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Rina M. Gashaw is an associate in the firm's Washington, D.C. office, where she is a member of the Government Contracts Group. Rina’s practice focuses on a range of government contracts issues, including government investigations, client counseling, and providing government contracts due diligence in transactional matters. Her practice also includes bid protests before the Government Accountability Office and the U.S. Court of Federal Claims.

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

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

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

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. . . .”).

Continue Reading Letter to Agency About Solicitation Requirement Creates Pre-Award Timeliness Trap

On January 21, 2022, the District Court for the Southern District of Georgia issued an Order in Georgia v. Biden, No. 2:21-cv-163 (S.D. Ga. Jan. 21, 2022), which responded, in part, to the Government’s requests for clarification regarding the scope of the court’s nationwide injunction of the federal contractor vaccine mandate promulgated under Executive

During December 2021, the House and Senate reached agreement on a compromise National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022.  On December 23, 2021, Congress presented S. 1605 to President Biden, which he signed on December 27, 2021.

The FY2022 NDAA contains numerous provisions relating to acquisition policy—which provide new opportunities for government contractors, will result in the imposition of new clauses or reporting requirements on government contractors, require government reporting to Congress on acquisition authorities and programs, alter processes and/or procedures to which government contractors are subject, etc.  Crowell & Moring’s Government Contracts Group discusses the most consequential changes in the FY2022 NDAA for government contractors below.
Continue Reading National Defense Authorization Act for Fiscal Year 2022: Acquisition Policy Changes of Which Government Contractors Should Be Aware

In American Mine Services, LLC, B-420138 (Dec. 3, 2021), the Government Accountability Office (“GAO”) denied a protest by American Mine Services (“AMS”), finding that the Army Corps of Engineers (“Corps”) reasonably rejected AMS’ bid because it included a provision stating that COVID-19, as well as other similar pandemics or endemics, would be considered “force

Earlier today, the U.S. District Court for the Southern District of Georgia issued a preliminary nationwide injunction of the contractor vaccine mandate in Executive Order 14042.  This injunction will bar the Government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States

On November 4, 2021, the White House released a Fact Sheet announcing that federal covered contractors now have until January 4, 2022 for their covered employees to receive their final vaccination doses. Under the Executive Order 14042 and the Safer Federal Workforce Task Force guidance, covered contractors previously had until December 8, 2021 to have

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