Scott A. Freling

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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Key Takeaways from Trump Administration Memo on Buy American Laws

[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

[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

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

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

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

Revised FOIA Statute May Increase Release of Contractor Data

On June 30, 2016, President Obama signed into law the Freedom of Information Act (FOIA) Improvement Act of 2016.  The new law revises FOIA to codify the Obama Administration’s policy that executives agencies adopt a presumption that openness prevails.  Among other changes, the act also calls for the creation of a new consolidated online FOIA … Continue Reading

FTC and DoJ Question DoD’s Proposed National Security Trump Card

In an apparent reaction to recent efforts by the Department of Defense to obtain authority to approve mergers in the defense industry on national security grounds, the Department of Justice and the Federal Trade Commission today issued a Joint Statement explaining the standard of review that the antitrust agencies use when evaluating proposed transactions in … Continue Reading

D.C. Circuit Declines to Extend Davis-Bacon Act

Some Washingtonians stroll through CityCenterDC on shopping sprees at “upscale retail stores such as Hermès, Boss, and Louis Vuitton,” or meet for lunch at “high-end restaurants such as DBGB and Centrolina.”  Covington lawyers watch these scenes from our offices in the northwest corner of CityCenterDC, where we recently analyzed the D.C. Circuit’s opinion holding that … Continue Reading

Labor Department Invites Comments on Regulations Governing Paid Sick Leave

Following up on President Obama’s Labor Day release of an executive order requiring government contractors to offer paid sick leave to employees, the Labor Department issued proposed implementing regulations and invited comments by April 12.  Contractors with service contracts should consider submitting comments, especially if they already offer paid sick leave and rely on that … Continue Reading

Defense Contractors Must Share (Even More) Information About Their IR&D Projects Before DoD Will Reimburse IR&D Costs

The Department of Defense (DoD) will require contractors to disclose more information about their Independent Research & Development (IR&D) projects before the Government will reimburse IR&D costs, the Pentagon said in a proposed rule issued earlier this week.  The proposed rule, which was previewed in an August 2015 white paper, is the latest sign that … Continue Reading

Strict DoD Sourcing Requirements for PV Devices

As part of an ongoing Department of Defense (“DoD”) effort to increase its energy efficiency,  late last month the U.S. Army committed to develop its largest renewable energy project to date — a 65MW  wind and solar  project at Fort Hood.  This ambitious project will need to comply with the latest DoD rules regarding sourcing … Continue Reading

OSAI Issues Guidance on the Government Contractor Defense for Certified Anti-terror Technologies

Congress enacted the SAFETY Act in 2002 in an effort to incentivize the development of anti-terrorism technologies following the attacks of September 11, 2001.  The Act affords liability protections to sellers of Qualified Anti-Terrorism Technologies (“QATTs”) in the event of an act of terrorism where QATTs are deployed.  Although the SAFETY Act’s protections have not … Continue Reading

National Security M&A Trump Card for DoD?

The Under Secretary of Defense for Acquisition, Technology, & Logistics, Frank Kendall, made seismic remarks last week announcing that the U.S. Department of Defense (DoD) will seek independent authority from Congress to approve or disapprove M&A transactions in the defense industrial base for national security reasons, creating potential shock waves among the companies in that … Continue Reading

Lock Down of Nuclear Site:  False Alarm, with a Lesson Learned

Last week the Savannah River Site (“SRS”) in South Carolina, a large nuclear facility owned by the U.S. Department of Energy (“DOE”), went into a lock down after electronic and canine scans of a commercial delivery truck attempting to enter the facility indicated possible explosive residue on the vehicle.  Fortunately, the lock down was lifted … Continue Reading

SAFETY First: Using the SAFETY Act to Bolster Cybersecurity

We have already seen tremendous fallout from recent cyber attacks on Target, the U.S. Office of Personnel Management, Sony Pictures, and J.P. Morgan.  Now imagine that, instead of an email server or a database of information, a hacker gained access to the controls of a nuclear reactor or a hospital.  The potential consequences are devastating: … Continue Reading

DoD Moves Forward with Stricter Sourcing Requirements for PV Devices

Earlier this week, the Department of Defense (“DoD”) issued a proposed rule to revise (and make stricter) the unique sourcing requirements applicable to certain photovoltaic devices that are used in the performance of DoD contracts.  Specifically, unless an exception under the Trade Agreements Act applies or a contractor secures a waiver based on public interest … Continue Reading

Renewed Pressure to Definitize Letter Contracts

Earlier this week, the GAO issued a report to members of the House and Senate Appropriations Committees regarding the Air Force’s compliance with definitization and reporting requirements associated with the use of undefinitized contract actions (“UCAs”).  UCAs, which commonly take the form of letter contracts, allow contractors to begin performance and seek payment before all … Continue Reading

Lost in Transmission: Email Failure Results in Untimely Size Protest

The Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) recently issued a decision exemplifying the well-known reality that protest deadlines are short and unforgiving. In Size Appeal of Supplies Now, Inc., SBA No. SIZ-5655 (Apr. 30, 2015), OHA denied, as untimely, an appeal of an SBA Area Office decision. The appellant, Supplies Now, … Continue Reading

Federal Agencies Join Forces to Procure Solar Electricity

Earlier this month, the U.S. Environmental Protection Agency (“EPA”), U.S. Forest Service, Department of Energy, and General Services Administration (“GSA”) released a final solicitation for the Federal Aggregated Solar Procurement Project (“FASPP”).  Through the FASPP, these agencies seek to acquire cost-effective solar electricity at nine federal sites located throughout northern California and northern Nevada.  The … Continue Reading

Another Attempt at Defense Procurement Reform Begins

Mac Thornberry is taking a sledgehammer to the Pentagon’s $600 hammer. That particular bogeyman of wasteful defense spending never actually existed, but many real (and larger) inefficiencies continue to plague the defense procurement process.  Last month, the Chairman of the House Armed Services Committee released draft legislation designed to make fundamental reforms to the government’s … Continue Reading

Federal Circuit Invokes Blue & Gold to Affirm Dismissal of Two Protests

Earlier this month, in Bannum, Inc. v. United States, the United States Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’ dismissal of two separate bid protests filed by Bannum Inc, challenging the Bureau of Prisons’ award of contracts for the operation of residential “reentry centers” in Mississippi and South Carolina.  … Continue Reading

Another Proposal from GSA: a Class Deviation for Commercial Agreements

March has been a busy month for the GSA in its efforts to implement what it has touted as a “new vision for Federal purchasing.” On March 5, 2014, GSA announced a proposed rule to reform pricing practices and contractor reporting requirements under multiple award schedule contracts. In its latest move, on March 20, 2015, … Continue Reading

GAO: Don’t Just Drop Your Proposed Costs, Explain Them.

The Government Accountability Office (“GAO”) recently published its decision in a two protester challenge to cost realism adjustments made by the Navy during its evaluation of final proposal revisions (“FPRs”) for a base operations and administrative support services contract. In that decision, the GAO affirmed the Navy’s decision to adjust upward the proposed costs in … Continue Reading

SBA Issues New Rule On Small Business Status Advisory Opinions

On February 11, 2015, the U.S. Small Business Administration issued its final rule implementing statutory revisions that encourage use of small business status advisory opinions from Small Business Development Centers (SBDCs) or Procurement Technical Assistance Centers (PTACs).  Specifically, the new rule implements provisions of the National Defense Authorization Act of 2013 that establish limitations of … Continue Reading
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