Blog

Last week, the U.S. Government Accountability Office ("GAO") published its much anticipated Bid Protest Annual Report to Congress for Fiscal Year 2023. GAO's annual report is required under the Competition in Contracting Act of 1984 ("CICA") and provides the government contracting community with good insight into GAO's bid protest function. [1] Despite being just four pages, GAO's report is highly informative because it showcases key bid protest statistics and GAO's most prevalent grounds on which it sustained bid protests during FY23.

To that end, government contractors that ...

On Tuesday, the United States Court of Appeals for the Federal Circuit issued its decision in Harmonia Holdings Group, LLC v. United States, No. 20-1538, a case that has garnered national attention for its potential to alter the way the United States Court of Federal Claims applies the so-called “waiver rule” first articulated in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1038 (Fed. Cir. 2007). Brad English and Emily Chancey represented Harmonia in this case and were excited for the favorable ruling their client received.

The case involved a $325 million IT services ...

On November 30, 2021, Judge Gregory F. Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky issued a preliminary injunction in Commonwealth of Kentucky et al. v. Biden et al. (Case No. 21-cv-00055) that prohibits the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” This Client Alert provides a high-level overview of the decision and highlights similar challenges now pending in various U.S. District Courts throughout the country.

In ...

This Client Alert outlines the critical points for government contractors to know about the Biden Administration’s executive order, regulations, and guidance addressing COVID-19 prevention measures in the workplace.

On September 9, 2021, President Biden issued Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”), to promote the economy and efficiency in federal procurement by ensuring that certain federal prime contractors and subcontractors provide adequate COVID-19 safeguards to their workers performing on or in ...

Most government contracts include a clause giving the government the right to terminate the contract, or any part thereof, for its sole convenience “when it is in the best interests of the government.” FAR Parts 49, 12, 13, and 31 establish the regulatory requirements for termination and settlement of government contracts. The mechanics are specific. Upon receipt of the notice of termination, the prime contractor should immediately stop all work and terminate all subcontracts related to the terminated portion of the prime contract. Inventory disposal schedules must be ...

OTA Overview

The Department of Defense can issue Other Transaction Agreements (“OTA”) for research, prototypes, and production. 10 U.S.C. § 2371b. Research OTAs are available for basic, applied, and advanced research projects. The DoD may also acquire prototypes using OTAs. Production OTAs are only permitted where the government has previously acquired a prototype under an earlier OTA. Additionally, the solicitation for the original prototype must have notified offerors that the government reserved the right to issue a follow-on Production OTA.

OTAs at the GAO

In a ...

Prime contractors are responsible for incorporating the appropriate provisions of their prime contracts into the agreements with their subcontractor. Determining which clauses are applicable to subcontractors and how best to monitor subcontractor compliance needs to be a priority. The first step is identifying contract clauses that are required to be incorporated into the contractor’s subcontracts. These “mandatory flow-downs” are FAR, DFARS, and other contract clauses that, by their own terms, are required to be incorporated into subcontracts. Clauses that must ...

The U.S. Department of Labor (DoL) just announced that the Wage and Hour Division (WHD) recovered a record $304 million in wages owed to workers in the Fiscal Year 2018 (read more here). This includes violations of labor laws unique to federal contractors, such as the McNamara-O’Hara Service Contract Act (SCA). On September 13, 2018, the DOL found that a California-based contractor and five of its subcontractors had violated the SCA. WHD determined the contractor owed over $3.5 million to 1,416 workers (both their own and subcontractor personnel) for failing to pay federal ...

Most contractors are aware that President Trump signed into law the Small Business Runway Extension Act of 2018 on December 17, 2018. The Act modified how the Small Business Administration (SBA) calculates a business’ size for revenue-based size standards. Size has been calculated based on a three fiscal year average of annual receipts. The Act increased the period of time in the calculation from three years to five.

The Act, however, contained no effective date. On December 21, 2018, SBA issued an information notice announcing the new statute would not take effect until the SBA ...

Most companies pursuing government contracts enter into teaming agreements to prepare and submit their proposals. Teaming agreements are an important element of the government contracting proposal process, used to enhance the likelihood of the teaming partners winning a contract by combining complementary capabilities to offer a more comprehensive and competitive solution. Typically, a teaming agreement will describe the anticipated contribution for each team member in performing the prime contract and designate one of the parties as the “prime” and the other as a ...

Brad English and Hobie Frady presented a webinar on March 16 titled Preserve Your Right to Obtain an Equitable Adjustment: Practical Legal and Accounting Advice Before a Change Occurs. The session addressed the following issues related to changes:

• What is a change
• Types of changes
• Formal changes
• Constructive changes
• Authority, Notice, and Duty to Proceed
• Cardinal Changes
• Quantum
• Claims certification and appeals

Brad is a Shareholder and member of the Government Contracts & Bid Protests practice, as well as several practices in the Litigation section at Maynard Nexsen and Gale. He ...

The United States District Court for the Northern District of Alabama recently held that the government cannot continue the suspension of a government contractor where the government does not initiate legal proceedings against the contractor within 18 months.

In Agility Defense and Government Services, Inc., et al. v U.S. Dept. of Defense, et al. DOD suspended Agility International and Agility Defense and Government Services for no reason other than that they were affiliated with Public Warehousing Company, a Kuwaiti corporation. The court noted that while the government has ...