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As we previously discussed in a 2019 blog post, since 2018 Bass, Berry & Sims Government Contracts and Litigation attorneys have successfully defended B&O JV in a host of challenges to an 8(a) small business set-aside award by the Federal Law Enforcement Training Center (FLETC).  On May 20, 2021, the Federal Circuit gave our client and team yet another win when it denied a request for a rehearing filed by Safeguard Base Operation, LLC, a disappointed offeror that included in the joint venture the prior incumbent.

Over the past three years, we have successfully defended B&O JV against over half a dozen challenges to the award filed by Safeguard.  Our team’s undefeated record includes:

Safeguard’s primary complaint was that it had been improperly excluded from the competition for failure to include plug numbers provided by FLETC for service work request Contract Line Item Numbers (CLINs).  When multiple potential offerors submitted questions about a potential ambiguity, FLETC included the plug numbers in its answers that were incorporated into the RFP in an amendment and instructed offerors to include those amounts in the applicable CLINs.  Safeguard, however, did not follow this instruction.  Safeguard also alleged that FLETC had breached an implied-in-fact contract to fairly and honestly consider its proposal.

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Continue Reading Bleak House Redux: Another Federal Circuit Win in Protracted Protest Litigation

On April 27, President Biden issued an Executive Order (EO) on Increasing the Minimum Wage for Federal Contractors raising the minimum wage for federal contractors, covered subcontractors, and lower-tier subcontractors by 27% from $10.95 to $15.00.

President Biden perhaps signaled his intent to make this increase on his first day in office, directing the Office of Personnel Management (OPM) in one of his first EOs to provide a report with recommendations to promote a $15.00 an hour minimum wage for federal employees.  After the changes directed by this EO go into effect, the minimum wage applicable to government contractor employees will be more than double the generally applicable federal minimum wage rate.

While the federal minimum wage is $7.25 an hour, in 2014 President Obama issued an EO that increased the rate required for employees of federal contractors to $10.10 and indexed it to inflation (it is currently $10.95).  The $15.00 minimum wage is a rate widely discussed by members both of Congress and the Biden Administration as a potential floor for the generally applicable minimum wage, but that proposal does not appear to have sufficient congressional support to make that legislative change.  It was initially included in the recent $1.9 trillion COVID-19 relief legislation, but it was not included in the final package.

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Continue Reading Government Contractors Once Again Used as Lab Rats for Higher Minimum Wage Requirements

We are looking forward to participating in Solvability’s GovCon Summit 2021 of which the firm also serves as a sponsor. This year’s GovCon Summit will provide tactics and strategies from the nation’s top GovCon professionals that have helped thousands of companies win government contracts.

Attendees of GovCon Summit 2021 will learn how to increase revenue…

To protect the U.S. industrial base, among other reasons, companies that sell goods to the U.S. government are required to comply with domestic source restrictions that dictate the percentage of domestic content and have the potential to impact design, sourcing, and manufacturing decisions. In many respects, these restrictions are out of step with the decades-long trend toward globalization of commercial supply chains.

Recent developments related to the Buy American Act continue to tighten these restrictions and have the potential to cause a further divergence between commercial and government production, reversing the push toward commercial contracting and eliminating the associated efficiencies and cost-savings to U.S. taxpayers.

Please join us Wednesday, March 24, 2021 at 12:00 – 1:00 p.m. CT / 1:00 – 2:00 p.m. ET
for this timely webinar where government contracts attorneys at Bass, Berry & Sims will discuss the current state of affairs, including the following:

  • Overview of the Buy American Act.
  • Implementation and impact of EO 13881’s changes to the Buy American Act.
  • President Biden’s EO on “Ensuring the Future is Made in All of America by All of America’s Workers.
  • Takeaways for government contractors.

Please join us Wednesday, March 24 from 12:00 – 1:00 p.m. CT | 1:00 – 2:00 p.m. ET for this informative discussion. To register, please click here.

Who Should Attend?

We are looking forward to presenting a training webinar titled, “The Federal Government’s Continuing IT Upgrade – Changes in Cloud Computing & Cybersecurity” for the Maryland Procurement Technical Assistance Center (Maryland PTAC). The US government, the largest purchaser of goods and services in the world, is in the midst of an IT revolution. Much of…

To protect the U.S. industrial base, among other reasons, companies that sell goods to the U.S. government are required to comply with domestic source restrictions that dictate the percentage of domestic content and have the potential to impact design, sourcing, and manufacturing decisions.  In many respects, these restrictions are out of step with the decades-long trend toward globalization of commercial supply chains.

Two recent developments, the implementation of former President Trump’s July 15, 2019, Executive Order 13881, Maximizing Use of American-Made Goods, Products, and Materials, and President Biden’s January 25, 2021, Executive Order 14005, Ensuring the Future is Made in All of America by All of America’s Workers, continue to tighten these restrictions. These requirements have the potential to cause a further divergence between commercial and government production, reversing the push toward commercial contracting and eliminating the associated efficiencies and cost-savings to the U.S. taxpayers.

Overview of the Buy American Act

The Buy American Act (BAA), 41 U.S.C. §§ 8301-8305, provides a price preference for goods sold to the U.S. government that are deemed to be “domestic end products.”  To qualify for that designation, a product has to be both manufactured in the United States and the majority of its components have to be sourced domestically.  For decades prior to the January 2021 final rule, the domestic component, or content, requirement, was set at 50%.  In addition, that domestic content requirement was waived for all commercial-off-the-shelf (COTS) items.

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Continue Reading Heightened Buy American Act Requirements Are Here and More Are on the Way

I’m looking forward to participating in a panel session at the 2021 Tennessee Procurement Opportunities Conference presented by the Tennessee Procurement Technical Assistance Center (PTAC) and Tennessee Small Business Development Center. I will join other industry panelists for a discussion focusing on best practices for teaming in government contracting.

