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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

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

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

“Now, the next part is very important…”

As scrutiny of domestic preference requirements increases in the wake of the Biden Administration’s Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers, the time is now for contractors to brush up on those requirements, examine supply chains to identify non-domestic content, and implement internal policies and procedures to ensure they are compliant with the domestic preference rules applicable to their contracts. On May 20, 2021, the US Attorney’s Office for the Eastern District of Pennsylvania announced a settlement under which a contractor agreed to pay $54,983 and implement “enhanced compliance measures” to resolve claims arising from its use of Chinese-made parts during a fire alarm installation and renovation project at Amtrak’s 30th Street Station in Philadelphia, PA. While the settlement amount is relatively minimal, the settlement is remarkable in that it telegraphs that funding agencies, along with the Department of Justice (DOJ), are willing to go to great lengths to be a nightmare for suppliers that do not adhere to the “Buy America” statutes and regulations.


Continue Reading I Will Find You: DOJ Uses Its Particular Set of Skills to Enforce Domestic Preference Rules

In the months since President Biden took office, legislators have tried—and thus far failed—to pass legislation raising the federal minimum wage to $15 per hour. While the debate rages on, the Biden-Harris administration has taken executive action to ensure that some workers receive a higher wage for work under federal contracts. On April 27, 2021, President Biden issued the Executive Order on Increasing the Minimum Wage for Federal Contractors, which will have a (relatively) short-term impact on thousands of contractors and their employees. The Executive Order aims to “promote economy and efficiency in procurement by contracting with sources that adequately compensate their workers.” It would increase the minimum wage paid by federal contractors from $10.95 per hour to $15 per hour. The increased minimum wage will begin appearing in solicitations and contracts, and thereby subcontracts, in early 2022, and contractors should begin preparing now to meet the increased minimum wage requirements.

Continue Reading Raising the Wage: Biden-Harris Administration Dramatically Increases Minimum Wage for Federal Government Contractors

Federal government contract domestic preference requirements are set for significant changes. McCarter & English Government Contracts and Global Trade co-leaders Franklin Turner and Alex Major and Senior Associate Cara Wulf provide guidance for federal contractors in a Feature Comment for Thomson Reuters’ The Government Contractor. In the comprehensive article, the authors review the current regulatory

A new administration has moved into the White House, and, as anticipated, President Biden wasted no time in issuing, in the first few days of his presidency, a raft of Executive Orders (EOs) that appear calculated to set the tone of his administration. Notably, many of these executive actions walk back (or attempt to fully erase) some of the signature policies of the Trump Administration. Some of these presidential actions have immediate implications for government contractors, while others represent broad policy statements that, at least in the short term, will have little impact on contractors’ day-to-day operations – but they merit a close watch, particularly the Executive Order titled “Ensuring the Future Is Made in All of America by All of America’s Workers,” discussed in detail here. Contractors should take note of these early developments, as they are likely to evolve into concrete policies that will create new opportunities – or obstacles – for businesses in the federal marketplace in the months and years to come.

Continue Reading The Beginning of the Biden Administration – What Federal Contractors Need to Know

On January 25, 2021, President Biden issued a sweeping Executive Order titled “Ensuring the Future Is Made in All of America by All of America’s Workers” (Order), which is intended to be the first step toward fulfilling his campaign promise to commit to American businesses by strengthening domestic preference rules in government procurement. The Order states the administration’s policy that the US government should “use terms and conditions of Federal financial assistance awards and Federal procurements to maximize the use of goods, products, and materials produced in, and services offered in, the United States.” While this is not a novel policy objective—indeed, the Trump administration articulated similar goals—the Order introduces certain dramatic steps in furtherance of that objective that may ultimately have significant implications for contractors.

Continue Reading Big Changes to Buy American—Biden Issues Broad Executive Order on the Future of Domestic Purchasing in Federal Procurement

On the eve of the inauguration of President Biden, a lingering Trump-era policy finally made its way into the Federal Acquisition Regulation (FAR). On January 19, 2021, the FAR Council issued a final rule implementing changes first revealed in Executive Order 13881 (the E.O.), Maximizing Use of American-Made Goods, Products, and Materials (84 FR 34257, July 18, 2019). As we discussed in an earlier post on this topic, the E.O. mandated significant modifications to FAR clauses implementing the Buy American statute by (1) substantially increasing domestic content requirements and (2) increasing the price preferences for domestic products. On September 14, 2020, the FAR Council issued a proposed rule designed to implement the requirements of the E.O. (85 FR 56558, Sept. 14, 2020). Our post on that development noted that, while the proposed rule incorporated the overarching objectives of the E.O., it also significantly expanded on the E.O. by reintroducing the domestic content test for commercially available off-the-shelf (COTS) items made wholly or predominantly of iron or steel, or a combination of both (with the exception of fasteners).

Continue Reading FAR Council Issues Final Rule to Implement Trump Executive Order on Significant Buy American Changes

On January 14, 2021, the Department of Justice released its updated statistics for False Claims Act (FCA) recoveries in FY 2020. The Civil Division reported that it recovered $2.2 billion in settlements and judgments in the previous fiscal year—down nearly $900 million from FY 2019, and off nearly two-thirds from the government’s high-watermark collections of $6.1 billion in FY 2014. Although $2.2 billion in net FCA recoveries represents DOJ’s lowest FCA haul in a decade, it is still a remarkable figure considering court closures and pandemic-slowed dockets across the country over the past eleven months.

Continue Reading 2020 False Claims Act Recoveries Were Down by One-Third in 2020. . . and That’s Bad News for Federal Contractors