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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.
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Continue Reading “Respect My Authority!”—An Important Reminder as DoD Issues an Updated Guidebook for Contracting Officer Representatives

Unless you’ve been living under a rock or on a self-sustaining deserted island, the chances are high that you have become quite familiar with the term “inflation” (i.e., the rising costs of goods and services) over the past few years. Indeed, everything (from gasoline to gumballs and milk to movie tickets) appears to be more expensive as of late. Unfortunately, government contractors are not immune from this current economic reality. As most of us know all too well, many contracts that were negotiated and priced over the past 18 to 24 months are simply more expensive to perform now than was reasonably anticipated when bids were prepared.

In recognition of these soaring prices, the Department of Defense (DoD) issued a May 25, 2022, Memorandum titled “Guidance on Inflation and Economic Price Adjustments,” the purpose of which is to assist contracting officers (COs) in (i) navigating the impacts of inflation on existing contracts and (ii) managing downstream inflation risks on prospective contracts. Here are the key takeaways and our suggested courses of action to best protect your company’s bottom line:…

Continue Reading DoD Braces for Inflation: Guidance for Contractors Battling Rising Costs

The Cybersecurity Maturity Model Certification version 2.0 (CMMC 2.0) is here! Like a song you’ve heard before, the revised standards are a throwback but no less significant change to the standards that have evolved over the past three and a half years. McCarter & English Government Contracts and Global Trade co-leaders Alex Major and Franklin Turner detail the changes coming to federal contractors in a Feature Comment for Thomson Reuters’ The Government Contractor. Set against the recent Beatles documentary, the comment examines the impact of the Department of Defense’s most recent effort while detailing what contractors need to do before its new standards go into effect.
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Continue Reading Get Back: DOD Retreats While Revealing Plans for CMMC 2.0

Judge R. Stan Baker of the US District Court for the Southern District of Georgia issued an order (Order) on December 7, 2021, enjoining the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” This comes on the heels of the November 30, 2021 order by a federal court in Kentucky (see our article here) blocking the federal government’s ability to enforce the obligation embedded in clauses in federal government contracts and other instruments requiring employees of federal contractors with covered contracts in Kentucky, Ohio, and Tennessee to be fully vaccinated by January 18, 2022.
Continue Reading Georgia Federal Court Blocks Federal Contractor COVID-19 Vaccine Mandate Nationwide

The Government’s enforcement of contract provisions implementing the COVID-19 vaccine mandate with regard to federal contractors and subcontractors required by President Biden’s Executive Order 14042 (the EO) was preliminarily enjoined by a federal court in Kentucky in a case brought by the states of Kentucky, Ohio, and Tennessee (and two Ohio sheriffs). In his Opinion and Order of November 30, 2021 (the Order), Judge Gregory F. Van Tatenhove of the US District Court for the Eastern District of Kentucky (the Kentucky court) concluded, among other findings, that it was likely that the President exceeded his authority under laws delegating to the President management of federal procurement and requiring federal agencies to engage in “full and open competition” procurements. The court also raised concerns about whether the President’s actions violated the Tenth Amendment of the Constitution and the “nondelegation doctrine,” a constitutional principle recognized by the US Supreme Court that Congress does not have unlimited discretion in delegating to the President the power to make laws.
Continue Reading Federal Contractor Vaccine Mandate Enjoined in Kentucky, Ohio, and Tennessee: The Implications

UPDATE: The Safer Federal Workforce Task Force issued updated Guidance on November 10 confirming that the date a covered employee must be fully vaccinated is January 18, 2022.

With the addition of new answers to frequently asked questions (FAQs) on November 1, and the November 4 “Fact Sheet” issued by the White House accompanying the rollout of the Department of Labor’s Occupational Safety and Health Administration (OSHA) and Centers for Medicare & Medicaid Services (CMS) vaccination requirements for, respectively, employers with 100 or more employees and health care workers and facilities participating in Medicare and Medicaid, federal contractors have been given additional breathing room to address recalcitrant covered employees who are resisting the vaccination mandate.…

Continue Reading Important Updates on Federal Contractor Vaccine Mandate—Deadline Extended and Flexibility Added

The Government Contracts and Global Trade Group is pleased to provide a summary of some of the key class deviations and other memoranda published by U.S. Government agencies implementing the federal contractor COVID-19 vaccine mandate (Executive Order 14042). You may find a complete listing of all class deviations at Acquisition.gov.

To view summary click

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.
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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.
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Continue Reading The Clauses Implementing Vaccination Mandate for Federal Contractors Are Out—Key Considerations for Contractors

As you may recall, Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA required the US Department of Defense (DoD) to draft regulations to establish comprehensive post-award debriefing rights for disappointed offerors involved in applicable DoD procurements. On March 22, 2018, the DoD responded by issuing a Class Deviation that implemented certain FY 2018 NDAA requirements—i.e., those requirements affording disappointed offerors the opportunity to submit additional written questions to the cognizant DoD agency within two business days of its agency debriefing conducted in accordance with FAR 15.506(d). In such circumstances, the cognizant DoD agency must provide written responses to the questions within five business days after receipt of the questions. Moreover, if a disappointed offeror chooses to submit timely post-debriefing questions, the debriefing does not conclude—and thus the disappointed offeror’s GAO protest “clock” does not begin to run—until the agency provides its written response. On May 20, 2021, the DoD published a Proposed Rule to amend the Defense Federal Acquisition Regulation Supplement to (1) codify the March 2018 Class Deviation and (2) implement the additional post-award debriefing requirements from the FY 2018 NDAA.
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Continue Reading DoD Issues Proposed Rule on Enhanced Post-Award Debriefing Rights