On Monday, August 13, 2018, President Trump signed into law the H.R. 5515, the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (FY 2019 NDAA), the earliest an NDAA has been signed in over a decade. The FY 2019 NDAA includes several provisions relevant to contractors, including replacing the definition of “commercial item” with “commercial product” and “commercial services,” discouraging the use of lowest price technically acceptable contracting, and a clause designed to accelerate payments to small businesses.
The General Services Administration’s (GSA) System for Award Management (SAM) announced its role in an ongoing Inspector General Investigation into alleged, third party fraudulent activity in SAM.
GSA suspects that the alleged fraudulent activity impacted only a limited number of entities. GSA has since notified the affected entities, and deactivated their SAM registrations. GSA also required these entities to validate and confirm their registration and bank account information in SAM before reactivating their SAM registrations.
On June 14, we presented a webinar titled “Frequently Asked Questions About Requests for Equitable Adjustment and Contract Disputes Act Claims.” The webinar featured some of the most common questions we encounter in the field regarding CDA claims and REAs, as well as a discussion of procedural, substantive, and business considerations that go into the decision to assert a claim or an REA.
The audience Q&A featured a remarkable 30 questions during the 1-hour webinar, so be on the lookout for a “sequel” Claims Recovery v2.0 webinar in the coming weeks, where we will address additional FAQs and new questions that attendees may submit in advance.
Finally, because part of the discussion focused on identifying and pursuing claims, attached here is a description of the Crowell & Moring Performance Review Offering, which describes available training and diagnostic reviews regarding recovery opportunities for clients in the government contracting industry.
Join us for a webinar titled “Government Contracts Recovery: ‘Frequently Asked Questions’ About Requests for Equitable Adjustments and CDA Claims.” During the 60-minute webinar, a team of claims professionals from C&M’s Government Contractor Recovery Practice will address some FAQs that arise in the context of contractor claims / REAs, and solicit audience questions, as we delve into some of the procedural, substantive, legal, and business considerations that factor into whether to assert a claim or an REA.
We hope you can join us on Tuesday, June 14th, 2017 at 1 PM Eastern. To register for this event, please click here.
ABS Development Corp. (ASBCA Nov. 17, 2016) highlights the importance of providing a fully-compliant certification for CDA claims over $100,000—which includes, according to the Board, the requirement for contractors to provide an identifiable and verifiable handwritten signature or digital e-signature. As the contractor in ABS discovered, the Board considers “typewritten” signatures, regardless of font, to be insufficient.
In ABS, the Board dismissed for lack of jurisdiction certain contractor claims that had been “certified” by means of typewritten names (in signature-font) because a typewritten name “cannot be authenticated, and, therefore, is not a signature.” The Board made clear that the CDA’s purpose is to bind contractors by means of a signed certificate that “cannot be easily disavowed by the purported author.” The Board explained that a signature “is a discrete, verifiable symbol that is sufficiently distinguishable to authenticate that the certification was issued with the purported author’s knowledge and consent or to establish his intent to certify.” Because anyone could type another person’s name on a signature block, the purported author could
disavow the certification and the signature would be nearly impossible to authenticate.
After a U.S. district court issued a preliminary injunction enjoining implementation of the “Fair Pay and Safe Workplaces” final rule (discussed here), OFPP issued a Memorandum for Chief Acquisition Officers on October 25 instructing federal agencies to refrain from implementing the enjoined portions of the final rule, and to “immediately” amend any solicitations containing such clauses. See the OFPP Memo here.
On October 24, the U.S. District Court for the Eastern District of Texas issued a preliminary injunction, enjoining the Government from implementing the “Fair Pay and Safe Workplaces” final rule (with a small carve out for the “paycheck transparency” requirements). Specifically, the Court enjoined the Government from (i) implementing any portion of the FAR Rule or DOL Guidance relating to the new reporting and disclosure requirements regarding labor law violations as described in the Executive Order and implemented in the FAR Rule and DOL Guidance, (ii) enforcing the new restriction on arbitration agreements. Stay tuned for further analysis.
The suspension and debarment regulations at Federal Acquisition Regulation (FAR) Subpart 9.4 are focused on the present responsibility of a contractor. Yet, the records of past, inactive exclusions are available for public view in perpetuity on the System for Award Management website (SAM.gov). In a recent article (linked here) published in BNA’s Federal Contracts Report, C&M attorneys explore this important issue.
As discussed in this article, these past records on SAM.gov implicate the present liberty interests of contractors. Because past exclusions on SAM.gov may be accessed by anyone, contractors are facing more questions than ever about their past exclusions from outside of the federal government. Many state and local procurement agencies as well as banks and financial institutions are taking the time to review SAM.gov before granting opportunities or financial assistance to individuals and companies. Accordingly, the intent of FAR Subpart 9.4 is stretching far beyond its purpose, which is to prevent contractors from receiving new contracts or federal financial assistance if they are not “presently responsible.” “Present responsibility” is not defined in FAR subpart 9.4, but this subpart explicitly states that exclusions do not exist to punish contractors for past misdeeds. Thus, it may be only a matter of time until a contractor prevails on a due process challenge to SAM.gov archives, as the reputational harm of these records continues to grow.
Starting on October 25, many new solicitations will contain the new clauses required under the Fair Pay and Safe Workplaces Final Rule. These new clauses will impose significant new compliance and reporting obligations on federal contractors (and eventually on subcontractors). In a “feature comment” published in the Government Contractor, C&M attorneys provide an overview of the key provisions and discuss what contractors should be doing now to start preparing for day-one compliance with the new requirements.
Many federal government contractors and subcontractors have expressed valid concerns about the new “Fair Pay and Safe Workplaces” final rule (and accompanying Department of Labor guidance), which among other things will require companies bidding on covered contracts and subcontracts to disclose “administrative merits determinations,” “arbitral award or decisions,” and “civil judgments” rendered against the company under 14 separate labor and employment laws. Contracting officers, in turn, will be required to consider this labor compliance information as part of their responsibility determinations, potentially impacting contractors’ eligibility for award, and/or leading to fertile new bid protest grounds.
On September 7th, we presented a client webinar titled “Fair Pay and Safe Workplaces Final Rule and Guidance: What You Need to Know,” designed to provide an in-depth summary of the rules and guidance (linked here).
For more information, please contact the professionals listed above or your regular Crowell & Moring contact.