Proposed Rule for PLA Will Substantially Shift Federal Construction Landscape

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Carolyn R. Cody-Jones and Luke W. Meier  ●

The FAR Council recently published a proposed rule mandating the use of project labor agreements (“PLAs”) on federal construction projects where the total estimated cost to the government is $35 million or more. See FAR Case 2022-003, 87 FR 51044 (Aug. 19, 2022). The proposed rule codifies President Biden’s February 4, 2022, Executive Order No. 14063. 87 FR 7363 (Feb. 9, 2022). Certain exceptions apply, and for projects below $35 million whether to mandate PLAs is left to the discretion of each federal agency. A PLA is a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.

Why it’s significant: The proposal rule, and the underlying Executive Order, further enhance an Obama-era Executive Order that encouraged PLAs on federal construction projects over $25 million, but did not require it. 74 FR 6985 (Feb. 11, 2009). The new Executive Order puts forth the new rule to seek increased “economy and efficiency,” arguing that large-scale construction projects can create “special challenges” for efficient and timely procurement, and contractor labor disputes can cause significant project delays. During the Obama and Trump Administrations, construction industry trade groups sought revocation of the Obama Executive Order, arguing it increases taxpayer costs and filing pre-award bid protests against agencies implementing a PLA requirement, in order to have it removed. During the time that rule was in effect, between 2009 and 2021, the FAR Council estimated that a PLA was used only 12 times despite there being roughly 2,000 eligible contracts. The new Biden Executive Order and proposed rule firmly moves the industry requirements on federal projects in the opposite direction and establishes a clear federal prerogative for PLAs on large construction projects.

Effects on the industry: Once in effect, the proposed rule will cause a significant shift in the federal construction industry. Recent Bureau of Labor Statistics estimates show that only 12.6 percent of the construction work force belong to unions. This means a contractor may face staffing challenges arising from a restricted pool of potential candidates. The FAR Council notes in the proposed rule that the average number of construction awards valued at $35 million or more, from Fiscal Year 2019 through Fiscal Year 2021, was approximately 119 annually, with an average cost of $114 million per award.

Continue readingProposed Rule for PLA Will Substantially Shift Federal Construction Landscape

60-Second Sustains: Selex EX, Inc.

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Elizabeth N. Jochum and Luke Meier

Selex EX, Inc.

  • Selex ES argued that the solicitation, which sought proposals to replace a tactical air navigation system, was unduly restrictive of competition because it could be interpreted to require offerors meet the navigation system’s flight check qualification and readiness level requirements at the time of proposal submission rather than at the time of award or performance.
  • GAO found that the solicitation was patently ambiguous regarding whether the requirements are due at time of proposal submission or at time of award and that Selex ES was prejudiced by the ambiguity and GAO sustained the protest on that basis.
  • GAO declined to address whether it would be unduly restrictive of competition to expect offerors to meet the requirements at the time of proposal submission given the patent ambiguity.
  • GAO recommended the agency amend the solicitation to clarify when various requirements are due.

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”

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.

DoD’s Final Rule on Enhanced Post-Award Debriefings Provides Offerors Clarity on Automatic Stay Deadlines and Access to Agency’s Redacted Source Selection Decisions

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Robyn N. Burrows and Luke W. Meier

The Department of Defense (“DoD”) recently issued its final rule amending the Defense Federal Acquisition Regulation Supplement (“DFARS”) to provide offerors enhanced post-award debriefing rights. DoD has provided these enhanced debriefing procedures since 2018 through a FAR Class Deviation, allowing offerors to submit additional questions after receiving the post-award debriefing. Four years later, DoD’s final rule clarifies when the clock for an automatic stay begins in an enhanced debriefing and provides greater transparency by allowing unsuccessful offerors in certain procurements access to the agency’s redacted source selection decision.

We highlight below several key elements of the final rule:

Access to Redacted Source Selection Decision Document

The final rule requires DoD to provide the source selection decision document in certain circumstances, redacted to remove confidential and proprietary information of other offerors. For awards over $100 million, DoD must automatically provide the source selection decision during the debriefing. Small businesses and nontraditional defense contractors on procurements resulting in awards over $10 million and up to $100 million are also entitled to a copy of the decision but must specifically request it—the agency will not automatically provide it to offerors.

Continue reading “DoD’s Final Rule on Enhanced Post-Award Debriefings Provides Offerors Clarity on Automatic Stay Deadlines and Access to Agency’s Redacted Source Selection Decisions”

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.

