The U.S. Office of Management and Budget (OMB) has now established a page addressing “Agency Contingency Plans” with myriad links to the plans for a variety of agencies.  The OMB webpage also links to FAQs that address what is to be done to conduct an “orderly [government] shutdown” where there is a “lapse in appropriations”.  While these are directions for the agencies to follow, the documentation provides some guidance for contractors as well. Specifically, the FAQ provides that activities that are funded or “excepted” will be allowed to continue; those that aren’t won’t be. Howeve ..read more

The AbilityOne Program, established by the Javits-Wagner-O’Day (JWOD) Act in 1971, requires federal government agencies to procure certain products and services from community-based nonprofit agencies that employ individuals who are blind or have significant disabilities. Facts In a recent U.S. Court of Federal Claims decision, SEKRI, Inc. (SEKRI), a Kentucky nonprofit textile and apparel manufacturer that employs severely disabled individuals, filed a pre-award bid protest, claiming that the Defense Logistics Agency (DLA) and the United States Ability One Commission violated the JWOD Act by p ..read more

More Time to Claim Tax Credits The Inflation Reduction Act (IRA) is one of the most ambitious pieces of legislation yet aimed at combating climate change and promoting energy independence. Its proponents claim that it will reduce carbon emissions by 40%, relative to 2005 levels, over the next decade by incentivizing new infrastructure developments such as electrification and expanding renewable energy supply-side resources. Incentives under the IRA include extending and promoting tax credits in the renewable and biofuels sector. Below is a brief rundown of some of the more signifi ..read more

On December 1, 2022, the Federal Acquisition Regulatory Council (comprised of both the civilian and military acquisition regulatory councils) issued the final FAR rule on “Effective Communication between Government and Industry.” The final rule becomes effective on December 30, 2022. This final rule is a long time coming. Dan Gordon, the Office of Federal Procurement Policy (OFPP) Administrator during the Obama Administration back in 2011, began the laudatory efforts to engage government and industry in achieving a better understanding of what they could say, to whom, and when in procurements ..read more

Fiscal Year 2023 started on October 1 and, without a final set of Department of Defense (DoD) authorizations and appropriations, the DoD currently is operating under continuing resolution.  A version of the National Defense Authorization Act (NDAA) for Fiscal Year 2023 bill passed the House of Representatives and has been sent to the Senate for its consideration.  The House version, H.R. 7900, in addition to authorizing the procurement of various items, would provide for further environmental and equity initiatives, such as providing for (i) electric vehicle charging stations at comm ..read more

The civil False Claims Act (FCA) prohibits entities from fraudulently inducing the Government to contract, take or refrain from taking action, or make payment.  Under the FCA, contractors that falsely certify their compliance with contract specifications can be assessed a civil penalty for each false claim in addition to treble damages.  In USA v. Honeywell International Inc., the Court of Appeals for the District of Columbia Circuit was asked to determine the appropriate measure of damages arising from allegedly false claims made about the ballistic performance of Z Shield material ..read more

On August 18, 2022, the Office of Federal Contract Compliance Programs (“OFCCP”) issued “Advancing Pay Equity Through Compensation Analysis,” a revision to Directive 2022-01, “Pay Equity Audits.” The revised Directive states that in order to determine that a contractor has satisfied its obligation to conduct a compensation analysis under 41 CFR § 60-2.17(b)(3), OFCCP requires certain documentation. Although the original Directive used the phrase “pay equity audit” to refer to contractors’ obligations under 41 CFR § 60-2.17(b)(3), this revised Directive instead uses the term “compensation analy ..read more

Traditionally, a fixed price government contract is one in which the contractor absorbs the risks and costs of performance.  Absent an economic price adjustment (EPA) clause in the contract, an unforeseeable event, such as a force majeure, or government imposed contract change, the contractor is stuck with the benefit or lack of benefit of the particular contractual bargain. In a cost reimbursement contract, while actual allowable, allocable and reasonable costs will be captured and paid, any fee contemplated to address the risks of performing that commitment are typically low. However, t ..read more

Increasingly, the Federal government implements a rule for government contractors which then makes its way in some form into all of US industry.  Cybersecurity regulations, mandating that government contractors, grant and agreement holders, and their subcontractors, maintain certain security controls and report on cyber incidents, have been in effect for a number of years.  Indeed, Deputy Attorney General Lisa Monaco announced a Civil Cybersecurity Fraud initiative to go after government contractors, grant and agreement holders that falsely represent the cybersecurity of their produc ..read more

Effective Compliance Evaluations and Enforcement On March 31, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new directive concerning enforcement of its equal employment opportunity laws. The new directive, DIR 2022-02, Effective Compliance Evaluations and Enforcement, provides updated guidance on agency compliance evaluation policies and expectations for government contractors. The practical effect of this update is to remove some of the flexibility previously provided by the OFCCP when reviewing contractors for OFCCP compliance. It is ant ..read more