The decision of the Court of Federal Claims in Marine Industrial Construction LLC v. United States, 158 Fed. Cl. 158 (2022), includes detailed analysis of several legal issues familiar to contractors facing challenging subsurface conditions on a federal construction contract. Continue Reading The Difference between Differing Site Conditions and Superior Knowledge
In a speech given at NYU on September 15, 2022, DOJ Deputy Attorney General Lisa Monaco reviewed new and enhanced DOJ policies regarding criminal enforcement related to corporate entities. Monaco’s comments appear to signal that DOJ will be taking a significantly more aggressive posture in corporate investigations. We summarize briefly the new policy priorities below and also provide suggestions on how to contractors might manage risk and compliance issues accordingly. Continue Reading DOJ’s New Policies Encourage Voluntary Self-Disclosure, Compensation Tied to Compliance
Per- and polyfluoroalkyl substances, commonly known as PFAS, are long-lasting chemicals that are quickly gaining notoriety for both their persistence in the environment and their ubiquity in water, air, and soil. Developed in the 1950s, PFAS are used in a wide range of products including firefighting foam, stain-resistant and water-repellant fabrics, nonstick cookware and many others. Concerns over PFAS contamination are mounting and the associated caselaw is growing. Federal contractors could be impacted by PFAS in two primary ways: first, contractors may face PFAS-related litigation resulting from the manufacture and distribution of affected products and second, contractors may have to adjust specifications to comply with the government’s shift away from products containing PFAS. Continue Reading PFAS and Federal Contracting: What Contractors Should Know and Why
Key Point
As we wrote back in November 2021, the Biden Administration issued Executive Order 14055 reinstating most of the concepts from the Obama Administration era nondisplacement Executive Order 13495. Two months after Biden’s imposed deadline of May 2022, the U.S. Department of Labor finally published proposed regulations on July 15, 2022.
Generally speaking, EO 14055 and the proposed Nondisplacement regulations require successor contractors to make offers of employment to all predecessor contractor Service Contract Act covered employees who worked on the predecessor contract. Predecessor contractors are required to prepare and submit a list of their Service Contract Act covered employees to the contracting officer at least 30 days prior to contract termination. The contracting officer then provides a copy of that list to the successor contractor who then is required to make bona fide job offers to the predecessor’s service employees who worked on the prior contract. The rollout of these new regulations is of the utmost importance to any federal contractor or subcontractor with employees subject to the Service Contract Act. Continue Reading Nondisplacement of Qualified Workers Under Service Contracts – Proposed Regulations Issued
Unlike private parties in a contract, the government has several unique rights that allows it to avoid its contractual obligations in certain circumstances. We have written about the government’s right to terminate contracts for convenience. But the government may also avoid contract liability by invoking the sovereign act doctrine as a defense. This defense is available where government’s obstruction to the contract is considered a public and general act as a sovereign.
Continue Reading ASBCA Finds COVID Mitigation is a Sovereign Act
Contractors and contracting officers are often asked to make tough decisions about issues that arise in the course of a complex government contract. Decisions that change the scope of work, the schedule, or the cost of the work must be documented so that the work can proceed. In a perfect world, the parties would execute a bilateral contract modification that addresses and resolves any potential future disputes.
Although the United States military’s role in Afghanistan effectively ended in August 2021, the Government’s fraud watchdog for operations in Afghanistan, the Special Inspector General for Afghanistan Recovery (“SIGAR”), continues to have an active supervisory and oversight role. Continue Reading Recent SIGAR Reports Highlight Ongoing Oversight Role
In a case of first impression, the U.S. Court of Appeals for the Federal Circuit recently ruled in SEKRI, Inc. v. U.S., No. 21-1936 (May 13, 2022), that a non-profit agency that was the sole mandatory source for a specific piece of military kit had standing to file a bid protest over a solicitation even if it had never submitted a proposal to the procuring agency.
The case was filed by Southeastern Kentucky Rehabilitation Industries, Inc. (“SEKRI”) a non-profit organization whose primary purpose is to provide qualified personnel, facilities, and related services for persons with disabilities to help them obtain and maintain competitive employment. Among the products that SEKRI manufactures is an Advanced Tactical Assault Panel (“ATAP”) – “a fighting load carrier to be worn with a parachute harness” that “can be configured . . . to attach 6 or more M4 magazines, two grenades, an Individual First Aid Kit (IFAK) and canteen/general purpose pouches.”
SEKRI is a nonprofit agency qualified as a mandatory source of ATAP under the AbilityOne Program. The AbilityOne Program implements the Javits-Wagner-O’Day Act (“JWOD Act”), which mandates that federal agencies purchase certain pre-approved supplies and services from qualified non-profit agencies that employ blind or severely disabled workers. 41 U.S.C. § 8504(a).
Despite the JWOD Act’s mandatory requirements, the Defense Logistics Agency (“DLA”) issued a Solicitation in 2019 seeking full and open competition to supply ATAPs. SourceAmerica, the committee that oversees the AbilityOne Program, corresponded with DLA and asked DLA to comply with its JWOD Act obligations. DLA refused to alter its full and open competition procurement plans. SEKRI never submitted a proposal in response to DLA’s Solicitation, but instead filed a bid protest with the U.S. Court of Federal Claims after the solicitation period ended but before DLA issued an award.
The U.S. Court of Federal Claims dismissed SEKRI’s bid protest for lack of standing. The Federal Circuit reversed holding, in relevant part, that SEKRI qualified as a prospective bidder for standing purposes given its status as a mandatory source in the AbilityOne Program:
We hold that SEKRI qualifies as a prospective bidder for standing purposes under the Tucker Act. SEKRI is the designated mandatory source of ATAP in the AbilityOne Program. SourceAmerica notified DLA early in the solicitation period that SEKRI is the mandatory source of ATAP in the AbilityOne Program. Despite its awareness that SEKRI is the mandatory source, DLA opted to continue the competitive solicitation of bids for ATAP. DLA thus knowingly violated its statutory and regulatory obligation under the JWOD Act and its implementing regulations to procure ATAP from SEKRI using the AbilityOne Program. . . .
It is unreasonable to require mandatory sources such as SEKRI to openly compete in the competitive bidding process given Congress’s intent to take participants in the AbilityOne Program out of the competitive process. In the competitive bidding process, procuring agencies solicit bids because they do not yet know which entity or entities will best be able to supply the product. Not so under the JWOD Act. Entities like SEKRI have established economic interest bona fides because they have been qualified under the AbilityOne Program and are a mandatory source. Congress has established that such entities must be prioritized over other commercial sources, absent special circumstances.
Slip Op. at 13-16 (citations omitted).
The Federal Circuit’s decision effectively opens the courthouse doors for all AbilityOne Program nonprofit agencies to file timely bid protests when a federal agency fails to comply with its mandatory purchasing obligations under the JWOD Act. Federal agencies would be wise to carefully comply with the JWOD Act or else face a potential flood of bid protests that now cannot be easily dismissed for a lack of standing.
On April 26, 2022, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the FAR to include overseas contracts as part of agency small business contracting goals. This would allow small business contracting procedures to apply to overseas procurements. Prior to this rule, FAR 19.000(b) explicitly stated that small business programs did not apply outside the United States and its outlying areas. This new rule from the Councils follows an SBA regulation amendment that sought to apply the Small Business Act to overseas acquisitions—an area that the SBA’s regulations were silent about previously. The primary aim of the Councils’ and SBA’s rule changes are to expand overseas opportunities for small businesses. Continue Reading Set Asides Will Now Apply to Overseas Procurements