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…

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…

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…

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…

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

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

The Court of Federal Claims (COFC) recently affirmed that agencies are required to apply the “Rule of Two” to all federal acquisitions in its decision of Tolliver Grp., Inc. v. United States. Further, agencies must give a reasonable explanation supported by factual evidence when canceling solicitations. The decision ensures that small businesses will continue to have robust access to federal procurement opportunities.

Army Cancels SDVOSB RFPs in Favor of Unrestricted Multiple Award Contract

The two solicitations at issue in this case were for the procurement of training staff for a field artillery school located in Fort Sill, Oklahoma. Both solicitations were set-aside for service-disabled veteran-owned small businesses (SDVOSBs). After the Army awarded the contracts to two SDVOSBs, a third SDVOSB bidder protested the awards, alleging deficiencies in the Army’s evaluation of various factors.

The Army issued Notices of Corrective Action for both contracts, stating that it would cancel both awards, “[r]e-evaluate the requirement and acquisition strategy to ensure that it accurately reflects the Army’s current need,” and either cancel or amend the solicitations. The Army’s internal memorandums indicate that part of the rationale for revisiting the solicitations was because the Army now had a new multiple award indefinite delivery indefinite quantity (MAIDIQ) contract vehicle that encompassed the scope of the two solicitations at issue.Continue Reading COFC: “Rule of Two” Must Be Analyzed Before “Any” Acquisition

The Interagency Suspension and Debarment Committee (ISDC) recently released its annual report to Congress regarding suspension and debarment across the federal government in FY 2019.  The report serves as a yearly reminder that while selling to the federal government – the largest purchaser of goods and services in the world – may present tremendous opportunities, it is not without risk or obligation.  As Justice Holmes stated in Rock Island, Arkansas & Louisiana R.R. Co. v. United States, 254 U.S. 141, 143 (1920), people “must turn square corners when they deal with the Government.”  Those that don’t may lose access to the federal marketplace altogether, a loss that can prove fatal to companies that are heavily reliant on government contracts or grants.

Overview of ISDC Report

The ISDC report, which is available here, shows that while the total number of actions nearly doubled over the last decade, the number of proposed debarments and debarments continues its steady decline that began in FY 2014.  While this might suggest that agencies are utilizing this administrative tool less frequently, a closer analysis of the report shows that is not the case.

In fact, the number of referrals to suspending and debarring officials (SDOs), as well as the number of suspensions, increased significantly from FY 2018 to FY 2019: referrals were up from 2,441 to 2,806 and suspensions increased from 480 to 722, due in large part to increased activity by the Air Force, the EPA, and the Department of Labor.  This uptick is likely the result of a multi-year effort to educate contracting officials about the importance of referring contractors to SDOs when their conduct indicates either serious poor performance or a lack of business honesty or integrity such that excluding them from the federal marketplace to protect the government from potential harm might be appropriate.Continue Reading Annual Suspension and Debarment Report Serves as a Reminder to “Turn Square Corners” When Dealing with the Government

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

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