Photo of Steve McBradyPhoto of Michelle ColemanPhoto of Alexandra Barbee-GarrettPhoto of Issac Schabes

On April 18, 2023, the Department of Defense (“DoD”) issued guidance to DoD contracting officers directing the cessation of certain emergency contracting measures utilized during the COVID-19 pandemic.  Following the termination of the COVID-19 national emergency declaration through President Biden’s April 10, 2023 signing of H.J. Res. 7, DoD released a memorandum titled “Contracting Updates with the Termination of the COVID-19 Emergency,” which orders contracting officers to cease utilizing all “emergency acquisition flexibilities that were permitted by the national emergency declaration” and terminated all guidance implementing those flexibilities.  The memorandum also identified class deviations issued during the pandemic that “will either be rescinded or addressed through a follow-on effort” including:

  • Class Deviation 2020-O0010, which increased the progress payment rates to 90% for large businesses and 95% for small businesses, will be revised to return large businesses to the customary progress payment rate of 80% “in a manner that minimizes disruption” whereas DOD “anticipates” retaining the 95% rate for small businesses;
  • Class Deviation 2020-O0012, which relaxed various DFARS requirements for undefinitized contract actions (“UCAs”), will be rescinded in full; and
  • Class Deviation 2020-O0021-Rev. 3 and Class Deviation 2020-O0013-Rev. 4, which both relate to reimbursement of covered paid leave costs under CARES Act Section 3610, will be fully maintained until all reimbursement actions are complete.

While this memorandum only addresses to DoD contracts, contractors should watch for other federal agencies to terminate their pandemic-related emergency acquisition flexibility measures as the federal government emerges from the shadow of the COVID-19 pandemic.  Government-wide pandemic-related requirements for government contractors—including the contractor vaccine mandate that remains unenforced and partially enjoined—may also terminate.

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Photo of Steve McBrady Steve McBrady

Steve McBrady is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He also serves as a member of the firm’s Finance and Strategic Growth Committees, where he has played a leading role in expanding client service offerings throughout the U.S.…

Steve McBrady is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He also serves as a member of the firm’s Finance and Strategic Growth Committees, where he has played a leading role in expanding client service offerings throughout the U.S., Europe, Asia, and the Middle East.

In recent years, Steve has received the National Law Journal’s “Winning Litigator” award as a lawyer who has “tackled some of the most widely watched cases of the year,” as well as the “D.C. Trailblazer” award, recognizing lawyers who have “made significant marks on the practice.” In 2018, he was named “Government Contracts MVP” by Law360.

Photo of Michelle Coleman Michelle Coleman

Michelle D. Coleman is a partner in Crowell & Moring’s renowned Government Contracts Group in the firm’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and…

Michelle D. Coleman is a partner in Crowell & Moring’s renowned Government Contracts Group in the firm’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and requests for equitable adjustments, terminations, prime-sub disputes, other transaction authority, and AI.

Michelle also has an active pro bono practice, representing clients as an attorney volunteer with the Washington Legal Clinic for the Homeless. Michelle has helped multiple clients receive long term housing through the Rapid Rehousing Program and other permanent voucher programs. In addition to being a volunteer, Michelle serves as an ambassador and as co-chaired the firm’s fundraising campaign for the Clinic for the last two years.

Prior to working at Crowell & Moring, Michelle served as an attorney in the Air Force’s Acquisition Law and Litigation Directorate, where she provided acquisition and litigation risk advice on procurements valued over $14 billion on major Air Force procurements. She also served as a trial attorney in the Air Force Legal Operations Agency, Commercial Law and Litigation Directorate. As a trial attorney, Michelle litigated complex contract disputes before the Armed Services Board of Contract Appeals (ASBCA) and bid protests before the Government Accountability Office (GAO).

As an Air Force litigator, Michelle litigated a broad range of issues before the ASBCA, including organizational conflicts of interest; small business issues; price realism analysis; past performance; NAICS code issues; technical acceptability; nonmanufacturing rule, brand name, or equal issues; construction claims; commercial items; terminations; assignment of claims; reprocurement; limitation of funds; release; differing site conditions; setoffs/withholding; and evidentiary issues. Among the construction cases, Michelle litigated a $28 million Air Force design-build construction claim involving complex differing site conditions and delay issues, and she also litigated and won a claim for alleged defective specifications, undisclosed information, constructive interpretation, and technical impossibility for a contract for the design and construction of an Air Force dynamic break test stand.

Before her Air Force career, Michelle was employed by a defense contractor, where she gained valuable government contract experience in her roles as a business analyst and a subcontracts administrator. Michelle’s government and contractor experience gives her the unique ability to take both parties’ perspectives into consideration when providing advice on government contract issues.

Photo of Alexandra Barbee-Garrett Alexandra Barbee-Garrett

Alexandra Barbee-Garrett is an associate in Crowell & Moring’s Washington, D.C. office, where she practices in the Government Contracts Group.

Alex represents government contractors in both litigation and counseling matters. Her practice includes bid protests before the Government Accountability Office (GAO), the U.S.

Alexandra Barbee-Garrett is an associate in Crowell & Moring’s Washington, D.C. office, where she practices in the Government Contracts Group.

Alex represents government contractors in both litigation and counseling matters. Her practice includes bid protests before the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and the U.S. Court of Appeals for the Federal Circuit. Alex’s practice also focuses on federal regulatory compliance, mandatory disclosures to the government, contract disputes under the Contract Disputes Act (CDA), prime-sub disputes, and False Claims Act and internal investigations.

Prior to joining Crowell & Moring, Alex was a law clerk to Judge Richard A. Hertling of the U.S. Court of Federal Claims and a government contracts associate at another large law firm. Alex graduated honors from The George Washington University Law School, where she was an articles editor of The Public Contract Law Journal. Alex won the 2015 Government Contracts Moot Court Competition and served as chair for the 2016 competition. Prior to law school, Alex worked as a health care legislative assistant for Rep. Rick Larsen (WA) in the U.S. House of Representatives. She received her B.A. in international studies and anthropology from the University of Washington.

Photo of Issac Schabes Issac Schabes

Issac D. Schabes is an associate in the firm’s Washington, D.C. office, where he is a member of the Government Contracts Group.

Prior to joining the firm, Issac clerked for the Honorable Matthew H. Solomson on the U.S. Court of Federal Claims and…

Issac D. Schabes is an associate in the firm’s Washington, D.C. office, where he is a member of the Government Contracts Group.

Prior to joining the firm, Issac clerked for the Honorable Matthew H. Solomson on the U.S. Court of Federal Claims and the Honorable Robert N. McDonald on the Maryland Court of Appeals. Issac received his J.D., magna cum laude, from the University of Maryland Carey School of Law, where he graduated Order of the Coif and served as an executive editor for the Maryland Law Review. He received numerous awards, including the Judge Simon E. Sobeloff Prize for Excellence in Constitutional Law. During law school, Issac was a member of a low-income taxpayer clinic team that successfully appealed an IRS assessment resulting in a substantial tax liability reduction, and also interned for the Honorable Beryl A. Howell, Chief Judge, on the U.S. District Court for the District of Columbia and the Honorable Marvin J. Garbis on the U.S. District Court for the District of Maryland.