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Robert Burton

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Robert A. Burton is a partner with Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office. He is a nationally-recognized federal procurement attorney, an expert witness on government contracts issues in federal court and arbitration proceedings, and a leader who assists government contractors with navigating the complex and rule-driven procurement process. He represents a wide range of companies that conduct business with the federal government, from large defense contractors and systems integrators to small businesses.

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On September 8, 2022, the Department of Defense (“DoD”) issued Class Deviation 2022-O0009 (the “Deviation”) immediately authorizing contracting officers to allow active registration in the System for Award Management (“SAM”) within 30 days of contract award or three days prior to submission of the first invoice (whichever comes first) rather than at the time of award—provided the contractor can prove it has initiated or attempted to start the SAM registration process.  The Deviation is in effect through October 31, 2022 unless rescinded or extended.

The SAM registration process, which changed in April 2022 when GSA switched from the DUNS number to the Unique Entity Identifier (“UEI”), has suffered from significant delays and system errors.  These system challenges continue, and SAM incident tickets continue to take weeks to process in many cases.  With this Deviation, DoD joins a number of other agencies that have already issued guidance for managing SAM delays that may affect contracts or grants. Continue Reading DoD Issues Deviation for SAM Registration Requirement Due to Ongoing Processing Delays

The General Services Administration (GSA) transition from the Dun & Bradstreet (D&B) Data Universal Number System (DUNS) to the Unique Entity Identifier (UEI), which took effect on April 4, 2022, has faced challenges.  Substantial verification and validation delays continue, agencies have had to issue guidance for the management of SAM delays, and even Congress is showing concerns.  

According to the Federal Service Desk (FSD), GSA requires entities to submit new validation documentation, despite the years of submissions to Dun & Bradstreet, because data rights limitations prevent SAM.gov from using previously validated data.Continue Reading SAM Transition to UEI Plagued with Registration Processing Delays

Congress has not passed crucial funding bills for the start of FY 2022 and, on September 28, 2021, Treasury Secretary Yellen informed Congress that Treasury now estimates that the Federal government will reach the debt ceiling by October 18.  As a result, we again face the prospect of a government shutdown for lack of funding.  While Congress may yet take action, agencies across the government are likely to begin taking steps to prepare for a shutdown, and contractors should do so as well.

Although the issues that contractors would face under a government shutdown may vary with the circumstances of individual contracts, there are a number of common considerations. Based on our experience under prior Federal government shutdowns, these include:

  • Where Is the Money? For incrementally funded contracts, a “shutdown” situation is likely similar to those experienced at the end of any fiscal year when there is a “gap” between appropriations. Contractors will need to consider the implications of the various standard clauses (Limitation of Costs, Limitation of Funds, Limitation of Government Obligations) that may affect the government’s obligation to pay costs in excess of the amounts already obligated to their contracts. Of particular concern will be the standard provisions in those clauses that may limit the government’s liability for termination costs in the event that the contracts are eventually terminated without new funding. Contractors will need to decide whether to continue to perform or to take the actions authorized when funding is insufficient to pay for anticipated costs. But for contracts that are fully funded or that have incremental funding sufficient to cover all anticipated costs, including termination costs, a shutdown would not normally create new funding risks.

Continue Reading Potential Federal Government Shutdown: Crowell & Moring Identifies and Answers Common Questions

On April 7, 2020, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register requesting comments on federal procurement guidelines that designate products that are or can be produced with “recovered materials” and set forth recommended practices for purchasing such items. Recovered materials are those waste materials that have been recovered or…

Crowell & Moring has issued its “Regulatory Forecast 2018: What Corporate Counsel Need to Know for the Coming Year.”

The section focusing on government contracts, “Will Purchasing Be Streamlined?” provides an overview of how the procurement process might be made more efficient, and this time, government contractors might be able …

Continuing his trend of fulfilling the promises set forth in his Contract with the American Voter, President Trump, on January 30, 2017, issued an Executive Order mandating the elimination of at least two existing regulations for every new regulation issued.  In particular, the order explains that “whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.”  In this way, the Administration intends to offset “any new incremental costs associated with new regulations….” Notably, however, the definition of regulation does not include: (1) “regulations issued with respect to a military, national security, or foreign affairs function of the United States”; (2) “regulations related to agency organization, management, or personnel;” or (3) “any other category of regulations exempted by the Director.”
Continue Reading Trump Administration Seeks to Reduce Regulatory Burdens

On Saturday, January 28, President Trump issued an Executive Order setting forth the ethics regulations governing current and future executive agency appointments, which is both more restrictive and less restrictive than the 2009 Obama Executive Order addressing the same issue.  Specifically, and with respect to the former, President Trump’s order bans all executive agency appointees from engaging in “lobbying activities” with respect to the particular agency in which the appointee served for a period of five years after leaving the Administration, and further prohibits such appointees from lobbying on behalf of a foreign government or political party during the remainder of their lifetimes (if such activities would require registration “under the Foreign Agents Registration Act of 1938”).  See §§ 1.1, 1.4.  These two prohibitions were absent from the Obama-era counterpart and mirror two of Trump’s promises outlined in his Contract with the American Voter.
Continue Reading Trump’s Ethics Executive Order More Concerned with Post-Government Employment Activities

On May 4, 2016, the FAR Council’s draft final rules and the Department of Labor’s draft final guidance implementing the “Fair Pay and Safe Workplaces” Executive Order arrived at the White House’s Office of Information and Regulatory Affairs (OIRA) for review, setting in motion the final steps prior to the issuance of burdensome new compliance…