freling

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement advice, claims and other disputes, teaming and subcontracting, and mergers and acquisitions. He represents clients in federal and state court litigation and administrative proceedings, including bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also represents clients in obtaining and maintaining SAFETY Act liability protection for anti-terrorism technologies. Mr. Freling’s experience covers a wide variety of industries, including defense and aerospace, information technology and software, government services, life sciences, renewable energy, and private equity investment in government contractors.

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M&A and Section 889: Due Diligence and Integration Considerations

By Scott A. Freling, Susan B. Cassidy, Samantha Clark and Ryan Burnette on Posted in Commercial Items, Cybersecurity, Defense Industry, Energy, Government Contracts Regulatory Compliance, Information Technology Contracting, Supply Chain
(This article was originally published in Law360 and has been modified for this blog.) Companies in a range of industries that contract with the U.S. Government—including aerospace, defense, healthcare, technology, and energy—are actively working to assess whether or not their information technology systems comply with significant new restrictions that will take effect on August 13, … Continue Reading

Defense Contractors Say Section 3610 and Other Contractor Support Measures Require Relief

By Scott A. Freling, Michael Wagner and Peter Terenzio on Posted in CARES Act, COVID-19, Defense Industry
It goes without saying that the COVID-19 pandemic has significantly affected the Department of Defense (“DoD”) and the defense industrial base.  And while Congress has taken steps to mitigate these impacts, the sheer scale of the pandemic’s effects pose a continuing challenge to both DoD and its contractors.  Now a group of major defense contractors … Continue Reading

Targeting DoD’s Reliance on Russian Energy

By Scott A. Freling, Samantha Clark and Maria Adebayo on Posted in Defense Industry, Energy, NDAA
At the end of last month, the Department of Defense (“DoD”) issued a class deviation to implement Section 2821 of the National Defense Authorization Act for Fiscal Year 2020 (“FY20 NDAA”), which seeks to reduce dependence on Russian energy by prohibiting the acquisition of energy sourced from inside Russia for DoD’s main operating bases in … Continue Reading

DoD Releases Draft Section 3610 Reimbursement Guidance

By Michael Wagner, Scott A. Freling and Peter Terenzio on Posted in Claims and Contract Disputes, COVID-19, Defense Industry
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 … Continue Reading

A New Normal for Foreign Military Sales? Total Sales for FY 2019 Nearly Matches FY 2018

By Nooree Lee and Scott A. Freling on Posted in FMS and DCS
On October 15, 2019, the Defense Security Cooperation Agency (DSCA) announced that foreign arm sales for Fiscal Year (FY) 2019 totaled $55.4 billion. This amount nearly matches the total from FY 2018 of $55.7 billion, continuing the significant increase in foreign arm sales under the Trump Administration and potentially signaling that the enormous 33 percent … Continue Reading

Another Executive Order on Buying American, and This One Has Teeth

By Michael Wagner, Scott A. Freling and Nooree Lee on Posted in Buy American, Procurement Policy
(This article was originally published in Law360 and has been modified for this blog.) On July 15, 2019, President Trump issued an Executive Order on Maximizing Use of American-Made Goods, Products, and Materials.  The EO directs the FAR Council to “consider” amending the Federal Acquisition Regulation’s provisions governing the implementation of the Buy American Act.  This … Continue Reading

Congress Braces for a Fight Over Executive Authority Under the Arms Export Control Act

By Nooree Lee and Scott A. Freling on Posted in FMS and DCS, Procurement Policy
On May 23, 2019, multiple news outlets reported that the White House was considering an emergency declaration to permit arms shipments to Saudi Arabia without Congressional approval.  These reports were met with sharp criticism by multiple legislators.  These recent developments shine a spotlight on the contours of the Congressional notice and approval mechanisms set forth in the … Continue Reading

Proposed Rule Offers Foreign Military Sales as a Potential Pathway to Commerciality

By Nooree Lee and Scott A. Freling on Posted in FMS and DCS, NDAA, Procurement Policy
Earlier this month, the FAR Council issued a proposed rule to expand the definition of “commercial item” under the Federal Acquisition Regulation (FAR) to include certain items sold in substantial quantities to foreign governments.  This new rule implements section 847 of the National Defense Authorization Act (NDAA) for FY 2018 (Pub. L. 115-91), and has the … Continue Reading

