The General Services Administration (GSA) released its Class Deviation CD-2021-13 (the GSA Deviation), which, effective immediately, “provides instructions for the GSA acquisition workforce on when to include a new clause [i.e., Federal Acquisition Regulation (FAR) 52.223-99] (the Clause) in GSA solicitations and contracts and contract-like instruments.” Unlike the recent instructions and directions provided by the Civilian Agency Acquisition Council (CAAC) and the Department of Defense (DoD) and its DFARS Class Deviation (discussed in detail here), the GSA provided “GSA-specific implementation timelines for solicitations, new contracts, and existing contracts” to ensure that by October 8, 2021, all covered solicitations, new contracts, and existing contracts subject to Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (EO 14042), adhere to its mandates and the evolving guidance issued by the Safer Federal Task Force. This implementation includes the insertion of the Clause into new and existing GSA solicitations and Federal Supply Schedule (FSS) contracts awarded after October 15, 2021, and new contracts and leases awarded after November 14, 2021. The instruction applies broadly even to solicitations or contracts that have a value equal to or less than the simplified acquisition threshold (SAT) or are for the supply of products (either solely for products or for products and services). Moreover, the GSA is instructing its contracting officers to issue a letter to all existing contractors asking for their consent to a modification including the Clause. The end result is the expectation that virtually all GSA contracts and contract-like instruments will require all covered employees to be fully vaccinated by December 8, 2021. An analysis of the GSA Deviation’s key points, highlighting the confusion related to subcontract flow-downs, follows below.

Continue Reading This Will Only Hurt a Bit: The GSA Mandates COVID-19 Vaccines in Nearly All Existing Contract Types

Four memoranda, released in the last several business days, provide federal contracting officers guidance and suggested clauses to implement President Biden’s Executive Order 14042 (the Executive Order) in federal contracts imposing mandatory vaccination and workplace safety protocols for covered federal contractors and their employees as early as October 15, 2021. Issued by the Federal Acquisition Regulatory Council (FAR Council) (the FAR Council Memo), the Civilian Agency Acquisition Council (CAAC) (the CAAC Memo), the Principal Director, Defense Pricing and Contracting for the Department of Defense (DoD) (the DoD Memo), and the General Services Administration’s Senior Procurement Executive (the GSA Memo) (which we will be discussing in a separate posting), the memoranda move quickly to provide all procuring activities the necessary tools to ensure that by October 8, all solicitations and contract subject to the Executive Order adhere to its mandates and the evolving guidance issued by the Safer Federal Workforce Task Force (issued September 24) (Task Force Guidance). For those unfamiliar with the Executive Order and the resulting Task Force Guidance, please feel free to review our prior discussions of those issues here and here.

Continue Reading The Clauses Implementing Vaccination Mandate for Federal Contractors Are Out—Key Considerations for Contractors

This article appeared in Law360

The Safer Federal Workforce Task Force issued on Sept. 24 its guidance for federal contractors and subcontractors[[1] as required by President Joe Biden’s Sept. 9 executive order on ensuring adequate COVID-19 safety protocols for federal contractors.[2] The guidance was approved by the Office of Management and Budget on the same day.[3]

The guidance contains three key provisions:

  • Mandatory vaccination of covered contractor employees who are not legally entitled to accommodation;
  • Masking and physical distancing while in covered contractor workplaces in accordance with Centers for Disease Control and Prevention guidelines; and
  • The designation by each covered contractor of a point person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.[4]

Continue Reading Broad Categories of Employees of Federal Contractors Now Required to Be Fully Vaccinated by December 8–Law360

The Federal Acquisition Regulation (FAR) Council has returned from an extended vacation to publish a final rule to align the FAR with similar subcontracting regulations implemented by the Small Business Administration more than a half decade ago. McCarter & English Government Contracts and Global Trade co-leaders Franklin Turner and Alex Major and Senior Associates Cara Wulf and Ethan Brown provide guidance for federal contractors in a Feature Comment for Thomson Reuters’ The Government Contractor. In the comprehensive article, the authors review the recently published final rule amending the FAR and explain how contractors of all sizes should plan to capitalize on these new changes.

