On April 6, 2023, the Civilian Board of Contract Appeals (CBCA), in BES Design/Build, LLC, CBCA 7585, dismissed a contractor’s appeal for lack of jurisdiction, finding the appeal untimely, and underscoring that a contractor cannot reset the 90-day appeal window by resubmitting its original claim.
On February 24, 2021, BES Design/Build, LLC (BES) submitted
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 “
On December 30, 2022, New York Governor signed into law Labor Law Section 240-i, establishing a registration system for contractors and subcontractors engaged in public work and covered private projects in New York. This law will require contractors to register with the New York State Department of Labor (the “Department of Labor”) every two years, by submitting various disclosures about their businesses, in order to ensure that contractors do not have previous labor law violations, and will abide by New York labor laws and regulations, including prevailing wage requirements. The Department of Labor will establish and maintain a public on-line system where registrations and disclosures are available.
On November 1, 2022, the Armed Services Board of Contract Appeals (ASBCA) published its FY 2022 Report of Transactions and Proceedings, which provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, Central Intelligence Agency, National Aeronautics and Space Administration, Defense Logistics Agency, Defense Contract Management Agency
In Lockheed Martin Aeronautics Company, ASBCA No. 62209, the Armed Services Board of Contract Appeals (“Board”) denied the Air Force’s motion for summary judgment, which had argued that the “measured mile” approach to calculating disruption was legally untenable. In its decision, the Board noted that it has “accepted the measured mile approach as an
On March 17, 2022, the National Institute of Standards and Technology (“NIST”) published an initial draft of its Artificial Intelligence (AI) Risk Management Framework (“AI RMF”) to promote the development and use of responsible AI technologies and systems. When final, the three-part AI RMF is intended for voluntary use and to improve the ability to
In Tolliver Group, Inc. v. United States, No. 2020-2341, 2021 WL 5872256 (Fed. Cir. Dec. 13, 2021), the Federal Circuit vacated and remanded the Court of Federal Claims’ (“COFC”) decision holding that the contractor was entitled to an equitable adjustment for damages caused by the Government’s breach of the implied warranty that satisfactory contract
On November 15, 2021, the Defense Innovation Unit (DIU) released its Responsible Artificial Intelligence (AI) Guidelines (“RAI Guidelines”) to help contractors and federal officials gauge whether AI technology and programs align with the Department of Defense’s (DoD) Ethical Principles for AI (as we previously reported on here). Specifically, the RAI Guidelines provide a process
On November 1, 2021, the Safer Federal Workforce Task Force (Task Force) issued new Frequently Asked Questions (FAQs) for federal contractors that are subject to Executive Order (EO) No. 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors. The new guidance addresses requests for accommodations, applicability to corporate affiliates, and recommendations for enforcement and compliance. As required by the implementing contract clause, covered contractors are required to comply with this new guidance.
Requests for accommodations: First, the FAQs state that requests for accommodation do not need to be resolved before a covered contractor employee begins work on a covered contract or at a covered workplace. While requests are pending, these employees must follow workplace safety protocols for employees that are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors, which Crowell addressed in client alerts on September 24, 2021 and October 6, 2021. On the other hand, for covered employees that are not vaccinated because they received an accommodation from the covered contractor, agencies are entitled to determine which protocols such employees must follow when they enter a federal workplace. Notably, agencies may determine that mandating the vaccine is the only safety measure available. In such cases, covered employees with accommodations would be unable to work at the federal workplace but the contractor would not be relieved from meeting its contractual requirements. Covered contractors could presumably take the same approach for employees that only or occasionally work at a covered contractor workplace. Additionally, covered contractors should notify their contracting officer when one of their employees who works at a federal workplace has received an exception to the requirement to be fully vaccinated.
Corporate Affiliates: Second, the FAQs clarify that corporate affiliates of a covered contractor that do not otherwise qualify as covered contractors may be covered by the vaccine mandate if: “(i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.” Indicia of control also include interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees. Therefore, employees of a corporate affiliate of a covered contractor working at the covered contractor’s “covered contractor workplace” will be subject to the vaccine mandate. Additionally, a facility that is owned, leased, or otherwise controlled by an affiliate that is not a covered contractor will be considered a “covered contractor workplace” subject to the vaccine mandate where an employee of the affiliated covered contractor working on or in connection with a covered contract is likely to be present during the period of performance.
Continue Reading Task Force Issues New FAQs for Contractor Vaccine Requirements
Executive Order 14042, issued on September 9, 2021, requires that certain federal contractors and subcontractors mandate vaccinations against COVID-19 for covered employees in addition to requiring compliance by covered employees and visitors with other COVID-19 safety protocols.
However, E.O. 14042 leaves several questions unanswered, including how agencies should implement the order and, in some cases,