Court of Federal Claims Confirms “Technical Data” Grants No General Right of Access to Contractor Information

Samarth Barot and Luke W. Meier 

In an important decision for preserving contractor data rights, the Court of Federal Claims recently confirmed that “technical data” has a limited scope and, per the DFARS, includes only information “of a scientific or technical nature.” Raytheon Co. v. United States, No. 19-883C, 2022 WL 2353085 (Fed. Cl. June 15, 2022).

Pursuant to DFARS 252.227-7013, if any data is identified as “technical data” the Government may be able to assert licensing rights in a contractor’s noncommercial technical data. See DFARS 252.227-7013(b). In contrast, for any data identified as proprietary non-technical data, the Government cannot assert any licensing rights in the proprietary non-technical data.

Continue reading “Court of Federal Claims Confirms “Technical Data” Grants No General Right of Access to Contractor Information”

New SBA Rule on Small Business Past Performance Also Has Implications for Large Businesses

Merle M. DeLancey Jr. 

The U.S. Small Business Administration (“SBA”) recently issued a final rule that creates new opportunities for small businesses to submit relevant past performance, and new requirements for large/other than small prime contractors to provide past performance reviews to first-tier small business subcontractors.

The final rule is intended to help small businesses overcome the hurdle of having minimal past performance to use in competitive procurements. The rule creates new mechanisms to permit small businesses to use the past performance of a joint venture in which it was a member, or to use its performance as a first-tier subcontractor. The new rule takes effect on August 22, 2022.

Continue reading “New SBA Rule on Small Business Past Performance Also Has Implications for Large Businesses”

Complying with the Uyghur Forced Labor Prevention Act’s Strict Supply Chain Rules

Anthony Rapa, Matthew J. Thomas, and Patrick F. Collins 


The Uyghur Forced Labor Prevention Act (“UFLPA” or “Act”), which took effect last month, ushers in a new era of supply chain diligence for importers. The Act creates a rebuttable presumption that any goods produced in whole or in part in the Xinjiang Uyghur Autonomous Region (“XUAR”) of the People’s Republic of China (“PRC”), or by entities identified by the U.S. government on the UFLPA Entity List (“Entity List”), are presumed to be made with forced labor and thus are prohibited from entry into the United States under Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307). Notably, the presumption applies to downstream products that incorporate restricted goods, regardless of where the downstream products are made.

U.S. Customs and Border Protection (“CBP”) is now authorized to detain and exclude and/or seize goods that it suspects were produced in the XUAR or by entities on the Entity List.

Importers whose supply chains have links to the XUAR and China should be aware of the implications of UFLPA enforcement, including with respect to due diligence considerations, supply chain tracing and management, and the evidence required to overcome the UFLPA’s rebuttable presumption. There is no grace period for enforcement.

UFLPA OVERVIEW

President Biden signed the UFLPA into law on December 23, 2021. Effective on June 21, 2022, the UFLPA established a rebuttable presumption that the importation of any “goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part” in the XUAR, or produced by entities designated by the Forced Labor Enforcement Task Force (“FLETF”) as involved in specified XUAR-related activity, is prohibited by Section 307 of the Tariff Act of 1930, which prohibits the importation of items made from forced labor. The presumption applies unless CBP determines that the importer completely and substantively responded to all CBP inquiries, fully complied with FLETF’s guidance, and established by clear and convincing evidence that the goods were not produced using forced labor.

To read the full client alert, please visit our website

Lifecycle of a Claim, Part I: Identifying the Change and Providing Notice

Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right to get our timely posts delivered directly to your inbox.

Stephanie M. Harden and David L. Bodner ●

Stephanie Harden's Headshot Photo

Welcome to our new “Lifecycle of a Claim” series. This series will explore the Contract Disputes Act claims process, with practical guidance stemming from recent case law every step of the way. Click the subscribe button on the right to get timely updates right in your inbox!

The claims landscape for government contractors can be a minefield of both procedural and substantive issues. Through this series, we are providing a guide to one common type of claim: those arising out of a “change” to the contract.

We are pleased to introduce this infographic (click here or the image below to expand), which illustrates the lifecycle of a typical claim:

This post focuses on Steps 1 and 2 of this process: identifying when a change has occurred and providing timely notice to the Contracting Officer. We begin with a few foundational questions:

What is a change?

There are two primary types of changes:

      • Actual Changes: According to the Federal Acquisition Regulation (“FAR”), a change occurs when the Contracting Officer issues a written order to make changes within the general scope of the contract to matters such as drawings, designs, or specifications; the method of shipment or packing; or the place of delivery. See, e.g., FAR 52.243-1.
      • Constructive Changes: A constructive change arises when the contractor is required to perform work beyond the contract requirements, but the Government does not issue a formal change order. Constructive changes can arise from informal orders, defective specifications or other misrepresentations, interference from the Government, or constructive accelerations of performance.
Continue reading “Lifecycle of a Claim, Part I: Identifying the Change and Providing Notice”

Law360 Rising Star: Elizabeth N. Jochum

Blank Rome partner Elizabeth N. Jochum was profiled as a 2022 Government Contracts Rising Star by Law360, notably honoring her as one of the top five government contracts attorneys nationwide under the age of 40. (See Law360 Names Elizabeth N. Jochum a 2022 Government Contracts Rising Star)

In her profile, Elizabeth talks about why she’s a government contracts attorney, her biggest recent case and other important cases throughout her career, and her proudest moments as an attorney.

