Author: Blank Rome LLP

Expect GSA to More Closely Scrutinize Trade Agreements Act Compliance

Merle M. DeLancey Jr.

On January 21, 2022, the General Services Administration (“GSA”) Office of Inspector General (“OIG”) informed the Federal Acquisition Service (“FAS”) that ongoing monitoring by the OIG found that the FAS failed to properly monitor the sale of products for compliance with the Trade Agreements Act (“TAA”) during the COVID-19 response. Previously, in April 2020, GSA relaxed compliance with the TAA for a limited number of Federal Supply Classes (“FSCs”) to aid the government’s response to the COVID-19 pandemic. The applicable FSCs included those covering N95 masks, cleaners and disinfectants, disposable gloves, and hand sanitizers. After several extensions, the TAA exception policy expired on April 30, 2021.

The OIG identified two deficiencies in FAS’ implementation of the TAA exception policy. First, the OIG found that FAS failed to properly track the addition of non-compliant products to contracts. As a result, after expiration of the exception policy, there was no effective way for GSA to remove the non-compliant products from contracts. Second, the OIG found that GSA improperly permitted the addition of non-compliant products to GSA contracts. For example, some products that were added were unrelated to the government’s response to the pandemic; some products were added to GSA contracts prior to the effective date of the TAA exception policy; and, remarkably, in one case, a product was added to a contract that identified North Korea as its country of origin.

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Affirmative Action Program Compliance Alert: OFCCP Online Contractor Portal

Merle M. DeLancey Jr.

Beginning February 1, 2022, contractors and subcontractors required to maintain affirmative action plans (“AAPs”) can register for access to a new secure online contractor portal. The portal was developed and will be monitored by the Office of Federal Contract Compliance Programs (“OFCCP”). OFCCP has been working on an information and verification process for three years. In August 2021, the Office of Management and Budget approved OFCCP’s use of the portal. The portal provides contractors a secure method of (i) annually certifying compliance with AAP requirements and (ii) submitting AAPs to OFCCP during audits or compliance evaluations.

Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973 require contractors and subcontractors that hold a contract valued at $50,000 or more and employ 50 or more employees to comply with equal employment and affirmative action requirements. This includes developing and maintaining written AAPs. Currently, only services and supply contractors, not construction contractors, are required to certify compliance.

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60-Second Sustains: Insight Technology Solutions, Inc.

Welcome to our new series “60-Second Sustains”! We’ll keep you updated on who is winning bid protests and why. Hit the subscribe button on the right to get timely updates right in your inbox!

Elizabeth N. Jochum

Insight Technology Solutions, Inc.
B-420133.2, .3, .4

  • Protester alleged that the awardee misrepresented the experience of one of its proposed key personnel, claiming the individual had 9 years of relevant experience when in fact the individual did not meet even the minimum required 5 years of experience.
  • The protester pointed to the proposed key person’s LinkedIn profile in support of the argument that the individual had less than the required experience.
  • GAO agreed that the awardee materially misrepresented the individual’s relevant experience and found the agency relied on that misrepresentation in making its source selection decision.
  • GAO recommended, as a result, that the Agency exclude the awardee’s proposal from the competition.
  • GAO also found that the agency had engaged in disparate treatment by crediting the awardee for its approach to back-filling vacancies, but not crediting the protester’s proposal despite “nearly identical” language.

FCA/FCPA: Fraud and Enforcement

Jennifer A. Short headshot image

Blank Rome Partner Jennifer A. Short will serve as a speaker at Pub K Annual Review 2022, a four-day online event being held by PubKGroup January 24 through 27, 2022.

Jennifer’s session, “FCA/FCPA: Fraud and Enforcement,” will take place on Thursday, January 27, from 12:00 to 1:50 p.m. EST, and will break down the top trends in enforcement of the False Claims Act (“FCA”) and Foreign Corrupt Practices Act (“FCPA”).

Other panels include:

      • Bid Protests
      • Investigations, Disclosures, S&D
      • Labor and Employment
      • Costs, Pricing, and Audits
      • Grants and Cooperative Agreements
      • Cybersecurity and Information Technology (“CMMC”)
      • Claims, Disputes, and Terminations
      • Construction Contracting
      • Small Business Contracting
      • Mergers and Acquisitions
      • Statutes, Regulations, EOs, and Policies

CLE may be available.

Blank Rome is pleased to be a sponsor of this program.

For more information and to register, please visit the event webpage. 

The Government Will Likely Look to the Defense Production Act to Fulfill Its 500 Million COVID-19 Rapid, At-Home Test Kits Requirement

Merle M. DeLancey Jr. and John M. Clerici*


Last week, in response to the Omicron variant, President Biden announced the Government intends to purchase 500 million at-home, rapid COVID-19 tests for distribution to Americans. According to the announcement, Americans will be able to order test kits to be delivered to their homes starting in January. While this may have been a good sound bite, as discussed below, it does not appear realistic. More likely, while Americans may be able to place orders in January, those orders may not be filled until several months into 2022.

As widely reported, rapid COVID-19 at-home test kits are already in short supply. Moreover, the Government has yet to enter into additional contracts beyond the limited contracts to a small number of suppliers previously announced by the Defense Logistics Agency (“DLA”) and a handful of “prototype” contracts finalized in 2020 under the Trump administration. The Government has not made any recent additional contract awards for rapid COVID-19 at-home test kits.

