A proposed amendment to the Federal Acquisition Regulations (“FAR”) published on July 30, 2021 will “strengthen the impact of the Buy American Act” (“BAA”) over the next eight years, according to the Federal Register notice. Federal contractors and subcontractors were put on notice of coming proposed changes in January when President Biden issued Executive Order (“EO”) 14005 revoking or superseding multiple EOs issued by the Trump Administration. The Proposed Rule arising from Section 8 of EO 14005 would alter and build upon existing requirements of the BAA. The Proposed Rule includes immediately higher domestic content thresholds that will increase over time, price preference enhancements for “critical” items, and contractor reporting of domestic content within 15 days of an award to the newly created Made in America Office of the Office of Management and Budget (“OMB”). The new proposed Buy American restrictions will not apply to acquisitions subject to various trade agreements under the Trade Agreements Act.

Continue Reading Proposed FAR Amendments to Buy American Act Increases Competition for Federal Contracts and the Supply Chain

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:

Continue Reading Biden Administration Issues Additional Guidance on the Made in America Waiver Process

Under the Christian Doctrine, prime contractors face the risk of having a court or a board of contract appeals read a clause into their contracts, even if it was omitted from the contract that they signed. In this entry we discuss whether the Christian Doctrine applies to subcontractors.

The Christian Doctrine is almost certainly inapplicable to subcontractors. For the reasons why, consider the decision in Energy Labs, Inc. v. Edwards Engineering, Inc., (N.D. Ill. June 2, 2015). A subcontractor contracted to manufacture and deliver HVAC systems for the Chicago Transit Authority. In its own contract, the prime contractor certified that the HVAC system would comply with the Buy America Act. But the prime contractor failed to flow the requirement down to the HVAC manufacturer, which planned to manufacture the units in Mexico. After learning that the plan to manufacture the units in Mexico would not meet the Buy America requirement, the prime contractor canceled the order and purchased the units from another manufacturer.

The original manufacturer sued for breach of contract. In its motion to dismiss, the prime contractor made two arguments. The subcontract was “illegal” because it omitted the Buy America requirement. Or it was legal only because the Christian Doctrine meant that the Buy America requirement was read into the subcontract by operation of law. The court rejected both arguments. There was nothing “illegal” about the prime’s failure to include a Buy America requirement in the subcontract. And there was no basis to read the requirement into the subcontract through the Christian Doctrine. “The Christian doctrine . . . was intended to apply to contracts between the federal government and government contractors, not to subcontracts.”

This result is consistent with our experience.
Continue Reading Does the Christian Doctrine apply to subcontractors?

President Obama’s proposed jobs bill could have a substantial impact on a construction industry that continues to weaken as Recovery Act funding dries up. The bill offers $447 billion in federal funding, much of which is devoted to infrastructure spending in the education, transportation, and housing industries. It would further delay the 3% withholding tax on government contractors and establish a national infrastructure bank to facilitate long-term investment in infrastructure projects. It also carries some restrictions. Although it is far from clear that the bill will make it through Congress, some of its provisions bear further consideration.
Continue Reading Getting past the politics of the American Jobs Act of 2011

Title 41 of the U.S. Code holds many of the key laws governing contracts with the federal government. A four-year effort to organize this collection of public contract laws and remove “ambiguities, contradictions, and other imperfections” was completed on January 4, 2011. The President’s signature on Public Law No. 111-350, 124 Stat. 367 (Jan. 4, 2011) [pdf] has the effect of renumbering the entirety of Title 41 and giving new section numbers to many of the most important government contract laws.


Continue Reading What happened to the Contract Disputes Act?

The False Claims Act encourages individuals with knowledge of fraud against the Government to file a court action seeking damages for the fraud.  It does this by promising a bounty. The relator receives a percentage of the amount recovered in a false claims case.  But there is a constant tension between encouraging plaintiffs to bring cases alleging fraud and protecting defendants from frivolous cases. The January 11, 2011 decision in United States ex rel. Folliard v. Hewlett-Packard Co. illustrates how the requirement that a plaintiff include all of the details of an alleged fraud in the initial complaint helps strike this balance.


Continue Reading Hewlett-Packard and the need for “particularity” in qui tam cases