Tips to Maximize Contractor Recoveries for Public Health-Related Claims: Lessons from Pernix Serka and the Ebola Crisis

Justin A. Chiarodo and Stephanie M. Harden

Stephanie Harden's Headshot Photo

Does the mere existence of a deadly epidemic entitle a contractor to monetary relief when it experiences cost increases stemming from that epidemic? Not without Government direction, ruled the Federal Circuit in affirming a decision of the Civilian Board of Contract Appeals (“CBCA”) in Pernix Serka JV.

The facts of Pernix Serka are striking: a contractor repeatedly requests guidance for dealing with a major health crisis, the Government refuses to provide guidance, and the contractor is unable to recoup the additional costs it incurs in order to proceed with performance because the Government provided no guidance.

This timely ruling sheds light on strategies contractors should consider for recouping costs stemming from the COVID-19 pandemic. We provide a roadmap below for navigating these issues in light of Pernix Serka JV.

The 2014 Ebola Crisis

Pernix Serka was in the midst of performing a contract in Sierra Leone when a deadly Ebola outbreak struck the country in 2014. Pernix Serka diligently sought guidance from the Contracting Officer on its State Department (“DOS”) contract, but the Government refused to weigh in on whether it should temporarily shut down its work on the contract. Ultimately, Pernix Serka decided to temporarily withdraw its personnel, which the Government then characterized as Pernix Serka’s “unilateral” decision. When Pernix Serka sought advice on whether and when to resume work, the Government went so far as to say that “DOS will not provide any instructions or directions” regarding whether and when to return to the work site. The contractor ultimately decided to resume performance, but incurred additional costs when it decided to contract for medical facilities and services on the project site.

Continue reading “Tips to Maximize Contractor Recoveries for Public Health-Related Claims: Lessons from Pernix Serka and the Ebola Crisis”

President Biden’s Recent Cybersecurity Executive Order Will Increase Compliance Obligations on the Private Sector

Sharon R. Klein, Alex C. Nisenbaum, Karen H. Shin, Justin A. Chiarodo, and Michael Joseph Montalbano

Companies providing information technology products and services to U.S. government agencies are now required to notify such agencies of cyber incidents and meet specific cybersecurity standards. The executive order attempts to modernize the federal government’s cybersecurity defenses by “protecting federal networks, improving information-sharing between the U.S. government and the private sector on cyber issues, and strengthening the [United States]’ ability to respond to incidents when they occur.” The executive order is just one example of the Biden administration’s push to improve the nation’s data privacy and cybersecurity practices in response to the recent series of ransomware attacks.

On May 12, 2021, President Biden signed an executive order to bolster the federal government’s cybersecurity practices and contractually obligate the private sector to align with such enhanced security practices (“the Order”). The Order comes on the heels of a ransomware attack on Colonial Pipeline that occurred on May 6, 2021, which shut down the largest oil pipeline in the United States and disrupted supplies of gasoline, diesel, and jet fuel to the East Coast. This initiative to improve the security of the software supply chain also stems from the SolarWinds cyberattack that occurred last year. In the attack, Russian hackers used a routine software update that Texas-based SolarWinds Corp. provided to its customers to install malicious code, allowing the hackers to infiltrate nine federal agencies and about 100 companies.

Proposed amendments are expected soon from the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”) that will increase compliance obligations for government contractors and their vendors, building on a string of supply chain and cybersecurity regulation in recent years (including Section 889’s prohibition on the use of certain Chinese telecommunications, new registration requirements in the Supplier Performance Risk System, and the Department of Defense’s Cybersecurity Maturity Model Certification program). We see the biggest impacts on government contractors, such as developers and users of software.

To read the full client alert, please click here

Blank Rome Government Contracts: 2020 Year-in-Review

As 2021 shifts into high gear, Blank Rome’s Government Contracts practice is pleased to share our 2020 Year-in-Review, covering key government contracts issues, recent practice news and recognitions, and our look at the year ahead.

Thanks to the trust and support of our clients and colleagues and our dedication to our Client Service Principles, we helped guide clients through an unprecedented 2020, and look forward to partnering with them to forge ahead in 2021.

We are particularly proud of Blank Rome’s commitment to diversity, equity, and inclusion, including our practice’s facilitation of the ABA Public Contract Law’s 21-Day Racial Equity Habit-Building Challenge. We will continue to actively support these important issues in 2021 and beyond, and firmly believe our collective and sustained action will make a difference in our profession.

Finally, if you have not already, we invite you and your team to subscribe to this Government Contracts Navigator blog, where we cover issues of importance to our government contracting community. We know there are a lot of blogs out there, but we keep a strong focus on the practical, with day-to-day business considerations in mind. Interested in the greatest hits? We’ve included in this report a list of the top 10 read posts in 2020. You can also follow us on Twitter @GovConBR.

