The GAO recently denied Leidos Innovations Corporation’s protest of a determination that Leidos was ineligible to receive a $272 million award by the U.S. Army despite Leidos having both the highest-rated technical proposal and the lowest evaluated cost. The GAO decision, which affirmed the agency’s determination that Leidos was non-responsible because one of Leidos’ subcontractors did not have the necessary base access, is an important reminder that prime contractors should thoroughly vet their subcontractors to ensure, to the extent possible, all necessary qualifications are satisfied for the associated contract.
Continue Reading Proposals are Only as Strong as their Weakest Link: GAO Affirms Non-responsibility Determination Based on Subcontractor’s Lack of Base Access
U.S. Government Guidance on Buy American Executive Order Could Signal Impending Headaches for Government Contractors
On April 18, 2017, Donald Trump signed a Presidential Executive Order on Buy American and Hire American (EO). As we reported at the time, Section 3 of the EO directed the heads of all federal agencies to, among other things: (1) assess the monitoring of, enforcement of, implementation of, and compliance with Buy American laws within their agencies; (2) assess the use of BAA waivers within their agencies; and (3) develop and propose policies to ensure federal funds maximize the use of materials produced in the United States. It also ordered the Department of Commerce (DOC) and the Office of Management and Budget (OMB) to issues guidance to agencies about how to comply with their obligations.
Continue Reading U.S. Government Guidance on Buy American Executive Order Could Signal Impending Headaches for Government Contractors
Buy American Executive Order Means Renewed Obligations for Government Contractors
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.
Continue Reading Buy American Executive Order Means Renewed Obligations for Government Contractors
An Update on Aftermath of GAO Jurisdiction Gap
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
Ding Dong the Regulation’s Dead! – Trump Finalizes Statutory Repeal of the Fair Pay and Safe Workplaces Rule
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.
Continue Reading Ding Dong the Regulation’s Dead! – Trump Finalizes Statutory Repeal of the Fair Pay and Safe Workplaces Rule
Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively
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.
Continue Reading Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively
Last Straw for the Fair Pay & Safe Workplaces Rule – Congress to Take Final Vote on Repeal
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.
Continue Reading Last Straw for the Fair Pay & Safe Workplaces Rule – Congress to Take Final Vote on Repeal
Congress Acts to Rescind the Already-Enjoined Fair Pay and Safe Workplaces Regulation and Other Last-Minute Obama Administration Rules
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.
Continue Reading Congress Acts to Rescind the Already-Enjoined Fair Pay and Safe Workplaces Regulation and Other Last-Minute Obama Administration Rules
Law360 Article Provides Insight on GAO Approval of Evaluation Methodology Focused on Technical Capability
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
BNA’s Federal Contracts Report Article Examines Costly Obama Executive Orders Likely to be Overturned by President-elect Trump
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