In March, we wrote about how we still were awaiting guidance from the White House about how the Made in America Office’s waiver process would work under President Biden’s January 25, 2021 EO 14005, Ensuring the Future is Made in All of America by All of America’s Workers. This month, the White House released its initial guidance on the new waiver process, identifying four main areas of implementation:
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.
President Biden’s newly released Executive Order on Improving the Nation’s Cybersecurity represents a comprehensive approach to tackling cybersecurity threats in the U.S. and will likely result in new FAR and DFARS contract requirements. It represents the next step towards the inclusion of mandatory breach notifications in government contracts following widespread speculation that breach notification requirements were on the horizon.
On June 1, 2021, the Biden-Harris Administration announced that it intends to use the federal government’s purchasing power to grow federal contracting with small disadvantaged businesses by 50 percent, translating to an additional $100 billion over five years. This is one of many new steps intended to help narrow the racial wealth gap and reinvest in communities. In explaining this new policy goal, the Administration recognized that:
For years, I have been blogging and speaking about the very real and very serious civil and potential criminal consequences of a failure to comply with the Davis Bacon Act. Every once in a while, a case comes along that drives those points home. One such case – involving criminal convictions for wire fraud and conspiracy to commit wire fraud in connection with what appears to be a blatant failure to comply with Davis Bacon Act requirements – is the recent decision in United States v. Estepa, No. 19-12272 (11th Cir. May 25, 2021).
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.
Breaking into federal government contracting can be daunting. There are ever-changing compliance obligations to consider and complex bidding and proposal submission requirements to navigate. An entire industry of sales consultants, proposal writers, and lobbyists promising to help tap into the $600 Billion plus federal marketplace are only a Google search away. Engaging the services from one of these firms is generally allowed, but there are restrictions. This post deals with one of those restrictions—the Covenant Against Contingent Fees (FAR 52.203-5) which restricts how government contractors pay third-party sales agents.
In an unusual turn of events, the SBA Office of Hearings and Appeals (OHA) recently reversed course and granted a Petition for Reconsideration in a case involving a challenge to the Service-Disabled Veteran-Owned Small Business (SDVOSB) status of a company. (CVE Protest of Blue Cord Development Group, LLC, SBA No. CVE-188-P (2021)) After initially determining that the company was not controlled by service-disabled veterans because the relevant manager lacked the necessary control and experience, OHA granted the Petition for Reconsideration and overturned that determination.
The Small Business Administration’s HUBZone program provides federal contracting assistance for qualified small business concerns located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas. The Small Business Administration defines HUBZones and publishes a map identifying the location of all HUBZones. Certified businesses located in a HUBZone are eligible to participate in the HUBZone program goal of awarding at least three percent of federal contract dollars.
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.