On April 18, President Trump signed the “Presidential Executive Order on Buy American and Hire American” (the Order), which declares the Executive branch’s policy to buy American goods and rigorously enforce and administer laws governing entry into the United States of workers from abroad. The Order is keeping with President Trump’s campaign promises regarding hiring American workers and promoting U.S. manufacturing, and signals a renewed focus on domestic sourcing requirements as well as the likelihood of greater restrictions on work visas for non-U.S. citizens.
In an article published by Law360, I provided expanded insight on a U.S. Government Accountability Office (GAO) jurisdiction gap that occurred between October 1 and December 14, 2016, due to a legislative oversight. During this lapse, there was no venue with jurisdiction to hear protests of civilian agency task order awards. Congress has now given GAO permanent jurisdiction, but recent rulings dealing with the lapse have made clear that the legislation will not be applied retroactively. I suggest that now “that the GAO’s jurisdiction to hear protests of both civilian and DOD task order protests is permanent, albeit set at different thresholds, it is unlikely that such lapses will occur again anytime soon.”
The full article, “An Update On Aftermath Of GAO Jurisdiction Gap,” was published by Law360 on April 6, 2017, and is available online.
Additional insights can be found in my earlier blog post on the topic, “Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively,” published on March 20, 2017.
As we previously reported, Congress has taken its final steps in repealing Obama’s Fair Pay & Safe Workplaces rule, one of the most controversial rules enacted by the Federal Acquisition Regulatory (FAR) Council under President Obama. On February 6, the Senate gave the final vote of approval of the House Resolution overturning the rule, and on March 27, President Trump, unsurprisingly, signed the Resolution into law. At the same time, he also signed legislation overturning three other rules, including the U.S. Bureau of Land Management’s land use planning rule and two rules issued by the U.S. Department of Education. Though much of the Fair Pay rule had never been implemented due to a court injunction, this legislation formally revokes the rule and ensures that the FAR Council cannot enact a similar rule without Congressional approval.
As we previously reported here and here, between October 1 and December 14, 2016, the Government Accountability Office (GAO) lacked jurisdiction to hear most civilian agency task order protests (its jurisdiction over protest of Department of Defense (DoD) task order awards was unaffected by the lapse). On December 14, President Obama signed legislation reinstating GAO’s jurisdiction over protests of civilian task orders greater than $10 million. He subsequently signed the National Defense Authorization Act (NDAA) of 2017, which raised the threshold for DoD task order protests from $10 to $25 million.
As we previously reported, following the start of the Trump Administration, Congress has moved aggressively to overturn regulations passed in the final days of the Obama Administration through the rarely-used powers in the Congressional Review Act (CRA). This focus on CRA actions, which is in keeping with the Trump Administration’s broader goal of eliminating costly regulations, has taken time and attention in the early days of the 115th Congress because the CRA gives Congress a limited amount of time to reverse regulations. One of the rules that has been targeted for elimination is the Fair Pay & Safe Workplaces rule, a rule subject to much debate and controversy since its enactment in August 2016. Recent Senate action makes it likely that the rule, which would have imposed billions of dollars in costs on taxpayers over the next decade, will be eliminated next week.
On February 2 the House of Representatives passed House Joint Resolution 37, which would nullify the Fair Pay & Safe Workplaces rule issued on August 25, 2016. If the identical pending joint resolution is passed by the Senate, S. J. Res. 12, and signed by the President, the entire rule will have no force and effect and no similar regulation could be issued in the future without express Congressional authorization. The legislation did not reverse the accompanying Department of Labor guidance or the underlying Obama Executive Order, but both would also be effectively nullified by voiding the regulation.
In an article published by Law360, I provided insight examining the Government Accountability Office’s (GAO) rejection of bid protests questioning an unusual contracting model based on point-scoring that emphasized technical factors over cost. In this case, the General Services Administration (GSA) awarded a $65 billion IDIQ contract for IT services, Alliant II, to 60 of the highest rated offerors by first ranking offerors technically and then determining if the top 60 offerors’ prices were fair and reasonable. As I point out in the article, “[y]ou want companies that are on the cutting edge of IT services … you want the guys that really know their stuff. If you think about the fact that these providers on Alliant II are likely going to be called into agencies to help them deal with cybersecurity issues that go far beyond IT, into national security, we want the best IT service providers in the country to be on this contract.”
The full article, “GAO Opens Door For More Point-Scored Contracts,” was published by Law360 on January 30, 2017, and is available online (subscription required).
In an article published by BNA’s Federal Contracts Report, I discussed three of the most costly of President Obama’s 2016 Executive Orders impacting government contractors, orders that are likely to be overturned by President-elect Trump. In the article, I argue that, while the Executive Orders – Fair Pay and Safe Workplaces, Minimum Wage, and Sick Leave – may have been intended to improve the federal acquisition process, they place expensive and burdensome compliance obligations on contractors, particularly those providing commercial goods and services, and may therefore be amended or overturned. In total, the Obama Administration estimated the regulations implementing just these three Executive Orders would cost $12 billion over the next decade, costs that will ultimately be borne by taxpayers, and there is reason to believe that estimate is low.
The full article, “The (Hopefully) Short, Costly Life of President Obama’s Executive Orders,” was published by BNA’s Federal Contracts Report on January 19, 2017, and is available online (subscription required) or in the PDF below.
I also provided comments on this topic for a February article in BNA’s Federal Contracts Report, “Executive Orders: Contractors in Regulatory Limbo Under Trump, Lawyers Say.” That article was published February 2, 2017 and is available online.
The National Defense Authorization Act for Fiscal Year 2017 (FY17 NDAA), signed into law by President Obama on December 23, includes limitations on a low price evaluation methodology and a preference for fixed price contracts that could have a significant impact on the way the Department of Defense (DoD) procures goods and services in the coming years. The FY17 NDAA also featured changes to the task order protest jurisdiction, which we outlined in this blog post.
As we reported on December 14, 2016, on December 8, the Senate passed the National Defense Authorization Act (NDAA) of 2017, which calls for changes to the Government Accountability Office’s (GAO) jurisdiction over civilian agency and Department of Defense (DoD) task order protests. The President has yet to take action on the NDAA. Separate legislation has, however, already restored GAO’s protest jurisdiction over civilian task orders valued above $10 million, leaving only the issue of the threshold for DoD task order protests contingent on the fate of the 2017 NDAA.