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I. Introduction

A U.S. federal government shutdown creates a number of direct and indirect consequences that impact U.S. companies, individuals and virtually every aspect of the U.S. economy.  Although the federal government has experienced previous lapses in funding that have led to shutdowns of all or part of the federal government, the current funding impasse and impending shutdown raise a number of unique and unprecedented questions for government workers, government contractors and businesses, and the public at large.

A U.S. federal government shutdown can have serious consequences because of the size of federal spending and its impact on the U.S. economy.  The U.S. government spent $6.27 trillion dollars in fiscal year 2022 which amounted to approximately 25% of total gross domestic product. The federal government funds over 2,200 federal assistance programs for the public.  There are over 2.2 million federal employees who will be directly impacted in some way by a federal government shutdown with the majority facing a furlough of an undetermined length.  There are over 11 million U.S. federal government contracts signed every year and they may be impacted by a shutdown. Finally, the federal government spends approximately $1.2 trillion dollars every year, or about 19% of all federal spending, on programs that fund or are related to the states.

The purpose of this Client Alert is to explain the consequences of a government shutdown in general, why this one may be different, and to also offer insights to the regulated industries, government contractors and others on what to expect this time around.  Our team is ready and available to help advise companies through this shutdown process.

Continue Reading A Brief Primer on the Impact of a Federal Government Shutdown
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This special edition of the Fastest 5 Minutes podcast covers common questions—and answers—about a potential government shutdown. 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.

Listen: Crowell.com | PodBean | SoundCloud | Apple Podcasts

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Congress has not passed crucial funding bills for the start of the fiscal year 2024.  If Congress does not act by September 30, the government may be forced to shut down for lack of funding.  While Congress may yet act, agencies across the government are preparing for a shutdown, and contractors should do so as well. 

The issues that contractors would face under a government shutdown may vary with the circumstances of individual contracts, but there are a number of common considerations.  

Continue Reading Common Questions—and Answers—About A Potential Government Shutdown
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On September 6, 2023, the Department of Energy (DOE) issued a Class Deviation removing the FAR 52.204-7 requirement that a contractor maintain its System for Award Management (SAM) registration for the entire time from proposal submission until contract award, without any lapse.  As background, FAR 52.204-7 has since 2018 provided that “[a]n Offeror is required to be registered in SAM when submitting an offer or quotation and shall continue to be registered until time of award . . . .”  As we discussed here, the Court of Federal Claims has strictly enforced this language, holding that it unambiguously requires a contractor to maintain its SAM registration throughout the entire proposal and evaluation process, and that an agency lacks the authority to waive that requirement.

The DOE Class Deviation, effective immediately for all DOE procurements, makes the flowing changes:

  • Removes the “shall continue to be registered until time of award” language; and
  • Adds the following language: “A failure to register in SAM or a lapse in SAMs [sic] registration may be treated by the Contracting Officer as a correctable matter of responsibility.”

While this class deviation applies only to DOE procurements, companies should watch for whether other federal agencies follow suit and issue similar class deviations.  Companies also should begin proactively updating existing registrations well in advance of expiration.  Even though the SAM initial registration and update processes have improved over the past year since the original change to the Unique Entity Identifier (UEI) assignment and accompanying entity validation steps, potential delays in the entity validation and Defense Logistics Agency CAGE Code processing steps still caution early registrations and early updates to ensure registration timeliness and continuity.

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This week’s episode covers a Federal Circuit decision about jurisdiction under the Contract Disputes Act, a claim for additional costs relating to COVID related delays, and a False Claims Act settlement touching on cybersecurity and self-disclosure, and is hosted by Peter Eyre and Yuan Zhou. 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.

Listen: Crowell.com | PodBean | SoundCloud | Apple Podcasts

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A False Claims Act (FCA) settlement recently announced by the U.S. Department of Justice stands at the intersection of two evolving trends:  DOJ’s increasing focus on cybersecurity lapses by government contractors as part of its Civil Cyber-Fraud Initiative, and DOJ policies incentivizing corporations to voluntarily self-disclose violations of federal law.

