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.
Continue Reading LPTA Out, Fixed Price Contracts In
UPDATE: Civilian Task Order Protest Jurisdiction Already Restored, DoD Task Order Threshold Likely to Increase Soon
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.
Continue Reading UPDATE: Civilian Task Order Protest Jurisdiction Already Restored, DoD Task Order Threshold Likely to Increase Soon
Legislation Restores GAO Civilian Task Order Protest Jurisdiction (for Good this Time?), But Introduces New Differences Between DoD and Civilian Task Order Jurisdiction
On December 8, 2016, the Senate passed the National Defense Authorization Act (NDAA) of 2017 previously passed by the House, and the legislation is pending President Obama’s signature. Once signed, Section 835 of the NDAA will restore and make permanent the Government Accountability Office’s (GAO) jurisdiction to hear civilian agency task order protests. In addition, the NDAA will increase to $25 million the jurisdictional threshold for task orders issued by the Department of Defense (DoD).
From the enactment of the Federal Acquisition Streamlining Act in 1994 through 2008, jurisdiction over task order protests at the GAO and the Court of Federal Claims (COFC) was limited to allegations that a task order increased the scope, period or maximum value of the underlying contract. Responding in part to agencies’ increasing reliance on task orders, the 2008 NDAA extended GAO’s protest jurisdiction, but not COFC’s, to include protests of task orders awards over $10 million on other grounds, but provided that the subsection expired in May 2011. The 2012 NDAA extended the GAO’s jurisdiction over civilian agency task orders, but only through September 30, 2016.Continue Reading Legislation Restores GAO Civilian Task Order Protest Jurisdiction (for Good this Time?), But Introduces New Differences Between DoD and Civilian Task Order Jurisdiction
National Security in the Trump Era Is Focus of Reagan Defense Forum
Recently, I discussed contracting financial burdens in an article for National Defense Magazine outlining the potential for the new Trump administration to alleviate some regulations to lure new businesses into the government contract industry. As I point out in the article, “contracting regulations in recent years have added hundreds of millions of dollars in costs
Congressional Reference Cases
We authored a chapter in the Court of Federal Claims: Jurisdiction, Practice, and Procedure, a comprehensive treatise focused exclusively on practice before the United States Court of Federal Claims, with detailed discussion and analysis of all areas of the court’s jurisdiction. Our chapter was titled, “Congressional Reference Cases”, which discusses the unique role the
DOL Oversteps Overtime Regulations
Just one month after the U.S. District Court for the Eastern District of Texas shut down a Fair Pay and Safe Workplaces final rule, the District Court has enjoined the implementation of the Department of Labor’s (DOL) final rule updating its Fair Labor Standard Act (FLSA) exemptions. Had these gone into effect, they would have had a significant impact on government contractors’ labor costs.
In 2014, President Obama directed DOL to update and modernize its overtime regulations to be consistent with the intent of the FLSA. The FLSA provides for minimum wage and overtime pay protections for those covered by the Act. Exempted employees generally fall into the executive, administrative and professional (EAP) categories, and DOL has used the following three tests to determine whether an exemption applied: salary basis test, salary level test and duties test. “Exempt” employees are not eligible for overtime pay (time and a half) for hours worked over 40 in a work week.Continue Reading DOL Oversteps Overtime Regulations
Iran on Your Mind? The FAR Should Be, Too.
Over the past year, the big news for companies doing or considering business in Iran has been the scaling back of U.S. and EU economic sanctions. Many global businesses are now permitted to operate in this once prohibited market. Before we celebrate too enthusiastically, however, let’s stop for a moment to consider a potential challenge for some companies trying to capitalize on this new opportunity.
This time, we are focusing on a conundrum specific to companies that contract with the U.S. government.Continue Reading Iran on Your Mind? The FAR Should Be, Too.
Fair Pay and Safe Workplaces Not “Fair” to Contractors, According to Texas Judge
On October 24, 2016, U.S. District Judge Marcia Crone granted a preliminary injunction to halt the implementation of the “Fair Pay and Safe Workplaces” Executive Order 13673 (EO 13673), implementing provisions of the Federal Acquisition Regulation (FAR) in the final rule, and Department of Labor (DOL) guidance that impose new reporting requirements on contractors regarding labor law violations.
Continue Reading Fair Pay and Safe Workplaces Not “Fair” to Contractors, According to Texas Judge
Event: Expansion of the SBA Mentor/Protégé Program
I will be in Knoxville today presenting at the 2016 GovCon Seminar hosted by Strategic Consulting Solutions and PDS Consulting Services. My session will be focused on the expansion of the Small Business Administration’s Mentor/ Protégé Program. Specifically, I will discuss how the recent program expansion is creating opportunities for contractors, large and small. The
A “Starry” Saga: Protester Prevails After Four Protests and an Overturned Solicitation Cancellation
On July 27, 2016, the U.S. Court of Federal Claims held that the U.S. Department of Health and Human Services (HHS) was unreasonable in cancelling its solicitation for on-site operational support for the HHS Unified Financial Managements System (UFMS). The decision, Starry Associates, Inc. v. United States, is unusual, given that the Government Accountability Office (GAO) and the Court of Federal Claims are typically reluctant to oppose an agency’s decision to cancel a solicitation. The decision serves as a useful reminder that such discretion is not unfettered and will be overturned where it is arbitrary and capricious.
Continue Reading A “Starry” Saga: Protester Prevails After Four Protests and an Overturned Solicitation Cancellation