On August 3, 2021, the U.S. State Department Directorate of Defense Trade Controls (DDTC) issued an order laying out charges and imposing a monetary penalty of $6.6 million on Keysight Technologies, a U.S. technology and software company, for 24 alleged violations of the International Traffic in Arms Regulations (ITAR).  The ITAR are the primary U.S. regulations that control exports of defense articles, services, and technology, including software.

Keysight and DDTC settled the matter through a Consent Agreement that also requires Keysight to take specific compliance measures, including maintaining a designated compliance officer, for a period of three years.

We want to highlight three particular elements of this matter.

Continue Reading Export Enforcement Update: The Importance of Commodity Classification

The FAR Council recently published its proposed rule to implement a part of President Biden’s January 28, 2021 Executive Order No. 14005 (EO 14005), which dictated certain revisions to the Buy American Act (BAA) regulations. As discussed in our previous blog post, Section 8 of EO 14005 directed the FAR Council to consider the following:

  • Replacing the “component test” at FAR Part 25.
  • Increasing the threshold for domestic content.
  • Increasing price preferences for domestic end products.

The proposed rule addresses Section 8 of EO 14005 by proposing to do the following:

  • Increase the domestic content threshold instead of replacing the domestic content test (at least for the time being), with scheduled increases.
  • Permit a limited period during which U.S.-made end products meeting the current domestic content threshold (greater than 55%) will be considered “domestic end products” under certain circumstances.
  • Establish a list of critical products and critical components subject to additional price preferences and post-award reporting requirements.

Continue Reading Buy American Baby Steps: FAR Council Publishes Proposed Rule Implementing Part of President Biden’s Executive Order

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.

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.

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

This past January, the Department of Justice (DOJ) announced that procurement fraud recoveries comprised the second largest category of fraud recoveries in Fiscal Year (FY) 2020, a trend that continued from FY 2019. With last November’s announcement of DOJ’s intent to expand its Procurement Collusions Strike Force (PCSF), we expect to see a continued trend of heightened enforcement and recoveries by government agencies in FY 2021.

Please join us for this timely webinar where we will be joined by Lisa Rivera and Scott Gallisdorfer, attorneys at Bass, Berry & Sims whose practice focuses on False Claims Act Litigation to discuss the current state of affairs, including the following:

  • Enforcement update and issues to watch.
  • Overview of significant settlements in 2020.
  • New developments from PCSF.
  • Best practices to protect your company from fraud risks.

Please join us Wednesday, May 19 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

  • General counsel and other in-house legal personnel.
  • Chief compliance officers.
  • Risk managers.
  • Internal auditors.
  • DoD contractors and subcontractors.
  • Private equity professionals.
  • Management professionals.
  • Technology officers.
  • Supply chain/logistics managers.
  • Other in-house legal and compliance personnel of government contractors, financial institutions, aerospace and defense firms, and manufacturers.

Accreditation

Tennessee CLE
This program is pending approval for one hour General Tennessee CLE credit. Please provide your BPR number upon registration in order for Bass, Berry & Sims to report your participation to the Tennessee CLE Commission following the conference.

Other State CLE
Bass, Berry & Sims does not seek direct accreditation from states outside of Tennessee, but some states allow attorneys to earn credit through reciprocity or self-submission. Certificates of completion and other common supporting documents will be provided for use in jurisdictions outside of Tennessee.

Questions?

Submit your questions for presenters upon registration or email questions to Claire Krummenacher.

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 and profitability, increase contract win rates, grow teams strategically, broaden and deepen professional networks, establish a network of quality, high-caliber teaming partners, and develop the mindset necessary to succeed in complex and shifting environments.

We will also participate in the conference’s educational sessions. Richard will serve as a panelist on a session titled, “The Oprah Connection – Building the Team to Grow Your GovCon Business.” The session will focus on creating a successful culture for recruiting and retaining veteran entrepreneurs.

Todd will serve as a panelist on a session titled, “Protecting Your Innovation Investment: Data Rights and Intellectual Property,” alongside Carmine Denisco, CEO of Earmark Outsourcing, and Kirk Burton, Founder of Tight Loop Solutions.

Solvability’s GovCon Summit 2021 will be held virtually April 20-28, 2021.

I recently provided insights on export control law related to technology and research in a recent article in Chemistry World.  The article covers a recent settlement between Princeton University and the U.S. Commerce Department. Under the settlement, Princeton agreed to pay a fine for alleged export violations related to research sent to foreign facilities in 15 countries, including China and UK.

“It is really easy, when talking to a colleague at your institution – who happens to be from a different country – about technical details, to not realize that the conversation could constitute an export violation,” I explained of risks associated with export control laws governing technology. “That is the easy miss for universities and other research institutions.”

I added that “the lesson for universities and research institutions is that lots of stuff that you are involved with, even those things that aim to assist humanity and cure disease, can still be subject to export license violations – even when doing business with our allies, with collaborators in countries with which we have very close trading relationships.”

The full article, “Princeton Fined for Export Violations Involving Controlled Pathogens,” was published March 1 by Chemistry World and is available online. For more detail on this topic, please see my post from February 9.

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 the government’s data and IT infrastructure is moving to the cloud, creating the opportunity for long-term cost savings, increased interoperability, as well as heightened security. At the same time, the push continues to secure key data held on contractor’s IT systems. While this is a much-needed initiative to protect sensitive data from adversaries, it imposes yet more administrative and compliance burdens on the contracting community.

These changes have had and will continue to have a significant impact on federal contractors. From DoD’s newly-finalized Cybersecurity Maturity Model Certification to heightened cybersecurity requirements in procurements by civilian agencies, contractors must ensure they have the necessary measures in place to continue to be compliant and eligible for federal awards. And understanding the government’s vision for the continuing transition to cloud computing helps contractors of all sizes to develop effective business capture strategies for FY2022 and beyond.

The webinar will cover these and other trends in both cloud computing and cybersecurity, including:

  • Does the CMMC apply to my company?
  • What should I do now to secure my company’s IT systems and ensure compliance with government contract requirements?
  • What is the status of the government’s major cloud computing procurements?
  • How will the move to the cloud impact small businesses?

This webinar will be held on Tuesday, May 11, 2021 from 10:00 a.m. to 11:00 a.m. EDT. For more information and registration, please visit the Maryland PTAC website.

After a successful challenge last year to the award of a service-disabled veteran-owned small business (SDVOSB) set aside task order for technology service desk operations by the U.S. Customs and Border Protection (CBP or the Agency), our government contracts team successfully defended the award of that task order after the re-evaluation to our client, Patriot, LLC. The challenge and subsequent successful defense of the award highlight the usefulness of the protest process, a process some contractors are hesitant to use.

CBP initially awarded the task order, issued under the Chief Information Officer-Solutions and Partners 3 (CIO-SP3) indefinite delivery indefinite quantity (IDIQ) Government-Wide Acquisition Contract (GWAC), to Candor Solutions, LLC in April 2020.  Patriot protested the award to Candor on April 16, 2020, and less than two weeks later the Agency took corrective action.

Candor’s September 2020 Protest

In September 2020, after re-evaluation, CBP awarded the task order to Patriot.  Candor protested, alleging the agency:

  1. Used a facially unreasonable adjectival rating scheme.
  2. Unreasonably deviated from the rating scheme.
  3. Unreasonably evaluated Candor’s proposal.
  4. Did not evaluate Patriot’s proposal in accordance with the solicitation.

Continue Reading Bass, Berry & Sims Successfully Protests—And Then Defends—Client Award of a Task Order Before the GAO

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

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