On November 8, 2023, the Biden-Harris Administration announced the Better Contracting Initiative (BCI), a four-pronged initiative to ensure that the federal government is getting the best terms and prices when purchasing goods and services. The federal government purchases billions of dollars’ worth of goods and services each year; however, the Administration is concerned that agencies pay inconsistent prices and often more than market price. The BCI strategy is to improve how federal agencies procure innovative technologies and leverage data to make smart buying decisions by utilizing the following four steps as detailed below.
Bite Your Tongue or Eat Your Words: GAO Reminds Contractors that Correspondence with the Agency Can Be Construed as an Agency-Level Protest, Doubling Down on a Timeliness Trap
When faced with a dissatisfying debriefing, a contractor may choose to respond to the agency to question or even rebut its evaluation. However, the recent Government Accountability Office (GAO) decision in NikSoft Systems Corporation (NikSoft) serves as an important reminder that those communications can be interpreted as agency-level protests, with potential to render subsequent GAO protests untimely.
Biden Administration Announces End of Contractor COVID Vaccine Mandate
On May 1, 2023, the Biden Administration announced its plan to issue an Executive Order in the coming days to rescind the existing executive order that imposes COVID vaccine requirements and safety protocols on federal contractors. Specifically, Executive Order 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors will be rescinded effective May 12
FY 2023 National Defense Authorization Act: Key Provisions Government Contractors Should Know
The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023, signed into law on December 23, 2022, makes numerous changes to acquisition policy. Crowell & Moring’s Government Contracts Group discusses the most consequential changes for government contractors here. These include changes that provide new opportunities for contractors to recover inflation-related costs, authorize new programs for small businesses, impose new clauses or reporting requirements on government contractors, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2023 NDAA also includes the Advancing American AI Act, the Intelligence Authorization Act for FY 2023, and the Water Resources Development Act of 2022, all of which include provisions relevant for government contractors.
Contractors Take Note: DoD Issues Two Final Contract Cost and Pricing Rules
On October 28, 2022, the Department of Defense (DoD) amended the Defense Federal Acquisition Regulation Supplement (DFARS) by issuing two final rules related to contract cost and pricing. Specifically:
- Requiring Data Other Than Certified Cost or Pricing Data – DoD issued a final rule to implement a section of the Fiscal Year (FY) 2020 National
Updated Guidance Suggests that Federal Government May Enforce Contractor Vaccine Mandate
The Safer Federal Workforce Task Force issued updated guidance for federal contractors on October 14, 2022, announcing that it will reevaluate enforcement of the federal contractor vaccine mandate and safety requirements issued under Executive Order 14042. This is the first pronouncement from the Task Force after it had indicated that it would not enforce the
Federal Government Will Not Enforce the Contractor Vaccine Mandate Absent Further Notice
On August 31, 2022, the Safer Federal Workforce Task Force announced that the Federal Government “will take no action to implement or enforce Executive Order 14042,” the contractor vaccine mandate, “to ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation.”
This announcement
A Deeper Dive into the State Actions Targeting Russia that May Impact Government Contractors
As Congress considers legislation prohibiting government contractors from doing business in Russia, over 20 states have already acted. In this alert, we highlight: (i) how different states are defining Russian business operations, and the corresponding risks to differently situated government contractors; and (ii) unique aspects of certain state actions that contractors need to be aware
Updates to Federal Bill Targeting Government Contractors Operating in Russia
As we covered in a prior alert, the recently introduced Federal Contracting for Peace and Security Act (H.R. 7185) could have a profound impact on government contractors. The Act would require termination of existing contracts and prohibit awards, extensions, and renewals of prime contracts and subcontracts with companies doing business in the
Letter to Agency About Solicitation Requirement Creates Pre-Award Timeliness Trap
Contractors that encounter problematic solicitation provisions have many avenues to address them, such as industry days, questions and answers, and even communications directly with an agency. However, the recent Government Accountability Office (“GAO”) decision in Science and Technology Corporation serves as an important reminder that contractors must be thoughtful about when and how they communicate directly with an agency. Depending on the specific content of their communications, contractors can unwittingly create a timeliness trap that will shorten their deadline to file a GAO protest.
On September 13, Science and Technology Corporation (“STC”) sent a “letter of concern” to the National Oceanic and Atmospheric Administration (“NOAA”) expressing dissatisfaction with a key personnel requirement in a particular solicitation, and requesting that the requirement be amended. NOAA responded the next day, denying the request and noting that the requirement was “an important aspect” of the solicitation.
On October 1—which was 17 days after NOAA’s rejection, but still prior to the due date for receipt of proposals—STC filed a pre-award protest at GAO challenging the solicitation requirement. Ordinarily, a pre-award protest challenging solicitation requirements is timely so long as it is filed before the deadline for receipt of proposals. See 4 C.F.R. § 21.2(a)(1) (“Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. . . .”). However, GAO dismissed STC’s protest as untimely, concluding that STC’s September 13 letter constituted an agency-level protest, and holding that STC was required to protest at GAO no later than 10 days after NOAA’s September 14 rejection. See 4 C.F.R. § 21.2(a)(3) (“If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action. . . .”).
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