The Federal Acquisition Regulation (FAR) Council has returned from an extended vacation to publish a final rule to align the FAR with similar subcontracting regulations implemented by the Small Business Administration more than a half decade ago. McCarter & English Government Contracts and Global Trade co-leaders Franklin Turner and Alex Major and Senior Associates Cara Wulf and Ethan Brown provide guidance for federal contractors in a Feature Comment for Thomson Reuters’ The Government Contractor. In the comprehensive article, the authors review the recently published final rule amending the FAR and explain how contractors of all sizes should plan to capitalize on these new changes.
If a company has one or more Organizational Conflicts of Interest (“OCIs”), its ability to compete for (and perform) a government contract in a fair and equitable manner is inherently called into question. In the context of a bid protest, this may be one of the most overlooked but “sharpest” grounds that may be available to a protester. In short, an OCI is an instance where “because of other activities or relationships with other persons [or entities], a person [or entity] is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” FAR 2.101. Understanding the three types of OCIs and the situations in which each typically arises is critical in order for disappointed offerors to execute this riposte in the face of a flawed contract award.
A major pillar of President Biden’s campaign was strengthening the Buy American requirements in procurement law, promising both before and after the election that “[n]o government contracts will be given to companies that don’t make their products here in America.” Five days into office, the President issued an Executive Order designed to bring that promise closer to fruition. As we wrote here, the January 25, 2021 Executive Order directed both dramatic changes to domestic preference regulations and increased enforcement of existing requirements through a variety of means. Now, seven months later, amendments to the Federal Acquisition Regulation (FAR) are being proposed by the Department of Defense (DoD), General Services Administration, and National Aeronautics and Space Administration—collectively, the Federal Acquisition Regulatory (FAR) Council—to implement, at least in part, President Biden’s Executive Order (Proposed Rule).
While most of us have been returning to some normality this summer by heading back to favorite vacation spots, the Procurement Collusion Strike Force (“PCSF”)—an arm of the United States Department of Justice’s Antitrust Division—remained in the office. The PCSF’s diligence was rewarded, as earlier this summer it announced the first antitrust actions concerning foreign companies and federal procurement dollars spent overseas; specifically, the prosecutions of two Belgian security companies for alleged bid-rigging and price-fixing in association with the procurement of various security services for military installations in Belgium. The prosecutions underscore the PCSF’s commitment to root out and prosecute anticompetitive conduct impacting U.S. procurement dollars—no matter where in the world those dollars are spent. With the PCSF’s expanding investigatory scope and increasing cooperation with similar agencies worldwide, international entities—or domestic entities with an international presence—that contract with the federal government should be on high alert.
After 15 months of quarantines, restrictions, and mandatory home schooling, summer 2021 is luring with escape and excitement across the country. We all hope for beach days and reunions with loved ones as we (hopefully) paddle toward normalcy once again. However, before setting up the “out-of-office” auto-replies and heading for the sand and surf, Government contractors interested in the implications of the Biden Administration’s January 25, 2021 Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers (EO) will want to take note of a June 11, 2021 Memorandum from the Office of Management and Budget on Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws (Memorandum). This Memorandum outlines the wave of changes the Made In America Office (MIAO) is poised to make over the summer of 2021 as it begins to implement the mandates of the EO.
On May 12, 2021, the Biden administration unveiled a rather expansive executive order intent on “Improving the Nation’s Cybersecurity.” The lengthy and sweeping order is a comprehensive national cybersecurity overhaul. In addition to requiring significant improvements to the cybersecurity posture of the Federal Civilian Executive Branch (FCEB) agencies, the order also prescribes:
Exercising its authority under Section 6(c) of the Occupational Safety and Health Act, the federal Occupational Safety and Health Administration (OSHA) issued its COVID-19 Healthcare Emergency Temporary Standard (ETS) on June 21, 2021. The ETS sets forth safety standards for employers (including federal contractors) with employees working in a healthcare setting—the workers OSHA has determined are at highest risk for workplace exposure to the virus that causes COVID-19. Healthcare employers are expected to comply with the primary ETS requirements as of July 6, 2021, while compliance with additional requirements concerning physical barriers, ventilation, and training is mandated as of July 21, 2021. OSHA is inviting comments on the ETS, including whether it should become a final rule. The deadline to submit comments regarding the ETS and whether it becomes a final rule is July 21, 2021, and the deadline to comment on the information collection determination is August 20, 2021.
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.
As COVID-19 antibodies begin flooding the immune systems of most Americans, it is important to remember the important role that hygiene has played over the past fifteen months. For many, the risks and dangers of the pandemic were kept at bay by hand washing, masking, and sanitizing after every new touch. That same kind of attention to hygiene is something federal contractors should retain as they are permitted to reenter a world filled with supply chain enforcement risk.