On September 5, 2023, DOJ announced a $4 million settlement with Verizon Business Network Services LLC (Verizon) addressing allegations that Verizon violated the FCA because certain telecommunications services it provided to federal agencies under its General Services Administration (GSA) contracts did not comply with applicable cybersecurity requirements, namely the Office of Management and Budget’s Trusted Internet Connections (TIC) initiative.  DOJ specifically alleged that Verizon’s Managed Trusted Internet Protocol Service (MTIPS)—an information technology service that allows federal agencies to securely connect to public internet and external networks—did not comply with three security controls in the Department of Homeland Security’s TIC Reference Architecture Document, including a control that required the use of FIPS 140-2 validated cryptography.  The Verizon settlement represents the latest example of DOJ’s continued focus on cybersecurity cases, a trend that we believe will only continue to escalate going forward.

Continue Reading Civil Cyber-Fraud Settlement Highlights Potential for Cooperation Credit
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On August 23, 2023, the Office of Management and Budget (OMB) released its final rule and notification of final guidance addressing implementation of the Build America, Buy America Act (BABA) provisions enacted with the Infrastructure Investment and Jobs Act (IIJA), which requires the use of domestic iron, steel, manufactured products, and construction materials in infrastructure projects supported with federal financial assistance.  The final rule goes into effect October 23, 2023, and applies to federal awards for infrastructure projects awarded after November 15, 2021.  We previously reported on OMB’s February 9, 2023 proposed guidance here.

Continue Reading BABA Black Sheep, Have You Final Rules? OMB Issues Final Implementation Guidance on Build America, Buy America Requirements for Federally Funded Infrastructure Projects
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On August 25, 2023, in ECC CENTCOM Constructors, LLC v. United States, COFC No. 21-1169, the U.S. Court of Federal Claims (“the Court” or “COFC”) barred ECC CENTCOM Constructors, LLC (“ECC”) from asserting claims that should have been asserted before the Armed Services Board of Contract Appeals (“ASBCA”) citing the doctrine of claim preclusion. 

At the ASBCA, ECC had appealed a termination for default and sought time extensions and damages due to excusable delay.  The Board dismissed ECC’s appeal, finding that the Contracting Officer (“CO”) acted reasonably in terminating the contract and finding that ECC failed to present its excusable delay claims to the CO as required under M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010).  ECC requested a stay to allow it time to present its delay claims to the CO, but the Board denied the request stating that it was untimely and futile because ECC’s own expert testified that less than half of the delays were excusable, which meant that the CO’s termination decision would still be justified.  ECC appealed the ASBCA’s decision to the U.S. Court of Appeals for the Federal Circuit, where the Board’s decision was affirmed.

Continue Reading Strike When the Iron is Hot: Court of Federal Claims Found a Contractor’s Defense to a Termination Was Precluded by its Failure to Previously Assert Those Claims in Litigation Before the ASBCA
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In StructSure Projects, Inc., ASBCA No. 62927, the Armed Services Board of Contract Appeals (Board) granted an appeal seeking recovery for increased costs resulting from the COVID-19 pandemic.  The underlying task order involved design and alteration services for existing medical facilities at Travis Air Force Base, and included a specific Contract Line Item Number (CLIN) for the provision of temporary phasing facilities that the Government could use while the construction work was ongoing.  When the pandemic began in March 2020, StructSure and its subcontractors had to stop their on-site construction work for 44 days because the Government had limited base access for contractors deemed to be not mission-essential.  StructSure later sought schedule and monetary relief, but the Government only granted schedule extensions under the Default clause.

Continue Reading COVID Costs Claim Succeeds: Contractor Entitled to Recover for Performance of Contract Despite Base Closure
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In ECC Int’l Constructors Inc. v. Army, No. 2021-2323 (Fed. Cir. Aug. 22, 2023), the Court of Appeals for the Federal Circuit overturned longstanding precedent by holding that the requirement to state a “sum certain” in a claim submitted under the Contract Disputes Act (CDA) is not a jurisdictional requirement.  The Court based its decision on recent Supreme Court guidance to “treat a procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is.”  The Court parsed the CDA and found that Congress never used the words “sum certain,” evidencing that Congress did not intend the requirement to be jurisdictional.  This is important because jurisdictional requirements can be raised at any time—even years after the claim was filed and a full hearing on the merits was held—and result in dismissal of the case.  The Court explained that the “sum certain” is “nonetheless a mandatory rule that claimants must follow.” 

Continue Reading Sum-Thing Is Missing from the Contract Disputes Act: Federal Circuit Holds that “Sum Certain” Requirement is Non-Jurisdictional