Government Contracts Legal Forum

Webinar: What Will The New Year Bring For Government Contractors?

Posted in Legal Developments
Peter J. Eyre

Tight budgets, increased oversight, new executive orders, complex regulatory environment, and intense competition remain atop the list of issues facing government contractors. Should you expect anything different in 2015? Please join us on Wednesday, January 7, 2015 at 1:00 pm Eastern to hear our Crowell & Moring team discuss predictions for the coming year. Topics will include likely trends and issues in costs, disputes, cybersecurity, balance of power between Congress and the Executive Branch, procurement fraud, bid protests, suspension and debarment, data rights, mergers & acquisitions, international issues, labor and employment, small business, and a whole lot more.

Presenters include some of the most experienced attorneys in the field and we hope you can join us for this free webinar.

Please click here to register. Shortly after registering, you will receive log-on and dial-in information.


OFCCP Issues New Rule Prohibiting Discrimination On Basis of Sexual Orientation and Gender Identity, More Guidance to Come

Posted in Labor
Peter J. Eyre

On December 9, 2014, the Office of Federal Contract Compliance Programs (OFCCP) within the Department of Labor (DOL) issued a final rule implementing the President’s July 2014 Executive Order 13672, which prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity. The rule requires contractors and subcontractors to add “gender identity” and “sexual orientation” to the Equal Opportunity Clause and to their solicitations or advertisements for employment, but it does not require them to solicit such information from applicants or employees, to set placement goals, or to maintain or analyze any data on those categories. Companies that wish to learn more about this rule might be interested in a December 5 open forum hosted by DOL and DOL’s Frequently Asked Questions regarding this rule. In response to questions from industry about the rule, a DOL spokesperson indicated additional meetings with stakeholders will be scheduled and further guidance will be issued.

C&M Lawyers Conduct Live Webinar on Government Contract IP Rules on Thursday, December 11

Posted in Intellectual Property
John E. McCarthy Jr.Jonathan M. BakerJoelle Sires

On Thursday, December 11 at 1 PM Eastern, join our Crowell & Moring attorneys for a webinar entitled: “Intellectual Property Rules in Government Contracts Legal Update: Know Your Technical Data and Patent Rights.” During this 90-minute webinar, we will provide an overview of the key principles governing the rules and regulations relating to rights in technical data, computer software, and patents. Participants will also pick up practical pointers to help contractors avoid traps for the unwary that could inadvertently compromise their intellectual property rights.

Please note that Thompson Information Services charges a fee for this webinar. Registration information can be found here.

GAO Releases Bid Protest Statistics for FY 2014

Posted in Bid Protest
John E. McCarthy Jr.Mary Gilbert

On November 18, GAO released its annual report to Congress under the Competition in Contracting Act of 1984, 31 U.S.C. § 3554(e)(2), disclosing the following bid protest statistics for FYs 2010-2014:

The number of total cases filed was up 5% from the previous year to 2,561. FY 2013 had seen a slight decrease in the number of cases filed for the first time since FY 2006. This year’s increase suggests that the dip in FY 2013 may have been anomalous, possibly a result of sequestration and the resulting furloughs of employees with acquisition responsibilities.

The sustain rate for FY 2014 dropped to 13%, a 4% decrease from the previous year. However, the effectiveness rate – which captures all instances in which the protestor obtained some form of relief – remained constant at 43%. Thus, while GAO sustained fewer protests in FY 2014, agencies were more apt to take voluntary corrective action. Ultimately, nearly half of all protestors achieved some form of relief.

By contrast, GAO employed alternative dispute resolution (“ADR”) techniques in only 96 cases in FY 2014, a 33% drop off from the prior year and the least in five years. However, this could be explained by agencies’ increased propensity to take corrective action early on in the protest process, and is consistent with the steady effectiveness rate described above. But it is difficult to draw conclusions about why ADR proceedings were comparatively rare this year.

In addition, the number of cases in which GAO conducted a hearing ticked up by 35% to 42, or 4.7% of cases filed. This represents a reversal of the steady decrease in the number of GAO hearings held over the last decade.

For just the second year, GAO was also required to report on the most prevalent grounds for sustaining protests, which this year included: 1) failure to follow the evaluation criteria, 2) flawed selection decision, 3) unreasonable technical evaluation, and 4) unequal treatment. Notably, this is a change from last year (FY 2013) in which the most prevalent reasons for sustaining protests were: (1) failure to follow solicitation criteria; (2) inadequate documentation; (3) unequal treatment; and (4) unreasonable price/cost evaluation. It is important to remember that this data includes only cases decided on the merits, not those in which agencies took corrective action. Agencies are not required to and do not report on the reasons why they decide to take voluntary corrective action.

Finally, the FY 2014 report also addresses the effect of the October 2013 government shutdown on GAO’s proceedings. Remarkably, GAO survived the shutdown without a significant impact on its performance. There were 280 active bid protest cases pending at GAO when the agency – like the rest of the federal government – shut down for 16 days in October 2013. As a result, the standard 100-day deadline for resolving those 280 cases was extended by 16 calendar days. GAO was able, however, to resolve all but 39 cases within the typical 100-day timeframe, and only used the maximum 16-day extension in 5 cases. Thus, the numbers reflect that GAO recovered quickly and the shutdown did not result in major delays for pending protests.

Army Office of Energy Initiatives Releases RFP for New Renewable Energy Project at Fort Hood

Posted in Legal Developments
David J. GinsbergSteve McBradyCameron PrellMatthew B. Welling

On October 17, 2014, the U.S. Defense Logistics Agency (DLA) issued a solicitation for the construction and operation of large-scale solar and wind projects at the Fort Hood military base. Fort Hood is the largest active military duty post in the U.S., located approximately 60 miles north of Austin, Texas.

