Section 822 of the 2023 National Defense Authorization Act, Public Law No. 117-7776 (Dec. 23, 2022) provides new authority for some defense contractors and subcontractors to obtain price increases that address the impacts of inflation. The new authority is welcome relief for contractors and subcontractors holding fixed-price defense contracts, which typically do not allow a price increase due solely to inflation.Continue Reading Inflation Adjustments for Defense Contractors Under Section 822 of the 2023 NDAA
Brian is the leader of the Government Contracts practice group at Husch Blackwell LLP. Brian represents contractors in federal, state, and local bid protests, contract administration and compliance matters, and in litigation involving complex claims and disputes.
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
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.
Continue Reading How a reservation of rights can affect the outcome of a dispute on a government contract
Contractors are well aware that they cannot rely on the apparent authority of government officials. Under Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947), only an authorized contracting officer may bind the government. But what about the apparent authority of contractor representatives? That was the question presented for consideration in Aspen Consulting, …
The ASBCA’s November 2021 decision in Harry Pepper and Associates, Inc., No. 62038 et al. (Nov. 3, 2021) offers important guidance on the role of live witness testimony in one of the most challenging aspects of differing site conditions claims: proving that the actual site conditions were actually different from those that were expected.
The claims at issue in the case arose from a $36 million task order for the restoration of NASA’s B-2 rocket test stand, which was built in the 1960s as part of the Apollo program and used to test the Saturn V rockets. The restoration was needed so that the B-2 stand can be used to test rocket vehicles for use in NASA’s new moon-launch program, Artemis.Continue Reading The Role of Live Witness Testimony in Proving Differing Site Conditions Claims
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
The Contract Disputes Act establishes the formal process for resolving nearly all claims and disputes that arise under federal government contracts. It is the source of the requirement that contractors certify claims in excess of $100,000, the contracting officer’s final decision, and the deadlines for bringing a dispute to the Court of Federal Claims or an agency board of contract appeals.
It is also the source of the federal government’s authority to use mediation and other forms of alternative dispute resolution. Today we review six key things contractors should know about mediating contract claims and disputes at the Armed Services Board of Contract Appeals.Continue Reading Mediating contract claims and disputes at the ASBCA
The Federal Circuit’s recent decision in Boeing Co. v. Secretary of Air Force, 983 F.3d 1321 (Fed. Cir. 2020), provides some useful clarity on the contents of the restrictive markings and legends that contractors affix to the technical data they deliver to the Government.
The case arose from two Air Force contracts for engineering and manufacturing development of radar systems needed for the F-15 Eagle. The contracts required Boeing to deliver technical data to the Air Force with “unlimited rights.” While Boeing retained ownership of the data, the unlimited rights license allowed the Air Force to “use, modify, reproduce, perform, display, release, or disclose [t]he technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.” 983 F.3d at 1325 (citing DFARS 252.227-7013(a)(16)).Continue Reading How The Federal Circuit’s Boeing Decision Protects Contractor Ownership Of Technical Data
Affirmative action requirements waived for contracts specifically related to COVID-19 relief
As in past times of national emergency, the Office of Federal Contract Compliance Programs has stepped up to exempt certain new federal supply and service contractors and subcontractors from having to comply with most OFCCP requirements over the course of the contract. Announced March 17, OFCCP calls the action the “National Interest Exemption.” Contractors providing supplies and services specifically related to COVID-19 relief must still abide by OFCCP’s non-discrimination and non-retaliation obligations and are subject to OFCCP complaint investigations. The exemption extends to the obligations of all three laws enforced by OFCCP: Executive Order 11246, § 503 of the Rehabilitation Act, and § 4212 of VEVRAA.Continue Reading OFCCP announces exemptions for new federal contracts
Federal agencies and contractors are working hard to address the realities of the COVID-19 pandemic. In some cases, work must stop. In others, the work will increase or change dramatically. While contractors should look to contracting officers for guidance with respect to specific contracts, agency-wide guidance documents are beginning to shed light on the government’s expectations. We will be using this blog entry to collect and share agency guidance on performance of government contracts during the Coronavirus pandemic.
Department of Defense—
- Civilian Personnel Guidance for DoD Components (Mar. 8, 2020). Risk-based measures to minimize risk to civilian personnel and a limited telework policy.
- Guidance for Personnel Traveling During the Novel Coronavirus Outbreak (Mar. 11, 2020). Pre-travel and post-travel health guidance.
- Planning for Potential Novel Coronavirus Contract Impacts (Mar. 10, 2020). Contractors are encouraged to work with government program managers and requirements owners to determine if new measures need to be taken to ensure the welfare and safety of the workforce. Empowers contracting officers as the authority when contract performance is affected by COVID-19.
- The Role of Continuity in the COVID-19 Pandemic Response (Mar. 18, 2020). Reinforces the localized power of the Health Protection Conditions (HPCON) framework and Pandemic Plans that are developed by DoD Components.
- Contract Place of Performance — Public Health Considerations (Mar. 20, 2020). Extends the same telework flexibilities that are available to DoD service members and civilians to contractors, where appropriate.
- Determining and Making Commercial Item Procurements (Mar. 27, 2020). Lists class Commercial Item Determination (CID) to allow Contracting Officers maximum flexibility in awarding critical contracts for supplies and services related to the COVID-19 pandemic in a streamlined manner.
- Undefinitized Contract Actions, Class Deviation 2020-O0012 (Apr 3, 2020). For undefinitized contract actions (UCA), it removes the requirement in DFARS 217.7404-4(a) to limit obligations, if the UCA is related to the national emergency. It also allows the head of the contracting activity to waive the limitations in DFARS 217.7404(a)(1)(i), 217.7404-3(a), and 217.7404-4(a) for a UCA if the head determines the waiver is necessary due to the national emergency for COVID-19.
- Submission of Interim Vouchers under Classified Contracts, Class Deviation 2020-O0011 (Apr. 3, 2020). Directs contractors to submit interim vouchers under classified contracts to the payment office listed in the contract. The vouchers are provisionally approved by the Defense Contract Audit Agency (DCAA).
- Progress Payment Rates, Class Deviation 2020-O0010 (Mar. 20, 2020). Increases progress payment rates at DFARS 232.502-2 for large business concerns to 90% and small business concerns to 95%.
- Progress Payment Rates Implementation Guidance (Apr. 3, 2020). Provides FAQs for Class Deviation 2020-O0010.
Department of the Army—
- Planning for Potential Novel Coronavirus Impacts (Mar. 12, 2020). Encourages increased communication, notes that contracting officers do not bear the responsibility to determine whether the excuse of COVID—19 applies, outlines causes for performance delays that are excusable and FAR provisions that excuse performance delays, and clarifies situations in which compensation is an option.