Photo of Dan Kelly

Mr. Kelly brings over thirty years of experience to the firm’s government contracts group. His practice combines both counseling and acting as an advocate on behalf of clients doing business in the government marketplace.  Mr. Kelly has knowledge of the government contracting process both on a federal and state level, and the specific laws, regulations, contract clauses and dispute resolution mechanisms in this specialized area. He provides advice and guidance to clients who are in the government supply chain, either as prime contractors, subcontractors or vendors. He reviews government solicitations with clients, prepares proposals, and negotiates teaming arrangements and subcontracts with other suppliers. He helps clients build and enhance their compliance programs. He assists clients in protecting their intellectual property and proprietary information concerning their businesses when doing business with the government. He advocates for clients who wrongfully were passed over for a contract award. He prepares claims arising under government contracts as a result of change orders, delays, and terminations for default or convenience. Mr. Kelly’s practice extends to a broad spectrum of industries and federal and state authorities for whom they supply research, products and services including, Medicare and Medicaid audit and investigation service providers; commercial software developers who modify their software for military applications; professional services providers for federal and state-sponsored hurricane relief efforts; raw materials and component suppliers to large military prime contractors; and biomedical and pharma research facilities working under SBIRs, CRADAs, and grants for health agencies.

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


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

On January 4, 2021, the National Institute of Standards and Technology (NIST) published proposed rules for comment changing regulations promulgated under the Bayh-Dole Act (35 U.S.C. §§ 200-204), which allow businesses and nonprofit institutions, in most circumstances, to take title to inventions made under federally funded projects (subject inventions) and to freely commercialize items, and methods used to produce items, embodying subject inventions.

Continue Reading NIST on Track to Clarify Bayh-Dole to Ensure High Prices Cannot Be Used as Grounds for Exercising March-in Rights – Or Is It?

Each year, Congress presents us in Title VIII of the National Defense Authorization Act (NDAA) a potpourri of procurement reforms, changes, and additions. Some are effective immediately, while some are bound for rulemaking and regulation and surface years from enactment. Some require analyses, reports, and studies which have no immediate impact but provide a roadmap that can and should be used by government contractors in their business planning. Finally, some provisions of the NDAAs just wither away and have no impact whatsoever. Nineteen days before the Trump Administration ended, the US Senate followed the US House of Representatives in overriding the President’s veto of the William (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (H.R. 6395) (FY2021 NDAA), making it law on January 1, 2021.  Happy New Year! As for its Title VIII, the FY2021 NDAA is no different from its predecessors in its procurement potpourri. Here’s a tour of key provisions you oughta know.

Continue Reading Here to Remind You of the Key Provisions of the Fiscal Year 2021 National Defense Authorization Act – You Oughta Know!

On September 22, 2020, President Trump issued an Executive Order on Combating Race and Sex Stereotyping (the Order). The Order is directed squarely at federal contractors and subcontractors, and states that its purpose is to “promote economy and efficiency in Federal contracting, . . . unity in the Federal workforce, and . . . combat[] offensive and anti-American race and sex stereotyping and scapegoating.” The Order is effective immediately but is applicable to contracts issued after November 22, 2020 (60 days after the Order).

Continue Reading UPDATE: New Executive Order and Accompanying OFCCP FAQs Demand Federal Contractors and Grantees Scrutinize All Diversity Workforce Training

On September 22, 2020, President Trump issued an Executive Order on Combating Race and Sex Stereotyping. The Order is directed squarely at federal contractors and subcontractors and states that its purpose is to “promote economy and efficiency in Federal contracting, . . . unity in the Federal workforce, and . . . combat[] offensive and anti-American race and sex stereotyping and scapegoating.” The Order is effective immediately but is applicable to contracts issued after November 22, 2020 (60 days after the order).

Continue Reading New Executive Order Demands Federal Contractors and Grantees Scrutinize All Diversity Workforce Training

FEMA Seeks All Comers to Supply Government with COVID-19 Supplies

Through its website, the Federal Emergency Management Association (“FEMA”) is encouraging the private sector to step up and support the agency in its response to COVID-19 in a variety of ways. In pertinent part, the website solicits donations of medical supplies and equipment, refers businesses with nonmedical good and/or services that can help the response to the Department of Homeland Security (“DHS”) Procurement Action Response team, and provides guidance to hospitals and healthcare providers in need of medical supplies.


Continue Reading FEMA Opens a Door and Closes a Window: A Primer on FEMA’s Broad Efforts to Obtain and Retain Medical Supplies to Combat COVID-19