On April 15, 2025, President Trump issued a sweeping executive order (EO), “Restoring Common Sense to Federal Procurement.” As reflected in its accompanying Fact Sheet, the EO promises to rewrite the Federal Acquisition Regulation (FAR), eliminate most non-statutory provisions, and usher in the “most agile, effective, and efficient procurement system possible.” As the first comprehensive overhaul of the FAR in its nearly 40-year history, the forthcoming changes may dramatically reshape how businesses of all stripes engage with the federal government. But beyond its big promises and patriotic flair, the proposed overhaul raises critical questions: Can it really be done in six months? What happens to the thousands of existing regulations around which contractors have built compliance programs?Continue Reading Hold My Beer: The Trump Administration’s Bold Plan to Rewrite the FAR
Tariffs, Leprechauns, and Contract Gold: Navigating the Hidden Costs of Trade Policies
As St. Patrick’s Day approaches, many of us are on the lookout for four-leaf clovers, a pot of gold, or perhaps even a mischievous leprechaun guarding his treasure. But in the world of government contracting, the real tricksters aren’t wearing green coats and buckled shoes—and there is no gold at the end of the procurement rainbow. Instead, that pot is full of the recently announced tariffs. Effective March 4, 2025, the Trump administration imposed 25 percent tariffs on Mexican and Canadian imports (exclusive of Canada energy imports, where there is a 10 percent tariff) and a 20 percent tariff on Chinese products. While economists, pundits, and the stock market will all have their say on the wisdom behind these actions, such prognostication is of little help to federal contractors who are forced to deal with the very real effects right now.Continue Reading Tariffs, Leprechauns, and Contract Gold: Navigating the Hidden Costs of Trade Policies
Whisper Through the Screams: DOJ Commits to False Claims Act Enforcement in 2025
Amid the chaos of the past few weeks—sweeping executive orders, relentless cost-cutting, and an air of uncertainty that lingers like smoke after a fire—federal contractors have been left reeling, straining to hear what comes next through the deafening noise. In this storm, predicting the future is as futile as fortune-telling. And yet beneath the shouts of change and upheaval, one truth remains, a whisper through the screams—some things, especially those that serve the government’s interests, are not going anywhere.Continue Reading Whisper Through the Screams: DOJ Commits to False Claims Act Enforcement in 2025
What Happens When Uncle Sam Doesn’t Understand SAM? The Case of the Lucky Protester . . .
On January 8, 2025, in UNICA-BPA JV, LLC, the U.S. Government Accountability Office (GAO) sustained a protester’s challenge to its elimination from the competition for failing to have an active System for Award Management (SAM) registration at the time of its initial proposal submission. The GAO sustained the protest because the protester’s registration was in fact active at the time it submitted its final proposal revision (FPR) even though it was inactive at the time of initial proposal submission. The facts of the case are straightforward:Continue Reading What Happens When Uncle Sam Doesn’t Understand SAM? The Case of the Lucky Protester . . .
