Over the first month of the new administration, President Trump has directed the review or termination of certain types of contracts and grants, including equity-related agreements, awards under the Inflation Reduction Act and the Investment and Jobs Act, and foreign aid agreements awarded by USAID. Those actions, while disruptive, have been limited to certain agreement types or agencies. Continue Reading Executive Order Directs Systematic Review of “Covered Contracts and Grants” For Possible Termination
COFC Decision Significantly Broadens OTA Bid Protest Jurisdiction
On February 24, Judge Armando Bonilla of the Court of Federal Claims (COFC) declined to dismiss a challenge to a $648 million award under a Missile Defense Agency (MDA) development deal, finding that the court had jurisdiction to review Other Transaction (OT) Authorities like the one at issue. For years, unsuccessful offerors have found it difficult to challenge OT award (OTA) decisions because both the GAO and COFC have found they have limited jurisdiction over these types of agreements.Continue Reading COFC Decision Significantly Broadens OTA Bid Protest Jurisdiction
DEI Executive Orders Enjoined by Maryland District Court
On February 21, the Maryland District Court issued an injunction prohibiting the administration from implementing requirements in Executive Order (EO) 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, and EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.Continue Reading DEI Executive Orders Enjoined by Maryland District Court
GSA Issues FAR Class Deviations Implementing DEI Requirements
On February 15, the U.S. General Services Administration (GSA) announced two new “class deviations” (CDs) making a number of changes to the procurement rules applicable to GSA solicitations and contracts, including leases of real property. Continue Reading GSA Issues FAR Class Deviations Implementing DEI Requirements
Fifth Circuit Delivers Boost to Presidential Authority Under the FPASA
On February 4, the Fifth Circuit Court overturned a September 2023 order from a Texas trial court finding President Biden lacked the authority under the Federal Property and Administrative Services Act (FPASA or Act) to increase the minimum wage for federal contractors to $15 per hour. A three-judge panel found the president was within his authority under FPASA to hike the minimum wage because the president subjectively determined the hike would benefit government contracting and the order was objectively compatible with the language of the statute. The breadth of presidential authority under FPASA has recently become a hotly contested legal issue. The Fifth Circuit decision adds another circuit court weighing in on an issue that has already split the Ninth and Tenth circuits, increasing the likelihood that the Supreme Court weighs in.Continue Reading Fifth Circuit Delivers Boost to Presidential Authority Under the FPASA
Can the NIH Cap Indirect Cost Rates at 15%?
Note: This post was updated with new information on February 13, 2025.
On February 7, the National Institutes of Health (NIH) issued Supplemental Guidance to its 2024 NIH Grants Policy Statement, Indirect Cost Rates, purporting to cap indirect cost (also called facilities and administration, F&A) rates at 15% for all new grants issued as well as for go forward expenses for existing grants for educational purposes. The purported basis for the cap, which is a quarter or less of the indirect rate charged by many universities, hospitals, and other research institutions, is that 15% is in line with the rate permitted by a number of foundations. Continue Reading Can the NIH Cap Indirect Cost Rates at 15%?
Project Labor Agreements No Longer Mandated for Large Federal Construction Contracts
On January 21, in MVL, Inc., et al. v. United States, the U.S. Court of Federal Claims (COFC) struck down a 2022 Executive Order (EO), as well as the implementing Federal Acquisition Regulation (FAR), signed by then-President Biden that required government contractors to enter Project Labor Agreements (PLAs) in order to compete on federal construction projects valued at over $35 million.Continue Reading Project Labor Agreements No Longer Mandated for Large Federal Construction Contracts
DEI Developments: DOJ Issues Memo, “Ending DEI and DEIA Discrimination and Preferences”
As we reported previously, President Trump’s January 21 Executive Order (EO) 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” terminated certain affirmative action requirements applicable to government contracts and federally-funded construction contracts. The EO also mandates that new provisions be included in all government contracts and all grants, certifying that counterparties do not have diversity, equity and inclusion (DEI) policies that violate federal anti-discrimination law. We noted that, in absence of additional government guidance, there was some challenge in identifying what DEI programs may be permissible going forward.Continue Reading DEI Developments: DOJ Issues Memo, “Ending DEI and DEIA Discrimination and Preferences”
Additional Grant Pauses – Trump Administration Seeks to Maximize the Power of the Purse
In addition to the Trump administration’s general freeze on most grant funding, which was rescinded as well as enjoined by federal district courts in Rhode Island and Washington, D.C., the new administration yesterday took steps to halt funding to organizations and governmental entities that fail to comply with immigration and Education Amendments Act requirements. These additional measures, which will almost certainly face legal challenges, could cause further disruptions in federal funding to numerous jurisdictions and educational institutions, as well as to companies that provide goods and services to those entities under contracts funded by federal grants.Continue Reading Additional Grant Pauses – Trump Administration Seeks to Maximize the Power of the Purse
Bid Protest Minute: Understanding the Increased DoD/Coast Guard/NASA Task Order Protest Threshold
Generally speaking, the U.S. procurement system allows companies competing for U.S. government contracts broad rights to challenge contract awards, as well as the terms of solicitations. There are, however, restrictions applicable to challenging task orders awarded under indefinite-delivery/indefinite-quantity contracts that limit where such challenges may be filed and prohibit challenges below a certain threshold. Congress recently raised the threshold applicable to certain task orders, and it is important that any company competing for government task orders as part of a business capture strategy understand those rights and limitations.Continue Reading Bid Protest Minute: Understanding the Increased DoD/Coast Guard/NASA Task Order Protest Threshold