Inspector General Audit of the FMS Program Underway

By Nooree Lee and Scott A. Freling on Posted in FMS and DCS, Procurement Policy
Last month, the Department of Defense Inspector General announced that it was undertaking an audit of the Foreign Military Sales (FMS) Agreement Development Process.  The audit will assess how the Defense Security Cooperation Agency (DSCA), Military Departments, and other organizations coordinate foreign government requirements for defense articles and services and whether DoD maximizes the results … Continue Reading

Domestic Sourcing Requirement Doesn’t Fit DOD’s Gloves

By Scott A. Freling on Posted in Bid Protests, Buy American, Country of Origin, Defense Industry, Domestic Preferences, Government Contracts Regulatory Compliance
(This article was originally published in Law360 and has been modified for this blog.) The Government Accountability Office (GAO) recently issued a bid protest decision regarding the application of the Berry Amendment’s domestic sourcing requirement to a U.S. Department of Defense (DOD) solicitation for leather combat gloves with touchscreen capability.  In that decision, the GAO … Continue Reading

Signs of Progress with the Limitations on Subcontracting, but Outstanding Questions Remain

By Scott A. Freling, Tyler Evans and Brooke Stanley on Posted in Government Contracts Regulatory Compliance, Procurement Policy, Small Business, Subcontracting
A recently proposed rule would update the Federal Acquisition Regulation (“FAR”) to incorporate statutory changes to limitations on subcontracting that have been in effect since 2013. The U.S. Small Business Administration (“SBA”) has long since revised its own regulations to implement these changes, but some contracting officers have been reluctant to follow these changes in … Continue Reading

More Novation Complexity In Gov’t Contracts M&A?

By Scott A. Freling, Alexander Hastings and Andrew Guy on Posted in Defense Industry, Government Contracts Regulatory Compliance, Multiple Award Schedule Contracting, Procurement Reform, Transactional Support and M&A Diligence
(This article was originally published in Law360 and has been modified for this blog.) Government contractors undergoing an asset transaction know all too well the peculiarity and uncertainty associated with the transfer of a U.S. government contract through the required novation process. In two recent decisions, the Government Accountability Office considered the impact of such … Continue Reading

Takeaways from DoD’s Proposed Changes to Certain Sourcing Restrictions

By Scott A. Freling on Posted in Buy American, Domestic Preferences, Procurement Policy, Procurement Reform
Pursuant to Sections 817 and 881(b) of the FY 2017 National Defense Authorization Act (“NDAA”), the Department of Defense (“DoD”) recently issued a proposed rule to amend certain sourcing restrictions found in DFARS subpart 225.70 and related clauses.  Specifically the proposed rule would amend the DFARS to: extend the Berry Amendment’s domestic sourcing restrictions to … Continue Reading

Pragmatism Wins the Day in GAO Buy American Protest

By Scott A. Freling on Posted in Bid Protests, Buy American, Construction Contracting, Domestic Preferences, Trade Agreements Act
Last month, the Government Accountability Office (GAO) issued a bid protest decision regarding the application of Buy American Act (BAA) requirements to a solicitation for construction.  In this decision, GAO rejected the agency’s determination that an offeror’s bid was nonresponsive because the offeror failed to provide certain required information for the evaluation of a potential BAA exception.  A summary … Continue Reading

4 Considerations For Gov’t Contractor Carveout Deals

By Scott A. Freling and Alexander Hastings on Posted in Government Contracts Regulatory Compliance, Transactional Support and M&A Diligence
[This article was originally published in Law360.] A steady flow of M&A activity in the government contracts industry continues. Indeed, last year we saw over 100 publicly reported deals involving government contractors, and this pace has continued into 2018. This M&A activity has taken a variety of forms, including a number of “carveout” transactions, where … Continue Reading

The Future of Novations in Contractor M&A

By Scott A. Freling and Nooree Lee on Posted in Transactional Support and M&A Diligence
In corporate transactions involving government contracts, “novation” has become a dreaded process.  Many buyers and sellers express uneasiness and concern about having to subject their deal to the U.S. Government’s discretionary framework for accepting the transfer of a government contract from one party to another.  In particular, they fear the uncertain timeline and arcane requirements … Continue Reading