Thank you for reading. And please let us know how we can help you and your business. Wishing you and your families health and success in 2021.

Justin A. Chiarodo
Chair, Government Contracts
202.420.2706 | jchiarodo@blankrome.com

Please visit our website to read our entire Blank Rome Government Contracts: 2020 Year-in-Review.

A Conversation with Our Newest Partner, Stephanie Harden

Justin A. ChiarodoDominique L. Casimir, and Stephanie M. Harden

Stephanie Harden's Headshot Photo

We are thrilled to share that Stephanie Harden—a long-time and integral member of our practice group—has been elected to the partnership. For those who haven’t had the chance to connect or work with Stephanie—which we highly recommend!—we wanted to share the highlights of our virtual chat with Stephanie (edited for the blog) to help everyone get to know her better.

First of all, congratulations on your promotion! This is obviously the culmination of many years practicing in the field—but how did you first get interested in government contracts law?

Thank you! I’m very excited about this milestone and helping our clients succeed in my new role.

I spent one of my law school summers at GAO’s Office of General Counsel, where I was first exposed to bid protest litigation. I loved the fast-paced nature of bid protests and was interested in learning more about the field. After law school, I clerked for Judge Victor Wolski on the U.S. Court of Federal Claims, where I learned about a host of government contracts issues and really solidified my interest in government contracts law. Being able to observe and learn from the Judge and the advocates practicing before the Court (both from the Justice Department and private bar) gave me a strong foundation for success.

What do you enjoy most about your practice area?

I love that every day brings new challenges and the opportunity to learn about something new. Whether it’s learning about a new technology or researching a novel legal question or a FAR clause you’ve never examined before, there is rarely a dull moment in this field. Continue reading “A Conversation with Our Newest Partner, Stephanie Harden”

Blank Rome’s Justin Chiarodo Named 2020 Client Service All-Star by BTI Consulting Group

Blank Rome Partner Justin A. Chiarodo has been named to the BTI Client Service All-Stars 2020, which recognizes leaders in superior client service identified exclusively by corporate counsel. The 2020 All-Stars were selected for their keen understanding of business impacts and unwavering commitment to client objectives, which BTI Consulting Group praises as “an astounding feat when also assessing a global pandemic alongside growing client expectations of law firms.” Justin notably joins the ranks of only three Government Contracts attorneys nationwide recognized in this year’s report.

Now in its 19th year of publication, BTI Client Service All-Stars 2020 features 475 individual attorneys from 181 law firms across the United States. The All-Stars designation, which is used by corporate counsel and law firms alike to identify the attorneys delivering the best client service, is a data-driven ranking based solely on in-depth telephone interviews with leading legal decision makers. To see the full list of 2020 All-Stars, please click here

At Blank Rome, Justin serves as co-chair of the Firm’s nationally recognized Government Contracts practice group. He focuses his practice on all aspects of federal, state, and local procurement law, and has spent his entire career helping leading and emerging government contractors successfully navigate high-stakes litigation, compliance, and regulatory matters. Earlier this year, Justin was named a Government Contracts MVP by Law360, and he is annually ranked for Government Contracts Law in Chambers USAThe Legal 500, and Super Lawyers.

 

Where Are We Going with Section 889 Part B?

Justin A. Chiarodo, Merle M. DeLancey, Jr., and Robyn N. Burrows

About two months have passed since the August 13, 2020, effective date of Part B of Section 889 of the FY 2019 National Defense Authorization Act. Part B, sometimes referred to as the Chinese telecommunications equipment ban, broadly prohibits the federal government from contracting with entities that use certain Chinese telecommunications (including video surveillance) equipment and services.

After the FAR Council published its July 10, 2020, Interim Rule, contractors, large and small, spent countless hours working to be able to certify compliance by August 13. This deadline was critical because the Interim Rule said that absent such a certification, a contractor was ineligible for future contract awards. That is, government agencies were prohibited from renewing or extending existing contracts with contractors unable to certify Part B compliance. Indeed, agencies were prohibited from issuing an order under an existing contract to a contractor that failed to certify compliance.

Yet, despite the Rule’s laudable policy goals, the government’s piecemeal and inconsistent implementation has placed government contractors in an untenable position. Continue reading “Where Are We Going with Section 889 Part B?”

Blank Rome’s Justin Chiarodo Named Government Contracts MVP by Law360

We are pleased to announce that Partner Justin A. Chiarodo, who serves as co-chair of Blank Rome’s nationally recognized Government Contracts practice group, has been named a Law360 MVP for 2020.

