On February 19, the Office of Hearings and Appeals (OHA) denied an appeal from an unsuccessful bidder who argued the awardee was large due to an acquisition that occurred while the award was pending. OHA found that Small Business Administration (SBA) regulations prohibit awards to concerns where a merger or acquisition occurs, resulting in the new business becoming “large,” within 180 days of the initial offer rather than a final proposal revision. This understanding follows the general rule that SBA determines a concern’s size as of the date of the initial offer. We explore the decision and its implications below.Continue Reading SBA’s OHA Finds Initial Offer To Be Of Consequence, Not Final Proposal Revision, for the “180-Day Rule”
Government Contracts
Fourth Circuit Terminates Maryland District Court’s DEI Injunction
On March 14, the U.S. Court of Appeals for the Fourth Circuit granted the government’s motion for a stay pending appeal, terminating a Maryland district court’s injunction of certain elements of President Trump’s January 20 and 21 diversity, equity and inclusion (DEI) executive orders (EO), “Ending Radical and Wasteful Government DEI Programs and Preferencing” and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” We wrote about the district court’s injunction here and here.Continue Reading Fourth Circuit Terminates Maryland District Court’s DEI Injunction
Department of Defense Issues Affirmative Action Class Deviation
Following U.S. General Services Administration’s (GSA) lead, which we wrote about here, on March 4, the Department of Defense (DoD) issued a Class Deviation—Restoring Merit-Based Opportunity in Federal Contracts—directing DoD Contracting Officers (COs) to “remove, replace, and not enforce Federal Acquisition Regulation (FAR) solicitation provisions and contract clauses associated with Executive Order (EO) 11246, Equal Employment Opportunity.”Continue Reading Department of Defense Issues Affirmative Action Class Deviation
Ethics Rules Applicable to Hiring Former Federal Government Employees
As the Trump administration continues to eliminate federal positions and reduce contract and grant outlays, many private companies will likely be eyeing current and former government employees for employment over the coming months. However, companies looking to hire former government employees must keep in mind the strict and nuanced rules that govern their hiring, and, in some cases, prohibit contractors from paying former government employees and limit their ability to appear before their former agencies. Continue Reading Ethics Rules Applicable to Hiring Former Federal Government Employees
Executive Order on Federal Contracting Transparency: Potential Challenges and Implications
A new executive order is set to reshape federal contracting by implementing more stringent transparency measures, but it may also create significant challenges for both government agencies and contractors.Continue Reading Executive Order on Federal Contracting Transparency: Potential Challenges and Implications
Judge Denies Government’s Motion to Stay Injunction of Anti-DEI Executive Orders
By Richard Arnholt on
On March 3 Judge Abelson of the U.S. District Court for the District or Maryland denied the government’s motion for a stay pending appeal of the preliminary injunction halting the termination of equity-related federal grants and contracts and stopping the imposition of new diversity, equity and inclusion (DEI)-related certification requirements in federal agreements, among other actions required by President Trump’s DEI-related Executive Orders 14151 and 14173. Continue Reading Judge Denies Government’s Motion to Stay Injunction of Anti-DEI Executive Orders
America First Investment Policy Sets Sights on China
On February 21, the Trump Administration released the America First Investment Policy (the memo or memorandum). The wide-ranging memo formally targets investment from the People’s Republic of China, including Hong Kong and Macau (collectively, the PRC), in sensitive U.S. sectors, modifies aspects of the Committee for Foreign Investment in the United States (CFIUS) process, and proposes new restrictions on outbound investment. Continue Reading America First Investment Policy Sets Sights on China
Executive Order Directs Systematic Review of “Covered Contracts and Grants” For Possible Termination
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
By Richard Arnholt on
Posted in Government Contracts, Labor & Employment
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