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If a company has one or more Organizational Conflicts of Interest (“OCIs”), its ability to compete for (and perform) a government contract in a fair and equitable manner is inherently called into question. In the context of a bid protest, this may be one of the most overlooked but “sharpest” grounds that may be available to a protester. In short, an OCI is an instance where “because of other activities or relationships with other persons [or entities], a person [or entity] is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” FAR 2.101. Understanding the three types of OCIs and the situations in which each typically arises is critical in order for disappointed offerors to execute this riposte in the face of a flawed contract award.

Continue Reading The GAO Sustains Protest Based on Awardee’s Organizational Conflicts of Interest—An Important Lesson for All Contractors

Continue Reading What’s Next for Federal Contractors and Mandatory COVID-19 Safety Protocols

A major pillar of President Biden’s campaign was strengthening the Buy American requirements in procurement law, promising both before and after the election that “[n]o government contracts will be given to companies that don’t make their products here in America.” Five days into office, the President issued an Executive Order designed to bring that promise closer to fruition. As we wrote here, the January 25, 2021 Executive Order directed both dramatic changes to domestic preference regulations and increased enforcement of existing requirements through a variety of means. Now, seven months later, amendments to the Federal Acquisition Regulation (FAR) are being proposed by the Department of Defense (DoD), General Services Administration, and National Aeronautics and Space Administration—collectively, the Federal Acquisition Regulatory (FAR) Council—to implement, at least in part, President Biden’s Executive Order (Proposed Rule).

Continue Reading Enhanced Buy American Requirements Coming Soon; Proposed Rule Foretells Big Changes

While most of us have been returning to some normality this summer by heading back to favorite vacation spots, the Procurement Collusion Strike Force (“PCSF”)—an arm of the United States Department of Justice’s Antitrust Division—remained in the office. The PCSF’s diligence was rewarded, as earlier this summer it announced the first antitrust actions concerning foreign companies and federal procurement dollars spent overseas; specifically, the prosecutions of two Belgian security companies for alleged bid-rigging and price-fixing in association with the procurement of various security services for military installations in Belgium. The prosecutions underscore the PCSF’s commitment to root out and prosecute anticompetitive conduct impacting U.S. procurement dollars—no matter where in the world those dollars are spent. With the PCSF’s expanding investigatory scope and increasing cooperation with similar agencies worldwide, international entities—or domestic entities with an international presence—that contract with the federal government should be on high alert.

Continue Reading Summer <i>In Bruges</i>: The Procurement Collusion Strike Force Turns its Eye Overseas

After 15 months of quarantines, restrictions, and mandatory home schooling, summer 2021 is luring with escape and excitement across the country.  We all hope for beach days and reunions with loved ones as we (hopefully) paddle toward normalcy once again. However, before setting up the “out-of-office” auto-replies and heading for the sand and surf, Government contractors interested in the implications of the Biden Administration’s January 25, 2021 Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers (EO) will want to take note of a June 11, 2021 Memorandum from the Office of Management and Budget on Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws (Memorandum). This Memorandum outlines the wave of changes the Made In America Office (MIAO) is poised to make over the summer of 2021 as it begins to implement the mandates of the EO.

Continue Reading Catching Waves: OMB Issues New Implementation Guidance for Biden Administration Buy American Executive Order

On May 12, 2021, the Biden administration unveiled a rather expansive executive order intent on “Improving the Nation’s Cybersecurity.” The lengthy and sweeping order is a comprehensive national cybersecurity overhaul. In addition to requiring significant improvements to the cybersecurity posture of the Federal Civilian Executive Branch (FCEB) agencies, the order also prescribes:

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