Blank Rome Government Contract and White Collar Defense & Investigations Attorneys Appointed to American Bar Association’s Public Contract Law Section Leadership

Blank Rome LLP is pleased to announce that partners Dominique L. CasimirJustin A. ChiarodoStephanie M. HardenLuke W. Meier, and Jennifer A. Short; senior counsel David M. Nadler; and associate Robyn N. Burrows, of the firm’s nationally recognized Government Contracts group, have been appointed to leadership roles for the American Bar Association’s (“ABA”) Public Contract Law Section.

They will serve in the following roles for the 2021–2022 term:

      • Dominique Casimir: Co-Chair – Debarment & Suspension Committee; Vice-Chair – Diversity Committee
      • Justin Chiarodo: Vice Chair – Mergers & Acquisitions Committee
      • Stephanie Harden: Vice Chair – Accounting, Cost & Pricing Committee
      • Luke Meier: Vice Chair – Bid Protest Committee
      • Jennifer Short: Vice Chair – Procurement Fraud & False Claims Committee
      • Dave Nadler: Vice Chair – Procurement Fraud & False Claims Committee
      • Robyn Burrows: Associate Editor – Procurement Lawyer

The ABA Section of Public Contract Law serves to provide balanced recommendations on procurement policy, provide a forum to engage with colleagues across all segments of the procurement industry, and gain insight into and develop unique perspectives of federal, state, and local public contract law. For more information, please visit the Section’s webpage.

GAO Report Suggests DOE Should Identify More Instances of Contractor Fraud

Luke W. Meier and Robyn N. Burrows

Last week, the Government Accountability Office (“GAO”) issued a report on Department of Energy (“DOE”) contracting, Improvements Needed to Ensure DOE Assesses Its Full Range of Contracting Fraud Risks. The thrust of the report is that DOE should do more to prevent and detect fraud, particularly in less-examined areas such as bid-rigging, misrepresentation of eligibility, kickbacks and gratuities, and conflicts of interest.

DOE relies on contractors to carry out its missions at laboratories and other facilities, spending approximately 80 percent of its $41 billion in total obligations on contracts. In March 2017, GAO reviewed DOE’s approach to managing its risk of fraud and found DOE did not use leading practices, resulting in missed opportunities to mitigate the likelihood and impact of fraud.

Continue reading “GAO Report Suggests DOE Should Identify More Instances of Contractor Fraud”

Majority of FY 2020 Protests Find Some Success at GAO

Luke W. Meier and Scott Arnold

The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2020 (GAO-21-281SP). The report shows that, in a unique year where COVID-19 altered procurement practices and priorities, protest activity at GAO was remarkably stable. Of note, GAO’s “effectiveness rate” this year topped 50 percent, meaning most protests resulted in some form of relief. The number of task order protests continues to increase, despite a modest dip in overall protests. Unsurprisingly, again there were very few hearings.

The chart below summarizes the GAO protest statistics from FY 2015 to FY 2020.

Here are four key takeaways from the latest report.

Continue reading “Majority of FY 2020 Protests Find Some Success at GAO”

What Qualifies as a “False” Claim? Supreme Court May Clarify

Luke W. Meier and Carolyn R. Cody-Jones

Until recently, it was well-accepted that a violation of the False Claims Act (“FCA”) occurs only when there is a misrepresentation that is objectively false. Four circuits—the Fourth, Seventh, Tenth and Eleventh—had adopted this “objective falsity” standard. In March 2020, however, the Third and Ninth Circuits issued decisions departing from this view, holding that objective falsity is not required and “legal falsity” can suffice. These decisions created a stark circuit split with profound implications for government contractors, and there is now a pending petition to the Supreme Court to address and clarify the matter.

First, a refresher: The FCA does not define “false or fraudulent,” leaving courts to look to common law to interpret what constitutes a “false” claim. Many circuits had found that a representation must be objectively false to qualify as a false claim, meaning that a false claim cannot arise where there is a genuine dispute and a claim is alleged to be false based on a subjective assessment. The Third Circuit was among those endorsing this view, holding that under the FCA “a statement is ‘false’ when it is objectively untrue,” United States ex rel. Thomas v. Siemens AG, 593 F. App’x 139, 143 (3d Cir. 2014), and that “expressions of opinion, scientific judgments or statements as to conclusions which reasonable minds may differ cannot be false.” United States ex rel. Hill v. Univ. of Med. & Dentistry of N.J., 448 F. App’x 314, 316 (3d Cir. 2011). Continue reading “What Qualifies as a “False” Claim? Supreme Court May Clarify”

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