Hold on to your alphabet . . . GSA extends the MAS CD&F waiver of TAA & BAA for COVID-19 PPE to 8/1/20. If that made sense to you, please proceed to the final paragraph. But for the acronymically challenged, when everything is spelled out, it means that the General Services Administration (GSA) has extended through August 1, 2020, the agency’s Class Determination and Findings (CD&F) providing a temporary waiver of the Trade Agreements Act (TAA) and the Buy American Act (BAA) for certain personal protective equipment (PPE) and supplies sold through GSA Multiple Award Schedules (MAS) contracts used to support the national coronavirus disease 2019 (COVID-19) response (the Extension). Despite the limited waiver implemented under the initial CD&F, it appears that the PPE and supplies covered “are still not available in sufficient supply from Trade Agreement and Buy America statute compliant sources[,]” thus necessitating the Extension.

Continue Reading Alphabet Soup You Can Use: GSA Extends TAA & BAA PPE Waiver for COVID-19

Recently, the Defense Pricing and Contracting (“DPC”) unit under the Secretary of Defense issued draft implementation guidance for Department of Defense (“DoD”) contracting officers tasked with assessing contractor requests for reimbursement in accordance with Section 3610 of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act and applying the recent cost principle implemented by DFARS Class Deviation 2020-O0013—topics covered in depth by this blog. This draft guidance was first alluded to in the May 1, 2020, memorandum from Kim Herrington, the DPC Acting Director, to address “the reimbursement process from requesting the contracting officer’s determination of an ‘affected contractor’ to providing a checklist to guide collection[ ] and evaluation of costs from the [contractor] seeking reimbursement [under Section 3610].” Composed of general reimbursement implementation guidance along with two attachments—a checklist for review of a contractor’s reimbursement request and instructions for using the checklist—the DPC’s draft is, to date, the most comprehensive guidance addressing contractor requests for reimbursement under Section 3610 since the DFARS Class Deviation 2020-O0013 issued on April 8. The final guidance is expected to be released shortly.

Continue Reading DoD Issues Draft Guidance for Contractor Reimbursement Under Section 3610 of the CARES Act

In order to provide guidance on agency implementation of Section 3610 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the General Services Administration (GSA) issued its April 21, 2020 Class Deviation CD-2020-12 (Class Deviation) covering contractor paid leave reimbursement authority in response to the COVID-19 pandemic. Effective immediately, the Class Deviation (1) sets forth Section 3610 guidance for GSA Contracting Officers, and (2) creates a new GSA Acquisition Regulation (GSAR) contract clause prescribing controls for contractor reimbursement under Section 3610 (GSAR 552.222-70). Although the Class Deviation does not account for all implementation issues associated with Section 3610, it does establish guidelines for agency implementation of contractor reimbursement under Section 3610. Given the wide variety of contracts GSA administers for the use of other agencies, this is welcome and practical guidance for contractors.

Continue Reading No, No, THANK YOU. … GSA’s Class Deviation Provides Contractors With Welcome Guidance on the Implementation of CARES Act Section 3610

The Prospect of False Claims Act’s Treble Damages Requires Meticulous Recordkeeping Under the CARES Act

On April 10, 2020, the Government Accountability Office (GAO) announced its effort to root out fraud associated with the billions of dollars in payments promised under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The Congressional watchdog is encouraging individuals – private citizens, government workers, contractors, etc. – to anonymously and confidentially report any allegations of fraud, waste, abuse, and mismanagement through FraudNet (the GAO’s fraud-reporting website), via e-mail or by calling 1-800-424-5454 (the GAO’s automated phone answering system). The GAO, of course, is seeking as much detail as possible about any allegations so the reports can be handed off to its own investigative unit, appropriate inspector general offices, or to the ultimate enforcer – the Department of Justice.


Continue Reading Borrowers Beware: GAO Ramps Up Efforts to Root Out Fraud Among CARES Act Loan Recipients

On April 8, 2020, a final rule (the Rule) was issued amending the Defense Federal Acquisition Regulation Supplement (DFARS) and implementing Section 852 of the National Defense Authorization Act (NDAA) for FY 2019 to provide for accelerated payments to DoD’s small business prime contractors and subcontractors supporting DoD contracts. The Rule applies to contracts at or below the simplified acquisition threshold (SAT) – currently $250,000 for DoD contracts – and to contracts for the acquisition of commercial items including commercially available off-the-shelf (COTS) items. With an estimated 96% of DoD contracts valued at or under the SAT, the rule appears to reflect DoD’s recognition that it is in the best interests of the government and small business contractors alike to apply this Rule to contracts at or below the SAT and to accelerate payments to small business prime contractors and subcontractors.

Continue Reading DFARS Final Rule Establishes Goal of 15-Day Accelerated Payments for Small Business Contractors

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

In a Class Determination and Findings (CD&F) published on April 3, 2020, the GSA’s Senior Procurement Executive directed that certain limited supplies to combat the COVID-19 virus identified in the CD&F may be acquired without regard to the domestic preference restrictions imposed by the Trade Agreements Act (TAA) and the Buy American Act (BAA) clauses included in the GSA Schedule and GSA individual procurements. The Senior Procurement Executive concluded that waivers of the domestic preference restrictions were warranted based on scarcity in that the supplies were deemed “temporarily unavailable in sufficient quantity or satisfactory quality” or not “mined, produced, or manufactured in the United States in sufficient and reasonably commercial quantities of a satisfactory quality.”

Continue Reading General Services Administration Issues Class-Wide Waiver of Trade Agreements Act and Buy American Act for All GSA Contracts and Schedules for Supplies to Combat the COVID-19 Virus

This week, the State of Hawai`i instituted some of the most sweeping emergency orders in the country in the response to the COVID-19 pandemic. For tourists, tourism, federal employees, federal contractors, and the millions of island residents, this means a very different kind of stay while in paradise.

Continue Reading COVID-19 Response — Locked In Paradise — Hawai`i Issues Robust Stay-at-Home and Mandatory Quarantine Orders for Visitors and Residents

As most government contractors are aware, progress payments are a form of contract financing in which the Government pays the contractor based on cost throughout performance of the contract, up to a cap dictated by the terms of the contract.  On March 20, 2020 – “in response to the Coronavirus Disease” – the Department of Defense issued a Class Deviation to contract clauses DFARS 252.232-7004 and FAR 52.232-16, the effect of which is to increase the progress payment rates to 90% for large business concerns and 95% for small business concerns – an increase of 10% and 5%, respectively – from the customary progress payment rates established by DFARS 232.501-1.  The Class Deviation provides that the change is to remain in effect until rescinded.

Continue Reading COVID-19 Update: Department of Defense Issues Class Deviation, Increasing Certain Progress Payment Ceilings

On Friday, March 20, 2020, the Office of Management and Budget (OMB) issued Memorandum No. M-20-18, titled “Managing Federal Contract Performance Issues Associated With The Novel Coronavirus (COVID-19).”  The Memorandum, directed to the heads of all Executive Departments and constituent federal agencies, provides key guidance on maintaining continued contract performance while respecting the need to protect the safety of the contracting community during this unprecedented time.  The critical aspects of the Memorandum, accompanied by a contractor “To Do” list, are as follows:

Continue Reading Update on the COVID-19 Federal Contractor’s Guide – The Office of Management and Budget Issues Critical Guidance Regarding Federal Contract Performance