The RFP, which is the latest renewable energy project under the landmark $7 billion Multiple-Award Task Order Contract overseen by the U.S. Army Office of Energy Initiatives (previously discussed here), seeks one or more energy development firms to build, own and operate renewable energy capacity capable of servicing 100% of Fort Hood electrical energy requirements – where peak energy demand is approximately 110 MW. The RFP contemplates a fixed price contract for up to 29 years with minimum annual production of 30 GWh from on-site solar resources and 200 GWh from off-site wind resources, with excess generation from off-site resources available for contractor use (subject to the government’s first right of refusal to purchase). All necessary facilities will be constructed, owned, operated, and maintained by the contractor for the duration of the contract, and the government will retain a purchase option at its expiration or early termination. The scale of the project demonstrates the Federal Government’s continued emphasis on expanded onsite use and development of renewable energy resources (discussed here, here, and here).

For a list of additional projects and opportunities under the MATOC, follow the link.

C&M Lawyers Conduct Live Webinar on TAA Risks on Wednesday, September 10

Posted in GSA Schedule
J. Catherine KunzAdelicia R. Cliffe

On Wednesday, September 9th at 12 PM Eastern, join our government contracts attorneys for a webinar entitled: “Mitigating Trade Agreements Act Risks for GSA Schedule Holders.” During this 60-minute webinar, we will provide an overview of the GSA Schedule contract requirements related to the Trade Agreements Act (“TAA”), review recent enforcement actions by the government and whistleblowers against Schedule contractors for alleged violations of the TAA, and discuss how contractors can mitigate TAA non-compliance risks related to manufacturing processes and purchasing from suppliers.

Please note that Federal Publications Seminars charges a fee for this webinar. Registration information can be found here.


Not Our Problem: ASBCA Has No Say in Prime-Sub Sponsorship Dispute

Posted in Legal Developments
Steve McBrady

In Appeal of Binghamton Simulator Co. (ASBCA, Aug. 21), the board held that it had no jurisdiction to hear a subcontractor’s appeal in which the prime contractor declined to sponsor the sub’s appeal. Despite the subcontractor’s argument that the terms of its subcontract required the prime contractor to sponsor the appeal, the board held that it had no jurisdiction to enforce the terms of a subcontract and noted that, under the CDA, only “rare, exceptional” circumstances can create either privity of contract between a subcontractor and the government or establish an other-than-privity basis for allowing the board to exercise jurisdiction, such as (i) where the prime acts as a “mere agent” of the government; (ii) where the terms of the prime contract permit direct subcontractor appeals; or (iii) where there is an implied-in-fact contract, none of which applied under the facts of this case.

Primer on the New “Fair Pay and Safe Workplaces” Executive Order

Posted in Legal Developments
Steve McBrady

On September 3rd, I had the pleasure of presenting on the “Fair Play and Safe Work Places” Executive Order (previously discussed here and here) at the Professional Services Council’s Labor Policy Committee Meeting. This EO, along with several other EOs focused on labor law compliance, is garnering significant attention in the contracting community. Hat tip to Alan Chvotkin and the exceptional team at PSC for their hospitality. The Powerpoint is linked here.

UPDATE: Here is the link for next week’s C&M Webinar titled “Federal Contracting Policy By Excecutive Order: What Does It Mean for Contracts?“.

DoD and NASA Propose New Rule for Uniform Line Item Identification Structure in Gov’t Contracts – Comment Period Ends October 6th

Posted in Legal Developments
Edward Goetz

DoD, NASA, and the GSA have proposed a new rule that would change the federal acquisition regulation to establish a uniform line item structure for the Federal procurement system.  The rationale for the change is that a uniform line item identification structure would improve the accuracy, traceability, and usability of procurement data.  It is also part of the effort to implement the objectives of the Federal Funding Accountability and Transparency Act of 2006, including promoting achievement of rigorous accountability of procurement dollars and processes.

The new rule would apply to solicitations, government-wide acquisition contracts, multi-agency contracts, purchase orders, agreements involving pre-priced supplies or services, and delivery orders.  If approved, the change would become effective in FY 2016. Continue Reading

“Fair Pay and Safe Workplaces Executive Order” Increases Focus on Contractor Compliance With Labor Laws

Posted in Legal Developments
Steve McBrady

On July 31, 2014, the Obama Administration issued a new Executive Order targeting contractor compliance with Federal labor laws.  While the order, dubbed the “Fair Pay and Safe Workplaces Executive Order,” aims to create several new obligations for contractors and subcontractors doing business with the Federal government.  In the coming months, the FAR Council and several other agencies will be preparing and issuing guidance and regulations to implement the substantive provisions of the Executive Order, which are summarized below. Notably, while the Executive Order itself does not create any substantive obligations now — i.e., in advance of issuance of regulations and guidance — it does not set the stage for the FAR Council and agencies to issue guidance and regulations implementing the Order’s provisions.

Prior to Award.  Contractors bidding on procurement contracts in excess of $500,000 would be required to “represent, to the best of the [their] knowledge and belief, whether there has been any administrative merits determination, arbitral award or decision, or civil judgment” rendered against the contractor within the preceding 3-year period for violations of a slew of labor laws (including the FLSA, Service Contract Act, Davis-Bacon, ADA, ADEA, FMLA, NLRA, OSHA, Title VII of the Civil Rights Act and others, as well as equivalent State laws).  This information would be factored into the Contracting Officer’s (“CO’s”) responsibility determination (i.e., “whether an offeror is a responsible source that has a satisfactory record of integrity and business ethics”).  In addition, contractors would be required to disclose similar information for subcontractors on subcontracts (other than commercially available off-the-shelf items) valued over $500,000, and would be required to include provisions in their subcontracts requiring subcontractors to disclose and update such information. Continue Reading