The notable MVP awards recognize attorneys who have “distinguished themselves from their peers by securing hard-earned successes in high-stakes litigation, complex global matters, and record-breaking deals.” Justin joins a select group of only six attorneys nationwide recognized in the Government Contracts category.

The 2020 Class of MVPs includes 189 attorneys from 76 firms spanning 38 practice areas. Competition for the MVP distinction was especially strong this year with Law360 editors reviewing more than 900 submissions to determine the winners. Profiles of the winners will be promoted over the course of the following weeks on Law360. An excerpt of Justin’s MVP profile is shared below.

Click here to view Justin’s full profile.

Our Clarion Call: Thoughts on Our 21-Day Racial Equity Habit Building Challenge

Dominique L. Casimir and Justin A. Chiarodo

A few weeks ago we wrote about our Government Contracts practice group’s decision to opt in to the 21-Day Racial Equity Habit Building Challenge (the “Challenge”) launched by the American Bar Association (“ABA”) Section of Public Contract Law. The 21-Day Challenge was a syllabus of 21 daily assignments—curated for the ABA by Dominique Casimir—focusing on the Black American experience, including Black history, identity and culture, the experience of anti-Black racism in America, and the intersection between systemic racism and the legal profession.

What We Did: We invited our clients to participate with us in a series of weekly discussion groups to share perspectives on the racial equity movement currently underway in this country, to reflect on how we got here, and to challenge ourselves to consider what we are doing—in our respective workplaces, and as individual lawyers—to work towards racial equality. This experience was unlike anything we have done with our clients before, and admittedly we were not sure how clients would respond when we invited them to engage with us in an ongoing series of small-group, candid discussions about a topic as sensitive as race. We were incredibly humbled that so many of our clients enthusiastically welcomed this opportunity. Continue reading “Our Clarion Call: Thoughts on Our 21-Day Racial Equity Habit Building Challenge”

Part B Interim Rule Bans Contractors from Using Covered Technology Starting August 13th: 5 Steps for Meeting the Compliance Deadline

Justin A. Chiarodo, Merle M. DeLancey, Jr., and Robyn N. Burrows

We previously discussed key elements of the newly released interim rule (“the interim rule” or “the rule”) implementing Part B of Section 889 (“Part B”), which prohibits the federal government from contracting with entities that use certain Chinese telecommunications equipment. This post provides a more detailed analysis of the scope and application of the rule, as well as five compliance recommendations given the impending August 13th deadline.

Rule Applies to All Contracts Effective August 13, 2020

Part B applies to all solicitations, options, and modifications on or after August 13th, including contracts for commercial items, commercially available off-the-shelf (COTS) items, and contracts at or below both the micro-purchase and simplified acquisition thresholds. Like it did with respect to Part A, GSA intends to issue a Mass Modification requiring contractors to certify compliance with Part B. GSA has also released Q&As and FAQs to assist contractors with Part B implementation. The interim rule acknowledges that Part B will have a broad impact across contractors in a range of industries, including healthcare, education, automotive, aviation, and aerospace. The rule, however, does not apply to federal grant recipients (which are subject to a separate rulemaking). Continue reading “Part B Interim Rule Bans Contractors from Using Covered Technology Starting August 13th: 5 Steps for Meeting the Compliance Deadline”

Our Clarion Call: Join Us in the ABA’s 21-Day Racial Equity Habit Building Challenge

Dominique L. Casimir and Justin A. Chiarodo

This will not be a typical Government Contracts Navigator post. But it concerns an issue as important to the government contracts bar as any new law, regulation, or judicial decision. We all have stories about how we came to practice in this vibrant field, which plays such a critical role in protecting our nation and advancing the public policies of the United States—including due process, fair competition, and equal opportunity. But we cannot ignore the reality that the great diversity of the government contracts law practice is not well-reflected in our bar of practitioners.

The events of recent weeks have led us to think hard about we what can do to help achieve greater racial diversity in our practice area. As lawyers, we typically solve the most complex problems we face by developing creative teams whose members are open to learning, collaborating, and communicating. That is why, as a practice group, we’ve jumped at the chance to participate in the ABA Section of Public Contract Law’s 21-Day Racial Equity Habit Building Challenge (the “21-Day Challenge”). We believe that the 21-Day Challenge gives us an opportunity to learn, collaborate, and communicate with one another on one of the most pressing and important challenges in our professional lives: creating and maintaining a diverse and inclusive government contracts bar. Our practice group is “all in,” and we invite you to join us as we answer the ABA Section of Public Contract Law’s invitation to participate in the 21-Day Challenge. Continue reading “Our Clarion Call: Join Us in the ABA’s 21-Day Racial Equity Habit Building Challenge”