On December 22, one day after the president’s announcement, the Department of Defense (“DoD”), on behalf of the Department of Health and Human Services (“HHS”), issued a Request for Information (“RFI”) seeking information to assess market availability and sourcing for rapid COVID-19 at-home tests. The RFI, however, is not an actual procurement nor contract award and merely seeks information for 500,000 test kits for agency “personnel use.” Responses were due by 3:00 p.m. on December 24. (See, Rapid COVID-19 Antigen Test Kits.) Proposals to supply test kits are unlikely until after a Request for Proposal (“RFP”) has been issued. As of today, no RFP has been issued.

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Government Contractor Q&A: Impact of Nationwide Injunction Prohibiting Enforcement of Federal Contractor Vaccine Mandate

Scott Arnold, Justin A. Chiarodo, and Stephanie M. Harden

Stephanie Harden's Headshot Photo

Yesterday the U.S. District Court for the Southern District of Georgia issued a preliminary injunction against enforcement of Executive Order (“EO”) 14042, under which prime contractors and subcontractors are required to ensure that all of their employees working “on or in connection with” covered federal contracts are fully vaccinated against COVID-19 (“Vaccine Mandate”). The order was issued in a lawsuit filed by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; governors of several of those states; and various state agencies that challenged the Biden Administration’s authority to issue the Vaccine Mandate. In its decision, State of Georgia, et. al. v. Biden, No. 1:21-cv-163, the court agreed with the plaintiffs’ argument that the Administration improperly relied on the Federal Property and Administrative Services Act (“FPASA”) to issue the Vaccine Mandate, concluding that the FPASA’s authorization for the President to impose policies to promote economy and efficiency in procurement did not extend to polices focused primarily on public health.

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Blank Rome Welcomes Experienced Government Contracts Partner in Washington, D.C.

Blank Rome LLP is pleased to announce that Elizabeth N. Jochum has joined the firm’s Washington, D.C., office as a partner in the Government Contracts practice group. A skilled litigator and counselor with a significant background in white collar defense and investigations matters, Elizabeth joins Blank Rome from Smith Pachter McWhorter PLC where she was a partner.

“We are pleased to welcome Elizabeth to our firm and leading Government Contracts practice,” said Grant S. Palmer, Blank Rome’s Managing Partner and CEO. “Government contractors face a complex landscape right now, and Elizabeth’s significant experience will greatly benefit our clients in both achieving their goals and successfully working with the public sector.”

Read more about Elizabeth on our website.

The Federal Contractor Vaccine Mandate: What You Need to Know

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DOWNLOAD THE WEBINAR MATERIALS

Brian S. Gocial, Stephanie M. Harden, and Frederick G. (“Gus”) Sandstrom

Stephanie Harden's Headshot Photo
Gus Sandstrom's headshot photo

Blank Rome LLP and the National Defense Industrial Association (“NDIA”) Delaware Valley Chapter are pleased to present this new live webinar on Monday, December 6, 2021, from 12:00 to 1:00 p.m. EST.

The rules and guidance around the federal contractor COVID-19 vaccine mandate are changing by the day. Please join Blank Rome’s Government Contracts and Labor & Employment attorneys for timely analysis of what federal contractors need to be prepared, including an in-depth discussion of:

  • Latest guidance: What do prime contractors need to know to comply? 
  • Which of my employees are covered by the mandate? 
  • Does the mandate apply to subcontractors? 
  • How do I deal with exemption requests? 
  • What should I do if my workforce is not fully vaccinated?

PRESENTERS

ABOUT NDIA

The National Defense Industrial Association drives strategic dialogue in national security by identifying key issues and leveraging the knowledge and experience of its military, government, industry, and academic members to address them. You can learn more about them on their website.

QUESTIONS? Please contact Alena Leon, Business Development Consultant.

2021 National Law Journal Award for Professional Excellence—DC Rising Star: Luke W. Meier

Blank Rome LLP partner Luke W. Meier was profiled in the 2021 National Law Journal Awards: Professional Excellence—DC Rising Stars supplement, in recognition of being recently honored as one of the region’s 40 most promising lawyers age 40 and under. Announced in August 2021, the 2021 Rising Star list “highlights lawyers who have wielded influence in their practice areas in the D.C. area and beyond.”

To read Luke’s profile, as published in The National Law Journal, please visit our website.

CMMC 2.0 Brings Much Needed Relief to the Defense Industrial Base

Michael J. Montalbano

In response to more than 850 public comments, the Department of Defense (“DOD”) has decided to significantly revamp the Cybersecurity Maturity Model Certification (“CMMC”) program. On November 4, 2021, DOD announced that it was replacing the current CMMC program with CMMC 2.0, which is expected to significantly reduce the regulatory burden on companies in the Defense Industrial Base (“DIB”). DOD made three significant changes through the new CMMC 2.0 program:

Reduces the number of CMMC levels. As we explained in earlier posts, CMMC 1.0 originally had five CMMC levels of ascending sophistication. CMMC 2.0 now only has three levels:

      • CMMC 2.0 Level One: This level will apply to most DIB companies and requires compliance with 17 basic cyber hygiene practices.
      • CMMC 2.0 Level Two: This level applies to DIB companies who will receive controlled unclassified information (“CUI”) and is expected to align with the requirements under NIST SP 800-171. Notably, DOD already requires most DIB companies receiving CUI to comply with NIST SP 800-171 through the cybersecurity DFARS clause 252.204-7012.
      • CMMC 2.0 Level Three: DOD is still developing the requirements for this level, but we expect that this level will apply to only the most sensitive and high-risk DOD projects.
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