You can read an excerpt on our website

Register Your Affirmative Action Plan Now!

Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right to get our timely posts delivered directly to your inbox.

Merle M. DeLancey Jr. 

Federal government contractors and subcontractors with 50 or more employees and a federal contract or subcontract with a value of $50,000 or more measured during any 12-month period are required to develop a written Affirmative Action Program (“AAP”) within 120 days from the start of the federal contract.

The Office of Federal Contract Compliance Programs (“OFCCP”) has established a Contractor Portal for federal government contractors to register and certify that they have developed and maintained affirmative action programs at each of their establishments or functional units: OFCCP Contractor Portal. Contractors that do not register and certify are more likely to be selected for an OFCCP AAP audit.

The deadline to register and submit AAP certifications is June 30, 2022.

DoD Offers Guidance for Contractors on Inflation and Economic Price Adjustment Clauses

Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right to get our timely posts delivered directly to your inbox.

Amanda C. DeLaPerriere 

On May 25, 2022, the Department of Defense (“DoD”) issued a memorandum recognizing that contractors are not immune from the “period of unusually high” inflation. The memorandum, titled “Guidance on Inflation and Economic Price Adjustments,” provides guidelines on when relief from cost increases due to inflation is appropriate and provides considerations for the proper use of economic price adjustment (“EPA”) clauses when entering into new contracts.

For existing DoD contracts, whether contractors can get relief from inflation depends on the type of contract.

Continue reading “DoD Offers Guidance for Contractors on Inflation and Economic Price Adjustment Clauses”

June 28, 2022: “Emerging Issues and Trends in Government Investigations and Fraud Enforcement”

Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right to get our timely posts delivered directly to your inbox.

Jennifer A. Short headshot image

Blank Rome partners Jennifer A. Short and Justin A. Chiarodo, chair of the firm’s Government Contracts practice group, will serve as presenters for the CLE/CPD online webinar, Emerging Issues and Trends in Government Investigations and Fraud Enforcement, hosted by the Association of Corporate Counsel’s National Capital Region (“ACC NCR”) on Tuesday, June 28, 2022, from 12:30 to 2:00 p.m. EDT.

For more details, visit our website.

Blank Rome’s Government Contracts Practice and Attorneys Highly Ranked in Chambers USA and The Legal 500

Chambers USA 2022

Chambers USA 2022 recognized Blank Rome as a leader in Government Contracts nationally in “The Elite Legal Rankings” and ranked Justin A. Chiarodo and David M. Nadler.

Chambers noted that clients say that Justin “is a skilled and service-minded lawyer who cuts to the chase and avoids red tape” “He is an excellent leader and superb relationship partner” and that Dave “is a terrific lawyer who anticipates issues and is forward-thinking about his advice.”

To view all of Blank Rome’s Chambers USA 2022 rankings, please visit our website.


The Legal 500 United States 2022

Blank Rome was ranked as a “Recommended Firm” in the area of “Government: Government Contracts” and several of our Government Contracts attorneys were highly ranked and recommended in The Legal 500 United States 2022, including:

“Leading Lawyers”: The Legal 500’s Guide to Outstanding Lawyers Nationwide

  • Justin A. Chiarodo
  • Scott Arnold

“Next Generation Partners”: The Legal 500’s Guide to Up-and-Coming Lawyers Nationwide

  • Dominique L Casimir (Government: Government Contracts)

Recommended Attorneys

  • Dominique Casimir
  • Justin Chiarodo
  • Luke Meier
  • Scott Arnold
  • Stephanie Harden

Key Lawyers

  • Scott Arnold
  • Dominique Casimir
  • Luke Meier
  • Stephanie Harden

To view all of Blank Rome’s Legal 500 United States 2022 rankings, please visit our website.

June 23, 2022: “Significant Regulatory and Litigation Developments—from Bid Protests to Vaccine Mandates—and Beyond”

Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right to get our timely posts delivered directly to your inbox.

Justin A. Chiarodo will serve as a panelist at American Conference Institute’s 13th Advanced Forum on DCAA & DCMA Cost, Pricing, Compliance & Audits, being held June 22 and 23, 2022, in Arlington, VA.

Justin’s session, “Significant Regulatory and Litigation Developments—from Bid Protests to Vaccine Mandates—and Beyond,” will take place on Thursday, June 23, from 11:50 a.m. to 12:45 p.m.

For more details, visit our website.

%d bloggers like this: