When Congress enacted the National Defense Authorization Act for Fiscal Year 2020 in December 2019, Congress included the Fair Chance to Compete for Jobs Act of 2019 (the Act). The Act, in relevant part, restricts federal contractors from requesting criminal history information from certain job applicants until after the applicant has received a conditional offer of employment. While the Act was enacted back in 2019, it applies only “to contracts awarded pursuant to solicitations issued after” December 20, 2021.

As contractors are now starting to be awarded contracts subject to the Act, Husch Blackwell attorneys Sonni Nolan, Michael Schrier and Tracey O’Brien provide a reminder of the Act’s requirements.

In June 2007, the U.S. Court of Appeals for the Federal Circuit held that a party who fails to object to patent errors in a solicitation before the conclusion of the bidding process waives those objections. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).  Commonly, referred to as Blue & Gold, this decision warned contractors that challenges to the terms of a solicitation must be brought early or risk being lost forever. Blue & Gold was further solidified in 2015 in Bannum. Bannum held that “mere notice of dissatisfaction or objection is insufficient to preserve [a] defective-solicitation challenge.” Bannum, Inc. v. United States, 779 F.3d 1376 (Fed. Cir. 2015). In Bannum the protester’s failure to formally protest the solicitation resulted in a waiver of those challenges. Id. The court indicated that a formal challenge would have likely preserved the protester’s post-award challenges, Id., but this was not solidified until now.

Continue Reading Escaping Blue & Gold: Court holds filing a pre-award agency-level protest preserved protester’s arguments

On December 7, 2021, the U.S. District for the Southern District of Georgia, in Georgia v. Biden, No. 1:21-cv-163, granted a preliminary injunction that temporarily stayed the Biden administration’s vaccine mandate for federal contractors and subcontractors “in any state or territory of the United States of America.” The case was initially brought by Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia. The Associated Builders and Contractors (ABC), a national trade organization, intervened on the side of the plaintiffs. The seven states and ABC requested a preliminary injunction staying Executive Order (EO) 14042 and associated FAR clauses and Guidance, which require federal contractors and subcontractors to have their employees provide proof of vaccination in order to work on or in connection with federal contracts and also impose mask and social distancing requirements. The court granted the preliminary injunction and stayed the federal contractor vaccine mandate nationwide.

Continue Reading Georgia Court Blocks Federal Contractor Vaccine Mandate Nationwide

On November 30, 2021, the United States District Court for the Eastern District of Kentucky, in Kentucky v. Biden, et al., No. 3:21-cv-00055, granted a preliminary injunction limiting the enforcement of the federal vaccine mandate for some federal contractors and subcontractors. The preliminary injunction was requested by the Commonwealth of Kentucky, the State of Ohio, and the State of Tennessee. As a result, the court enjoined the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee” pending further briefing and a full resolution of the case on its merits.

Continue Reading Kentucky Court Blocks Federal Contractor Vaccine Mandate

As predicted, another Obama Administration “oldie but goodie” has made a return in the Biden Administration.  On November 18, 2021, President Biden issued a new Executive Order entitled “Executive Order on Nondisplacement of Qualified Workers Under Service Contracts.” Many of the same concepts and requirements have returned, but there are also several notable changes.

Continue Reading Nondisplacement of Qualified Workers is Back, But With Changes

On September 10, 2021, the FAR Council published a final rule amending the Federal Acquisition Regulation (FAR) to clarify how contracting officers should evaluate a prime contractor’s “good faith efforts” to comply with a small business subcontracting plan.

Continue Reading FAR Council Publishes Update to Small Business Subcontracting Regulations

There are new developments regarding the federal contractor COVID mandate as of November 10, 2021. The most important is that the deadline for compliance appears to have been pushed back from December 8, 2021 to January 18, 2022.

Continue Reading UPDATE: Federal Contractor-Specific COVID-19 Workplace Safety Guidance Issued By The Safer Federal Workforce Task Force

This past week, the FAR Council issued a proposed rule that would potentially speed up payments to small business prime contractors and subcontractors across the federal government. The proposed rule, found at 86 Fed. Reg. 53,923, seeks to incentivize agencies to pay prime contractors that are small businesses within 15 days instead of 30 days after receipt of a proper invoice if no payment date is specified in the contract. It also would apply to prime contractors that subcontract with small businesses, applying a similar 15-day requirement to pay small subcontractors when accelerated payments are received. According to the proposed rule, the FAR Council will apply this to most federal contracts by seeking determinations to make this new rule applicable to commercial contracts as well as those under the Simplified Acquisition Threshold.

Continue Reading New Proposed Rule Seeks to Implement Accelerated Payments to Small Business Contractors Across the Government

President Biden’s September 9, 2021 Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, directs the federal Safer Federal Workforce Task Force (“Task Force”) to develop COVID-19 workplace safety guidance for federal contractors and subcontractors providing services to or for the federal government. The Executive Order requires the guidance to apply broadly, not only to contracts governed by the Federal Acquisition Regulations (“FAR”), but also to “contracts and contract-like” instruments not covered by the FAR. The Executive Order also directs the Federal Acquisition Regulatory Council to develop new contract clauses that will incorporate the Task Force’s guidance into new and newly-amended federal contracts.

Continue Reading Federal Contractor Specific COVID-19 Workplace Safety Guidance Issued By The Safer Federal Workforce Task Force

Imagine as a supplier of medical oxygen cylinders and tanks in your region, you enter into an arrangement with HHS or DHS to provide oxygen to nearby hospital facilities dealing with surges in the COVID-19 pandemic. However, due to the recent dramatic surge in your area and the significant demand for oxygen, the government moved quickly to award you a contract that appears very different from other federal contracts you have previously signed.

Continue Reading Terminations for Convenience Clauses vs. Mutual Termination Clauses: What are the Limits on the Government’s Right to Terminate?