Contract Performance & Administration

As much we all love Rihanna, it’s a real shame how many contractors have called me in the last few days with issues that remind me of her well-known “Pay Me What You Owe Me” lyrics. They’re brought to mind because contractors are – on an increasing basis – being denied payment on properly invoiced sums. In some cases, contractors have even been expressly advised by agency officials that they will not be paid at all for the foreseeable future. “Don’t submit any future invoices until you hear from us” is becoming a shockingly common refrain. And yet, the work being invoiced was properly performed. There is no allegation of delayed or deficient performance. Indeed, the amounts due are undisputedly owing to the contractor. So what is going on?!?

Continue Reading Pay Me What You Owe Me, Don’t Act Like You Forgot!

On February 26, 2025, the White House issued another Executive Order (EO) that will have major implications for Federal government contractors across numerous industries and agencies. The new EO, entitled Implementing the President’s “Department of Government Efficiency” Cost Efficiency Initiative, requires every agency to work with that agency’s DOGE Team Lead (i.e., the leader of the DOGE Team at each agency, as defined in Executive Order 14158) to, among other things, conduct a review of covered contracts and grants, set up guidance for new contracts aimed at promoting efficiency and the Trump administration’s priorities, and build a system to track and justify payments made to contractors. What does that mean for you? Consider the below.

Continue Reading New EO Demands Agencies Conduct Review of All Covered Contracts and Grants, Terminate or Modify To Reduce Spending, and Set Up System To Track and Justify All Future Payments

DOD released a final rule which updates the DFARS to address requirements outlined in Executive Order 14005, “Ensuring the Future is Made in All of America by All of America’s Workers.” Marcos Gonzalez explains the changes and what contractors should be aware of while making adjustments to their supply chains in order to continue supplying…

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

Just in time for the season of new backpacks, lunch boxes, and school supplies, the Office of Management and Budget (OMB) has assigned some homework to contractors looking to participate in Federal financial assistance programs for infrastructure. Consistent with its Build America, Buy America Act (BABA) mandates, on August 23, 2023, OMB published a Final Rule revising its Guidance for Grants and Agreements to implement BABA (Final Rule). This Final Rule follows the Proposed Rule of February 9, 2023 (Proposed Rule), which we previously discussed, in which OMB proposed creating a new part 184 in 2 Code of Federal Regulations (CFR), and revising 2 CFR 200.322, Domestic preferences for procurements, to implement the requirements in Section 70914 of BABA. With the guidance becoming effective October 23, 2023, contractors should not put off studying these requirements if they want to be prepared for the BABA tests that will undoubtedly come as agencies begin to implement this guidance.

Continue Reading Back to School: Time to Study the OMB Final Rule Implementing BABA

Approximately 15 months ago, on November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (IIJA), commonly known as the Bipartisan Infrastructure Law. The IIJA is one of the Biden administration’s signature legislative achievements to date and provides $1.2 trillion in funding for a broad range of infrastructure projects. A key part of the IIJA is the Build America, Buy America (BABA) Act, which requires that the head of each covered federal agency ensure that “none of the federal funds made available for a Federal financial assistance program for infrastructure may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.” BABA Act at § 70914. The BABA Act required agencies to implement these requirements by May 14, 2022; however, as that deadline came and went, contractors eagerly awaiting opportunities to build the nation’s infrastructure were left wondering how (and when) these requirements would be applied to affected projects.

Continue Reading (No Longer) Building a Mystery—Biden Administration Issues Long-Awaited Guidance Implementing BABA Requirements for Infrastructure Projects

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

When issues arise during performance of a federal government contract, causing a contractor to experience delays and/or to incur additional, unanticipated costs, contractors have a choice of remedies. They can request the contract duration or price be adjusted by submitting either a request for equitable adjustment (REA), or a claim. Though REAs and claims largely…

Like most businesses, government contractors are in the customer service field and have been conditioned to operate by the old adage that the “The customer is always right.” After all, the customer pays the bills, right? As a general matter, this is true. Uncle Sam is responsible for paying the bills submitted by contractors and—most of the time—payment arrives without issue. That said, there are circumstances in which the government refuses to pay for work performed. One of the more common reasons for such nonpayment is the government’s contention that the work at issue was “not authorized” under the operative contract, notwithstanding the fact that the contracting officer’s representative (COR) was well aware of the work being performed. There are, in fact, many decades of decisional law emanating from courts and boards of contract appeals relating to the nuances of this precise issue. This means that an untold (but stratospherically high) number of frustrated contractors have suffered very expensive battle scars trying to litigate their way to payment by convincing judges that the work performed actually was authorized by the appropriate government personnel. A recent publication by the Department of Defense (DoD) provides contractors with an important reminder as to how to avoid this costly fate.
Continue Reading “Respect My Authority!”—An Important Reminder as DoD Issues an Updated Guidebook for Contracting Officer Representatives