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

Last year, President Biden signed the Juneteenth National Independence Day Act, making June 19, the celebration of the end of slavery, a federal holiday. The second Juneteenth National Independence Day is fast approaching. This year, Juneteenth falls on a Sunday and will be observed on Monday, June 20, 2022.

This means a holiday for federal workers, but what does this mean for an employer with federal contracts or subcontracts? The following provides a brief overview of when Juneteenth is a paid holiday for a federal contractor’s employees under contracts or subcontracts subject to (i) the Service Contract Act (SCA), (ii) the Davis Bacon Act’s (DBA) labor standards provisions, or (iii) another contract provision governing paid holidays.

Continue Reading Juneteenth Is Fast Approaching: Time to Check and Confirm Your Contractual Fringe Benefit Obligations for Paid Holidays

For just shy of a decade, the Defense Industrial Base (DIB) has had to operate under rules dictating the safeguarding of Controlled Unclassified Information, along with a strict 72-hour notification requirement if/when/should a “cyber incident” occur. For the uninitiated, these are the requirements found in the Department of Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012. And for a large swath of government contractors, these requirements have been more bane than benefit, as many have struggled to meet the DFARS’ stringent requirements.

Continue Reading Critical Infrastructure Industry Drafted: Welcome to the Cyber War

Regardless of whether they were eagerly anticipated or begrudgingly unavoidable, the changes promised to the Buy American Act (BAA) early last year have at last arrived, or at least are quickly approaching. On March 4, 2022, the Federal Acquisition Regulation (FAR) Council released its long-anticipated Final Rule implementing important revisions to the BAA provisions of the FAR and incorporating the requirements outlined in President Biden’s January 28, 2021 executive order, “Ensuring the Future Is Made in All of America by All of America’s Workers.” Although the Final Rule, for the most part, conforms with the Proposed Rule issued in July 2021 (which we previously discussed here), the most notable aspect may be that the Final Rule’s effective date was delayed until October 25, 2022. This generous gap provides contractors with roughly 235 days to fortify their compliance efforts and ensure that necessary policies and procedures are in place to meet the necessary supply chain and regulatory changes imposed by the Final Rule — well  in advance of Halloween.

Continue Reading With Just a Little Ado: Significant Buy American Changes Are Coming Before Halloween

With Spring Training just a few weeks away it looks like the Biden Administration is stepping up to the plate to ensure the plans in its $1 trillion Infrastructure Investment and Jobs Act can avoid strikes. On February 4, 2022, President Biden signed the Executive Order on the Use of Project Labor Agreements for Federal Construction Projects (the Executive Order), which requires the federal government, in an effort to avoid potential labor disputes and delays in any “large-scale construction contract” (a project valued at over $35 million), to use project labor agreements before awarding a contract. The Executive Order is effective immediately, and construction contractors should begin seeing it applied in future and maybe even pending solicitations or orders. How, exactly, the Executive Order will appear in immediate solicitations is unclear, but the FAR Council is tasked with implementing the Executive Order within 120 days before promptly issuing a final rule. Before that happens, let’s tap the mud off the cleats and make sure you’re ready to play ball.

Continue Reading PLAy Ball! Executive Order Directs Project Labor Agreements for Construction Projects Over $35 Million

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.
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

After months of review, on November 4, 2021, the Department of Defense (DoD) finally unveiled its new version of the Cybersecurity Maturity Model Certification (CMMC 2.0). Well, almost. In a blink-and-you’ll-miss-it moment, the Department posted, then quickly removed, new federal regulations in/from the Federal Register highlighting the changes in CMMC. Most of those changes, however, were ultimately described on the OUSD Acquisition & Sustainment website, which remain posted and available. In conducting its review of CMMC 1.0, the DoD focused largely on clarifying the standard and reducing the cost impact on the Defense Industrial Base (DIB). The result? A “been there, already had to do that” standard that should leave the DIB relatively pleased and the burgeoning CMMC accreditation industry mildly perplexed. In place of the five-tiered, third-party-assessed cybersecurity framework addressing data confidentiality, integrity, and availability, the new CMMC 2.0 presents as a three-tiered, largely self-assessed bolstering of the NIST SP 800-171 safeguarding requirements already required to be implemented by contractors in possession of “Covered Defense Information” (CDI) under DFARS 252.204-7012.

Continue Reading CMMC 2.0: Throwback Cybersecurity — Everything Old Is New Again