Federal Acquisition Regulations (FAR)

We have addressed on this blog questions relating to jurisdiction at the GAO, Court of Federal Claims (CFC), and district courts to hear suits relating to awards using the government’s Other Transaction (OT) authority. Multiple agencies now have this OT authority, which was first conceived by the principal architect of the 1958 NASA authorizing statute, Paul Dembling, who included in that legislation a catchall authorizing “other transactions as may be determined as necessary in the conduct of its work and on such terms as it may been appropriate.” Continue Reading Welcome Clarity Regarding the Ability to Challenge Other Transaction Follow-On Production Awards  

On May 3, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) that would prohibit executive agencies from procuring electronic goods and services incorporating semiconductor products and services from certain named companies and others affiliated with the governments of U.S. adversaries. Continue Reading FAR Council Announces Proposal to Ban Government Purchases and Use of Certain Semiconductors

On June 21, the Department of Homeland Security (DHS) published a final rule to implement security measures that safeguard controlled unclassified information (CUI) from unauthorized access and disclosure and improve incident reporting.  Continue Reading DHS Publishes Long-Awaited Final Rule on Controlled Unclassified Information

On December 27, President Biden signed the Preventing Organizational Conflicts of Interest in Federal Acquisition Act into law. The legislation, ushered through Congress by a bipartisan group of backers, strengthens existing regulations around federal contractor conflict of interest mitigation and provides new requirements for agencies to follow to sniff out potential conflicts of interest. Continue Reading New Legislation Strengthens Disclosure Requirements for Potential Organizational Conflicts of Interest

Following the Federal Acquisition Regulatory (FAR) Council’s proposed rule requiring federal contractors to disclose climate emissions, I was quoted in a Government Executive article offering perspective on the proposal from leaders in the contracting community.
Continue Reading Government Executive Article on Proposed Climate Reporting Rule

The Department of Defense (DOD) recently issued a final rule implementing Section 828 of the NDAA for Fiscal Year (FY) 2018, requiring the treatment of the majority of contracts for items awarded using Federal Acquisition Regulation (FAR) part 12 acquisition procedures to serve as a prior commercial item determination (CID).
Continue Reading DOD Publishes Final Rule Redesignating Contracts Previously Awarded Under FAR Part 12 Guidelines as Commercial Item Determinations (CIDs)

On December 8, 2021, President Biden issued Executive Order (EO) 14057 “Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.” The EO is the administration’s most recent effort to achieve “a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050.”

Federal agencies, government suppliers, and American businesses are urged to embrace the administration’s sustainability objectives and attain cleaner and more sustainable operation standards.

Federal Sustainability Plan

The EO describes the Biden administration’s efforts to adopt green technology by focusing on five aspects.Continue Reading Biden’s “Clean Energy” Directive’s Impact on Government Contractors

While most federal procurements are conducted using the onerous regulations set forth in the Federal Acquisition Regulation (FAR) and agency supplements, agencies are increasingly relying on the more flexible, but lesser-known, Other Transaction Agreements (OTAs) to meet developmental requirements.  Congress has authorized only a limited number of agencies to use this authority, which was first included in NASA’s enabling legislation to ensure NASA had the flexibility to meets its unique needs.  The authority is further limited to use by “non-traditional” government contractors. It is generally restricted to prototype/development work, although agencies are authorized to enter into follow-on production contracts with OTA prototype participants.

Despite these limitations, the ability to customize intellectual property terms, among others, has led to a significant increase in the use of OTAs over the past decade.  In FY20 alone, the federal government entered into OTAs worth over $16 billion, including approximately $9 billion on COVID-19-related purchases.

But before a company pursues an OTA opportunity, it is essential to understand that ability to challenge OTA awards is limited.  In addition, jurisdictional questions have created considerable uncertainty for aggrieved contractors who wish to file a protest in connection with these agreements.  Although pre-and post-award protests challenging FAR-based procurements can only be heard at the Government Accountability Office (GAO) or the Court of Federal Claims (COFC), recent decisions indicate that jurisdiction to hear OTA challenges at both is extremely limited.  And in the past year, U.S. district courts have held that they too have limited jurisdiction that hinges on whether the issue involves a procurement contract—either current or future.Continue Reading The Black Hole of Protest Jurisdiction: Can I Challenge the Award of an “Other Transaction Agreement”?

Well, that was quick.  In four memos dated September 30 and October 1, contractors learned the terms of the contract provisions implementing the COVID-19 vaccine and masking requirements mandated by President Biden’s Executive Order (EO) 14042, discussed here, and the implementing guidance issued by the Safer Federal Workforce Task Force (Task Force) on September 24. In the next 10 days we expect to see most other agencies issue deviation memos similar to the General Services Administration (GSA) and Department of Defense (DoD) memos discussed below.

As discussed in this post, while the contract provisions, along with updated guidance from the Task Force, answer some of the open questions, contractors are still in the unfortunate position of rushing to ensure they are compliant with these requirements when the contract provisions apply to them without knowing the answers to some fundamental questions. Despite these open questions, companies have little time, for example, to ensure that covered employees are vaccinated by the December 8, 2021 deadline. After that deadline, any contractor that becomes subject to these requirements will have to ensure that on new contracts or options/extensions that incorporate the new clause, covered employees are fully vaccinated by the first day of performance, which of course is impossible unless contractors enforce these vaccine mandates in advance. That said, the memos do seem to clarify that compliance with the Task Force guidance will not be required for prime contracts solely for the manufacturing of products.

The FAR Clause

On September 30, the Federal Acquisition Regulation (FAR) Council issued a memo providing agencies with “initial direction” requiring the implementation of the Task Force guidance. It includes FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (OCT 2021) (Deviation), along with directions that agencies “expeditiously” issue class deviations to ensure that contracting officers can begin using the clause on or before October 15, 2021.Continue Reading And … They’re Off! Contractors Race to Comply Now that the COVID-19 Vaccination Deviations Have Arrived

I recently outlined the ever-growing list of compliance obligations for businesses that sell goods and services to the federal government in an article for Risk Management. “Some of the new regulatory requirements – such as obligations relating to cybersecurity and counterfeit parts – address challenges posed by an increasingly global, networked economy,” I explained in the article. “Others, such as the mandatory disclosure requirement, continue the trend of the government relying on third parties, whether it be whistleblowers or contractors themselves, to police the procurement system.”

To address the rising risk these complications pose, businesses should first ensure they have established an underlying compliance structure required by federal procurement regulations, as well as design effective training programs, translate the obligations into actionable policies, and effectively monitor adherence with those policies.Continue Reading Compliance Obligations for Government Contractors

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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