The program will also feature:

  • Judy

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Last month, the U.S. Court of Appeals for the Federal Circuit’s (Federal Circuit) opinion in The Boeing Co. v. Secretary of the Air Force shed additional light on the technical data rights of contractors under defense contracts. The decision hinges on the fact that technical data provided by a contractor to the government remains the property of the contractor. Additionally, contractors retain certain rights in connection with technical data even when the government has so-called “unlimited rights” to use it.

Case Background

In this case, Boeing held two contracts with the U.S. Air Force (USAF) for work on the F-15 Eagle Passive/Active Warning Survivability System. The contracts included the requirement for delivery of technical data to the USAF with Unlimited Rights and the DFARS 252.227-7013, non-commercial technical data rights clause (Subsection 7013). The parties did not dispute that Boeing retained ownership of technical data delivered to the USAF under the contracts, but Boeing contended that its legends on the technical data were intended to protect its rights as they pertained to third parties. Namely, putting third parties on notice of the proprietary nature of the data and directing that “Non-US Government Entities May Use and Disclose Only As Permitted In Writing By Boeing Or By The US Government.” The USAF rejected the data deliverables marked in this manner, finding them nonconforming and Boeing requested a final Contracting Officer’s decision on the matter.

The Contracting Officer’s final decision confirmed that the USAF was correct in rejecting the legends and directed Boeing to correct them. Boeing appealed the decision to the Armed Services Board of Contract Appeals (ASBCA) on the ground that Boeing’s legend was “not nonconforming” under Subsection 7013(f) since its legend did not address restrictions on government rights, only third-party rights. The ASBCA, ruling on the motion for summary judgment, disagreed, siding with the USAF’s position that only the legends listed in Subsection 7013(f) are authorized and Boeing’s legend was not one of those. Boeing appealed this decision to the Federal Circuit.

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Continue Reading Federal Circuit Confirms DoD Contractor’s Expanded Restrictions on Non-Government Parties Rights in Data

On September 24, the Government Accountability Office (GAO) denied DynCorp International, LLC’s (DynCorp) protest of the Department of the Army’s award of a global intelligence logistics support task order to CACI Technologies, Inc. (CACI, Inc.). DynCorp alleged that the award was improper, citing the fact that CACI, Inc. no longer existed as a corporate entity. Additionally, DynCorp challenged the Department of the Army’s evaluation of the proposals submitted. The GAO rejected both of DynCorp’s arguments and found the task order’s award to CACI, Inc. proper.

Conversion to Limited Liability Company Affects Bid

While the GAO’s decision has the familiar discussion regarding the weight and comparison of proposal elements, its examination of CACI, Inc.’s corporate entity change and how that affects the bid process is particularly noteworthy as the Federal Acquisition Regulation (FAR) is silent on this issue. In this case, CACI Technologies, Inc. was awarded a GISS IDIQ contract in September 2014 under the CAGE code 8D014. On December 31, 2017, CACI Technologies, Inc. converted to CACI Technologies, LLC (CACI, LLC) while retaining the same CAGE code as the former entity.

After the conversion to a limited liability company, CACI, LLC worked with the Defense Contract Management Agency (DCMA) to effect a name change, per FAR 42.1205. CACI, LLC reached an agreement with DCMA on the terms of a conversion and name change by March 2018, but the agreement was not approved and finalized by DCMA until April 2020. In the interim between CACI, LLC’s conversion and when DCMA approved the name change and conversion, CACI, LLC bid on the Department of the Army contract at issue.

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Continue Reading Now You See Me, Now You Don’t: What Happens When a Bidder’s Corporate Entity Changes during a Bid?

This is a continuation of our series addressing ways companies can protect themselves during government enforcement actions related to COVID-19. For more information, see our previous articles focused on general corporate best practices, the health care industry and public companies.

The economic disruptions wrought by the COVID-19 pandemic have been particularly acute for government contractors. State quarantine measures and the closure of both contractor and government worksites meant many contractors were unable to perform ongoing contracts, thus risking a lapse in payment and the need to lay off or furlough workers. To mitigate this risk, Congress passed §3610 as part of the March 27, 2020 Coronavirus Aid, Relief, and Economic Security Act (CARES Act). That brief provision gives federal agencies authority to reimburse contractors for paid leave to employees who are unable to work due to the pandemic. The Department of Defense (DoD)—which obligated by far the most funds pursuant to §3610—has issued guidance, instructions, and regulations clarifying eligibility for relief and the procedures contractors must follow in order to be reimbursed. Eligible contractors should be mindful of this guidance, summarized below, and carefully monitor ongoing developments.

Section 3610: the Legislative Language

Section 3610 of the CARES Act gives agencies discretion (which they are not required to exercise) to “reimburse, at the minimum applicable contract rates (not to exceed an average of 40 hours per week) any paid leave, including sick leave, a contractor provides to keep its employees or contractors in a ready state” between January 31, 2020 through Sept. 30, 2020—which Congress recently extended to Dec. 11, 2020. Importantly, the maximum reimbursement authorized under §3610 must be reduced by the amount of credit a contractor is allowed under the Family and Medical Leave Act or any applicable credits a contractor already receives under the CARES Act. Beyond these general principles, the legislative language leaves much of the detail to be worked out by individual agencies. For example, the legislation authorizes agencies to reimburse at the “minimum applicable contract billing rates,” a term that is not defined, but only if the employees cannot perform work at a site that has been “approved by the Federal Government” without guidance on what such approval entails.

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Continue Reading Important Considerations for DoD Contractors Seeking Relief Under §3610 of the CARES Act