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. Chiarodo
Dominique 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”

Newly Released Interim Rule Implementing Part B of Section 889

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

On July 10, the government issued the    long-awaited Interim Rule implementing Part B of Section 889 (here is a link to the pre-publication version, with the official version soon to follow). Part B prohibits the federal government from contracting with entities that use certain Chinese telecommunications equipment (previously discussed in our blog posts here and here). The Interim Rule is 86 pages and addresses issues related to compliance with Part B, as well as clarifying aspects of Part A.

These are the key points federal contractors need to know:

  • Effective Date: The effective date remains August 13, 2020. The ban applies to solicitations, options, and modifications on or after August 13. However, as we previously discussed, the Department of Defense may allow its contractors more time to comply, despite the statutory deadline.
  • Required Representation: An offeror must represent that, after conducting a reasonable inquiry, it does/does not use covered telecommunications equipment/services.
    • “Reasonable inquiry” means an inquiry designed to uncover any information in the entity’s possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity. An internal or third-party audit is not required.
  • Scope of “Use”: Applies to the contractor’s use of covered technology, regardless of whether it is used to perform a federal contract. Thus, a contractor’s commercial operations are included.
  • Affiliates/Subsidiaries: The required representation is not applicable to affiliates or subsidiaries at this time. The FAR Council is considering whether to expand the scope of the representation/prohibition to cover an offeror’s domestic affiliates, parents, and subsidiaries. If expanded, it would be effective August 13, 2021.
  • Subcontractors: The ban and required representation are not applicable to subcontractors at this time. The ban only applies at the prime contractor level and does not include a flow down obligation.
  • Detailed Waiver Process: The Interim Rule includes a detailed and complex process for seeking a waiver (really a two-year delayed application).
  • Suggested Compliance Steps: The Interim Rule suggests contractors adopt a “robust, risk-based compliance approach” to include educating personnel on the ban and implementing corporate enterprise tracking to identify covered equipment/services.

Regulators are still seeking feedback from industry, which suggests the government’s willingness to incorporate changes in a final rule. But prime contractors need to act now. In the next 30 days, prime contractors need to determine through a “reasonable inquiry” whether they use covered equipment, regardless of whether that use relates to performance of a federal contract. To demonstrate a reasonable inquiry, contractors should memorialize all steps taken and decisions made in performing the inquiry.

A more detailed analysis is forthcoming. In the meantime, if you have any questions regarding compliance, please contact one of Blank Rome’s Government Contracts practice group attorneys for guidance.

What Does a Potential One-Year Delay for Part B of Section 889 Mean for Your Compliance Efforts?

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

In remarks to Congress and statements this week, the Department of Defense (“DoD”) announced that it is considering a one-year delay for full implementation of Part B of the Section 889 ban (we previously summarized the ban, which prohibits the government from contracting with entities using certain Chinese telecommunications equipment, here). The ban is currently scheduled to go into effect on August 13, 2020. What does this welcome development mean for contractors? We think it warrants prioritizing near-term compliance efforts to high-risk areas, pending forthcoming rulemaking that will provide needed specifics on the way forward.


During June 10 remarks before the House Armed Services Committee, Undersecretary for Acquisition and Sustainment Ellen Lord expressed the DoD’s full support for the intent of Section 889, but admitted she is “very concerned” about being able to accomplish Part B implementation by August 13. As to whether the DoD can meet the current timeline given COVID-19 disruptions and the lack of an interim rule, Ms. Lord acknowledged that “we need more time” for contractors to comply.

Following the undersecretary’s testimony, the DoD announced that it is considering adding contract language giving its suppliers an additional year to reach full compliance with Part B. Though not final, the DoD’s proposed delay could relieve DoD contractors from full compliance with the impending August deadline. We anticipate this approach would be similar to the phase-in period for compliance with the Defense Federal Acquisition Regulation Supplement Safeguarding and Cyber Incident Reporting clause. It is not yet clear whether the Office of Management and Budget, which currently has the draft interim rule for Part B, will incorporate a delayed implementation into that forthcoming rule.

The DoD also signaled that it is poised to advocate for a more risk-based approach to Part B implementation and rulemaking. During her testimony, Ms. Lord expressed concern with the “unintended consequences” of a minor infraction several layers deep within the supply chain potentially shutting down major portions of the defense industrial base by disqualifying key prime contractors from doing business with the federal government. The DoD suggested that the use of a risk-based approach may be useful to achieve effective implementation. The DoD’s consideration of a risk-based approach indicates that it is equally concerned about its contractors’ ability to comply with a strict application of Part B.

How DoD’s Announcements Inform Compliance Efforts with Part B

Without an interim rule and with less than two months before the statutory August deadline, how should contractors begin implementing Part B? Given the DoD’s recent comments suggesting a risk-based approach, contractors should consider adjusting their Part B implementation efforts using a risk assessment framework, prioritizing high-risk areas. That is, contractors should identify the extent to which telecommunications or video surveillance equipment is used to support government contracts, the nature of that work, and the frequency with which the technology is used.

The nature of the product’s telecommunication function also informs its risk potential. For example, computers, routers, phones, and network equipment can generally be considered a higher priority area than technology that, although technically subject to the ban, presents a moderate to low cybersecurity risk, depending on the nature and frequency of use (e.g., HVAC systems, fax machines, copiers, scanners).

Contractors should also communicate with key suppliers to ensure that they are aware of the rule and are similarly working to prepare for Part B.

Although the DoD’s statements are welcome news—and reflect that the government is mindful of the challenges presented by the ban—the DoD remains committed to Section 889 and contractors should proceed accordingly.