Photo of Peter J. EyrePhoto of Laura J. Mitchell BakerPhoto of Olivia LynchPhoto of Kuba Wisniewski

On May 10, 2021, the U.S. Department of the Treasury (“Treasury”) issued an Interim Final Rule to provide long-awaited guidance on the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund (“the Fiscal Recovery Funds”) established under the American Rescue Plan Act (“ARPA”).  The Rule became effective on May 17, 2021.  To facilitate the implementation of these funds, this Interim Final Rule establishes a framework for determining the types of programs and services that are eligible under the ARPA along with a list of eligible uses that State, local, and Tribal governments may consider. Continue Reading Treasury Issues Guidance on the Coronavirus State and Local Fiscal Recovery Funds under the American Rescue Plan Act

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In URS Federal Services, Inc., ASBCA No. 62475 (March 23, 2021), the Board dismissed a contractor’s three-count complaint for lack of jurisdiction on one count and for failure to state a claim on the other two.  The Board first addressed Count III, which alleged that the Government had breached the implied duty of good faith and fair dealing by failing to pay the invoiced amounts, because the Government had never disputed entitlement to the amounts or taken issue with the contractor’s performance.  The Government moved to dismiss for lack of jurisdiction because the operative facts of the count had not been presented to the contracting officer (CO) in the underlying claim.  The Board agreed, finding that an operative fact of Count III (that the CO had denied the claim) had not been included in the original claim (which the Board noted made sense because the claim’s submission predated its denial).

Under Count I, the contractor sought to recover invoiced costs that the Government had not paid; under Count II, the contractor sought costs that had not been presented to the Government until the submission of its claim in November 2018.  The contractor’s performance ended more than eight years before it submitted its claim, and the last invoice seeking payment was submitted only a week after completion.  The Government moved to dismiss both counts for failure to state a claim.  The Board granted the motion because the Government’s affirmative statute of limitations defense was apparent from the face of the appellant’s Complaint.  The Board held that the contractor knew or should have known of all the events that fixed the Government’s alleged liability and permitted assertion of the contractor’s claim by the date of its last invoice, and that—although an invoice itself is not a claim—the contractor could have converted its unpaid invoices to claims within a reasonable time after submitting them.  This decision serves as a reminder for contractors to be vigilant in submitting their claims within the CDA’s six-year statute of limitations period.

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In GSC Constr., Inc., ASBCA No. 62530 (Mar. 1, 2021), the Armed Services Board of Contract Appeals (the Board) denied the Government’s motion to dismiss for lack of jurisdiction.  The contractor submitted a certified claim to the contracting officer (CO) that included costs associated with a change order, and then subsequently filed an appeal with the Board from the CO’s deemed denial of the claim.  The Government filed a motion to dismiss, alleging that the Board lacked jurisdiction to hear the appeal because it would “necessarily” have to make a determination of fact as to whether the contractor had made false claims and/or false statements in support of its claim.

The Board agreed that making a factual determination of fraud is beyond its jurisdiction, but disagreed that it would need to make that factual determination to resolve the appeal.  Instead, the Board held that the appeal presented an issue of contract interpretation – specifically, whether a subset of work was part of the contract or extra work.  The Board further stated that it could “consider” statements submitted by the contractor’s president and owner, but that it did not have to decide the ultimate question of whether the statements were fraudulent or false to decide whether the work at issue was outside the scope of the contract, and thus, the appeal was properly before it.

This case underscores that in cases involving parallel investigations, “mere allegations of fraud do not divest the Board of jurisdiction.”

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In this episode, host Kate Growley is joined by Lee Matheson as they discuss the basics of the FedRAMP process. Crowell & Moring’s “Byte-Sized Q&A” podcast takes the complex world of government contracts cybersecurity and breaks it down into byte-sized pieces. | PodBean | SoundCloud | Apple Podcasts 

Photo of Peter J. EyrePhoto of Monica DiFonzo Sterling

This week’s episode covers notable bid protest decisions as well as an update from National Institute of Standards and Technology and the Executive Order increasing the hourly minimum wage for federal government contractors, and is hosted by partner Peter Eyre and counsel Monica Sterling. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without. | PodBean | SoundCloud | Apple Podcasts 

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When is the deadline to file a bid protest, and what actions or inactions can cause potential future protest arguments to be waived?  These seemingly simple questions can have surprising answers.  In a recent bid protest decision, GAO held that a contract awardee can waive potential protest grounds by failing to raise them when intervening in a competitor’s bid protest of its award.  See VS2, LLC, B-418942.4, B-418942.5, Feb. 25, 2021, 2021 CPD ¶ –, 2021 WL 873343.  C&M’s Eric Ransom and Rob Sneckenberg explain the VS2 decision and provide useful takeaways for contract awardees in this “Feature Comment” published in The Government Contractor.

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Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, hosts Christian Curran and Olivia Lynch discuss a recent Court of Federal Claims decision with interesting implications for awardee standing. | PodBean | SoundCloud | Apple Podcasts 

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On April 27, 2021, President Biden signed an Executive Order (the “EO”) increasing the hourly minimum wage for certain federal government contractors (and subcontractors) to $15.00 per hour ($10.50 per hour for tipped workers), beginning January 30, 2022. Beginning in January 2023, the applicable minimum wage rate will be adjusted annually based on the annual percentage increase in the Consumer Price Index. Continue Reading President Biden Signs Executive Order Mandating $15 Minimum Wage for Certain Employees on Certain Federal Contracts

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On April 27, 2021, the General Services Administration (GSA) announced its intention to not only continue but expand the Federal Supply Schedule (FSS) Transactional Data Reporting (TDR) pilot program, based on a third consecutive year of positive results.

Since 2016, GSA’s pilot has studied the potential for TDR to replace the various onerous requirements FSS contractors must currently fulfill to ensure the pricing offered to GSA customers is fair and reasonable, including the obligation to make Commercial Sales Practice disclosures and to track commercial pricing and discounts to the negotiated Basis of Award customer under the Price Reductions Clause.  Although the TDR pilot program has been well-received by industry participants, the GSA Federal Acquisition Service’s silence on the program after extending it through FY2020 raised concern over the future of TDR, particularly in the face of published criticism of the TDR pilot program by the GSA Office of Inspector General.  This announcement is therefore welcome news to many existing and future FSS contractors, for whom the future of TDR had been in some doubt over recent months.  Contractors interested in TDR should reach out to their FSS contracting officer for additional guidance regarding the program’s planned expansion.

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The Government Accountability Office sustained a protest (Innovate Now, LLC, B-419546, April 26, 2021) against an Air Force solicitation that required the protégé member of any mentor-protégé joint venture offeror to meet the same experience requirements as all other offerors.  Specifically, the RFP required that a joint venture offeror must provide a minimum of at least one work sample from each member of the joint venture that reflected a federal contract performed by the entity as a prime contractor on a non-fixed price basis for at least six months within the last five years.  The protester argued that the language directly violated the past performance, experience, and capabilities evaluation criteria for small business joint ventures in 13 C.F.R. § 125.8(e).  That provision explains that “a procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.”  SBA, whose opinion GAO solicited, agreed with the protester, noting that while 13 C.F.R. § 125.8(e) does not mandate a particular level or type of experience and provides agencies with the flexibility to determine the appropriate criteria, protégés must be held to a different experience standard from mentors and other offerors.  The underlying rationale for SBA’s rule, and the mentor-protégé relationship, is that a protege may not be able to meet all performance requirements by itself and therefore can gain experience through the help of its mentor and joint venture partner.  Ultimately, GAO ruled that the RFP’s experience requirement violates the express prohibition in SBA’s regulations