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George began his career litigating construction disputes before state and federal courts, boards of contract appeals, and arbitration panels. He also has experience representing contractors in state and federal bid protests, and he frequently provides guidance to clients on a wide variety of other government contract issues, including subcontracting, compliance, and Freedom of Information Act requests.

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

As most federal contractors know, the standard FAR clauses grant the government the right to default a contractor for delay. These same clauses, however, protect contractors where the delay is “excusable” and involve “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.” Examples listed in the clauses include, among other

Now that we are two years into the COVID-19 pandemic in the United States, it should come as no surprise that several cases discussing whether COVID-19 is an excusable delay have made their way through the ASBCA and CBCA dockets. These cases show that although COVID-19 may be treated as an “epidemic” under the right circumstances according to the enumerated excusable delays in the FAR, the boards have no intention of treating the pandemic as a cure-all for contractors facing potential terminations for default.

Continue Reading Recent Board Decisions Explain Why COVID-19 Won’t be a “Get-Out-of-Jail-Free Card” for Contractors Facing Terminations for Default

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

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?

In a previous post, we discussed the need to include a sum certain as part of a CDA claim. This requirement of course is but one of several needed for a CDA claim to be valid and for the Court of Federal Claims and the boards of contract appeals to take jurisdiction. Another equally important requirement is that the claim be certified. Like the sum certain requirement, failing to properly certify a claim has the potential to derail pending litigation, or worse, could even prevent an unwary contractor from asserting the claim altogether.

Continue Reading Perfecting a CDA Claim: Don’t Forget to Certify

If a dispute arises on a federal contract, the Contract Disputes Act requires a contractor to submit a written demand seeking as a matter of right a “sum certain” to the contracting officer as part of the claims process. What exactly is a “sum certain”? It is what it sounds like—contractors must provide an exact dollar amount of the overall damages they are claiming in their CDA claims. In other words, whatever damages the contractor is claiming cannot be qualified in any way. Contractors should never use the words “at least,” “approximately,” “no less than,” or “well over” with their damage figure. Instead, the contractor must provide an exact amount a set damage figure that represents the overall amount being demanded. It is okay if the damage figure is an estimate—even a flat calculation of $100,000—as long as an overall demand is made without any qualifying language.

Continue Reading Perfecting a CDA Claim: Sage Advice for the Sum Certain Requirement

Mentor-protégé programs, such as the government-wide one at the SBA for all small business concerns, are designed to help small contractors engage in federal contracting by allowing larger, more experienced mentor firms to provide assistance to protégés. Generally, the proteges receive financial, technical, or management aid from mentors, and the mentors may receive subcontracting goal credits, reimbursement of expenses, and other incentives in return. One of the key concepts behind these programs is to increase the capacity of small business concerns to compete for contracts they would not ordinarily qualify for otherwise. The U.S. Government Accountability Office’s (GAO) recent decision in Innovate Now, LLC, B-419546, Apr. 26, 2021, confirmed this underlying principle.

Continue Reading GAO Confirms Yet Another Benefit of Mentor-Protégé Programs

Last week the Army awarded Microsoft the Integrated Visual Augmentation System (IVAS) contract, a potentially $21 billion undertaking by the Army to develop next-generation night vision and “situational awareness capabilities” in a Heads Up Display. Unlike Microsoft’s last multi-billion dollar contract award, the Joint Enterprise Defense Infrastructure (JEDI), which is still pending before the Court of Federal Claims more than a year after Amazon filed its bid protest challenging the award in November 2019, IVAS is unlikely to experience the same fate. Why? Because IVAS was awarded under the Army’s Other Transaction authority (OTA) and is not subject to the same FAR rules as the JEDI contract.

Continue Reading The Army’s Newest $21 Billion Contract Is Not Your Typical Government Contract

It has been two months since President Biden issued his Buy American Executive Order on January 25, 2021. But it would seem we still have more questions than answers: What specific actions will agencies take to promote the Order’s policy? What will the Made in America Office look like? Where can I find more information about proposed waivers? While the answers to these questions are probably still months away, it is important for contractors to understand the possible implications now and plan accordingly.

Continue Reading President Biden’s Buy American Executive Order—Where Are We Now?