Key Takeaways From The “New York Buy American Act” And Beyond

By Scott A. Freling and Sandy Hoe on Posted in Country of Origin, State and Local Procurements
[This article was originally published in Law360 and has been modified for the blog.] This was not an April Fools’ Day joke: The New York Buy American Act (“NY BAA”) went into effect on April 1, 2018. Signed by Governor Andrew M. Cuomo in December 2017 and championed by state legislators on both sides of … Continue Reading

Fraudulent SAM Accounts Lead to More Complicated SAM Registration Requirements

By Scott A. Freling and Alexander Hastings on Posted in Commercial Items, Government Contracts Regulatory Compliance, Uncategorized
GSA recently announced it is supporting an Inspector General investigation into alleged, third-party fraudulent activity in the System for Award Management (“SAM”). The GSA announcement suggests that fraudulent SAM accounts may have been used to divert certain federal payments to unauthorized bank accounts. The announcement does not elaborate on the scope of potentially impacted entities … Continue Reading

In Sexual Orientation Nondiscrimination Claims, “EEO Is the Law,” and Not Just for Government Contractors

By Jeff Bozman and Scott A. Freling on Posted in Employment, Government Contracts Regulatory Compliance
A few years ago, we reported on regulations governing federal contractors’ nondiscrimination obligations with respect to LGBT employees.  The Trump Administration has taken steps to roll back many Obama-era efforts, although the Executive Order and rules establishing LGBT-related protections for employees of federal contractors remain in force, at least for now.  The Second Circuit recently … Continue Reading

Key Takeaways from Trump Administration Memo on Buy American Laws

By Scott A. Freling, Frederic Levy and Sandy Hoe on Posted in Country of Origin, Government Contracts Regulatory Compliance, Procurement Policy
[This article also was published in Law360.] On June 30, 2017, Commerce Secretary Ross and OMB Director Mulvaney issued a Memorandum to Federal agencies regarding the “assessment and enforcement of domestic preferences in accordance with Buy American Laws,” which includes the Buy American Act (“BAA”). Although the Memorandum purports to provide guidance to help agencies … Continue Reading

Key Takeaways From President Trump’s “Buy American” Executive Order

By Frederic Levy, Sandy Hoe and Scott A. Freling on Posted in Country of Origin, Government Contracts Regulatory Compliance, Procurement Policy
[This article was originally published in Law360.] President Trump took a significant step this week towards implementing his often touted objective of protecting U.S. manufacturers and workers by signing the “Presidential Executive Order on Buy American and Hire American” (the “EO”) on April 18, 2017.  In addition to addressing reforms to the H1-B visa program … Continue Reading

Double Your Pleasure: GAO’s Annual Protest Report Shows that Sustain Rate Has Almost Doubled, But the Effectiveness Rate Remained Flat

By Scott A. Freling on Posted in Bid Protests
In mid-December, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2016.  The report reveals, among other things, that GAO’s protest sustain rate for this past fiscal year (“FY”) was 22.56%, almost double that of FY 2015.  While this is perhaps the most notable data point, the report once again provides a … Continue Reading

Changes to Small Business Subcontracting On the Horizon

By Scott A. Freling and Alexander Hastings on Posted in Procurement Policy, Small Business
Last week, the Federal Acquisition Regulation (“FAR”) Council issued a Final Rule to implement regulations adopted by the Small Business Administration in 2013.  The Final Rule significantly amends FAR Parts 19 and 52 by imposing additional small business-related obligations on prime contractors and clarifying the consequences of failing to satisfy those obligations.  The Final Rule … Continue Reading

Post Hoc Proposal Reevaluation Exacerbates Error in Award Decision

By Scott A. Freling on Posted in Bid Protests
Last Friday, the Government Accountability Office (“GAO”) released a public version of Delfasco, LLC, B-409514.3 (March 2, 2015), a decision noteworthy because of how the GAO dealt with an agency’s post hoc reevaluation of proposals.  The protestor, Delfasco, LLC (“Delfasco”), had an incumbent contract to sell dummy practice bombs to the U.S. Army, and it … Continue Reading
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