Surviving And Thriving In The Small Business Administration’s 8(a) Program: Maximizing Opportunities For NHOs, ANCs, and Tribes
Alex Major, Franklin Turner, and Philip Lee co-authored the article “Surviving And Thriving In The Small Business Administration’s 8(a) Program: Maximizing Opportunities For NHOs, ANCs, And Tribes” for Briefing Papers. The article provides an overview of the Small Business Administration’s 8(a) Business Development Program, which provides socially and economically disadvantaged small business owners with federal
Chambers Ranks McCarter Government Contracts Practice Band 1 Nationwide
McCarter’s Government Contracts team is grateful to its clients for once again honoring it with a Band 1 Nationwide ranking by Chambers USA: America’s Leading Lawyers for Business. It appreciates the recognition that “McCarter & English, LLP is lauded for its ability to provide guidance on a broad array of issues including transactions, regulatory
Supply Chain Checkup: FAR Council Announces New Rulemaking Focused on Prohibiting Certain Semiconductor Acquisitions
If you happen to be a government contractor and are contemplating additions to your Summer reading list, consider adding the FAR Council’s May 3, 2024 advanced notice of proposed rulemaking (“ANPR”) to the mix. The ANPR, which was issued in furtherance of implementing Section 5949 of the FY 2023 National Defense Authorization Act (“NDAA”), contemplates various forthcoming changes to the FAR, all of which focus on banning agencies from purchasing certain products or services that contain or otherwise utilize semiconductors that are produced, designed, or provided by three Chinese entities and their subsidiaries, affiliates, or successors: Semiconductor Manufacturing International Corporation (“SMIC”), ChangXin Memory Technologies (“CXMT”), and Yangtze Memory Technologies Corp. (“YMTC”). In addition, the FAR will likely be amended to prohibit the acquisition of semiconductor products or services from any entity that is owned, controlled by, or otherwise connected to China, North Korea, Iran, Russia and any other “foreign country of concern” – a designation to be determined by the Secretary of Defense or the Secretary of Commerce, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation.Continue Reading Supply Chain Checkup: FAR Council Announces New Rulemaking Focused on Prohibiting Certain Semiconductor Acquisitions
Sometimes Post-Proposal Communications Are More Than Sweet Nothings …
As most government contractors have experienced firsthand, procuring agencies routinely engage in a wide variety of communications after bids have been submitted. On occasion, these exchanges are quite minor and afford an offeror the limited opportunity to clarify aspects of its proposal and/or to resolve clerical errors. Sometimes, however, the exchanges are more critical in nature and allow the contractor to submit proposal revisions as part of the negotiation process. When this occurs, the agency is said to have engaged in “discussions” with the contractor. In this scenario, the Federal Acquisition Regulation (FAR) imposes a host of obligations on the agency’s conduct.Continue Reading Sometimes Post-Proposal Communications Are More Than Sweet Nothings …
When the Cure Is Worse Than the Disease: Recent CBCA Decision Regarding Improper Default Terminations Provides a Teachable Moment for Every Contractor
As most government contractors will readily admit, there are few pieces of mail more unwelcome than a cure notice from Uncle Sam. This letter, for those of you who may be blissfully unaccustomed, is a government-issued notification that is supposed to put the contractor on notice that the contract may be terminated for default in light of certain alleged performance failures, which the government is supposed to specify for the contractor. In addition, as its name would suggest, the purpose of the communication is to give the contractor an opportunity to explain how it will cure the issue(s) giving rise to the government’s concerns by a date certain—often established as a number of days from the contractor’s receipt of the notice (typically 10 days, but sometimes longer).Continue Reading When the Cure Is Worse Than the Disease: Recent CBCA Decision Regarding Improper Default Terminations Provides a Teachable Moment for Every Contractor
Knowing IS the Battle: Supreme Court to Address the FCA’s Scienter Standard
Scenario 1: A pharmacy chain hires a value consultant to review its Medicare and Medicaid billing practices for ways to optimize the coding of drug reimbursements to maximize profits. Drugs that had historically been charged for government reimbursement at $1/pill as the “usual and customary price” are now getting coded for reimbursement at $3/pill—a 200% markup that represents a pure profit windfall to the pharmacy chain. Is this a violation of the False Claims Act (FCA)?
Scenario 2: A construction company that has years of experience in federal procurement contracting had never charged the government for reimbursement of several cost items, because the company’s previous CFO did not feel such reimbursement would meet the “reasonableness” requirements of FAR Part 31 (e.g., FAR 31.201-2(a)(1) and 31.201-3). But the company’s new CFO, holding a different interpretation of the reasonableness standards and Cost Accounting Standards (CAS), instructs his program leads to start charging those items for reimbursement in all new and existing contracts. Is this a violation of the FCA?Continue Reading Knowing IS the Battle: Supreme Court to Address the FCA’s Scienter Standard