Blank Rome LLP is pleased to announce that nine attorneys from the firm’s nationally recognized Government Contracts group have been appointed to leadership roles in the American Bar Association’s (“ABA”) Public Contract Law Section for the 2023–2024 term, marking the highest number of ABA Public Contract Law Section leadership positions held by our attorneys in the firm’s history.
Visit our website to learn more about their roles and the Section of Public Contract Law.
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Luke W. Meier and Carolyn R. Cody-Jones ●
Last Friday, June 16, 2023, the U.S. Supreme Court (“SCOTUS”) ruled that the federal government may seek to dismiss a qui tam False Claims Act (“FCA”) suit over the relator’s objection, even where it previously declined to intervene in the case and the relator invested in moving the case forward. The 8-1 decision by the high Court firmly established the broad authority for the government to intervene in such circumstances under a Rule 41(a) “reasonableness” standard, explaining that the key reason for this is that “the government’s interest in [an FCA] suit … is the predominant one” based on the “FCA’s government-centered purposes.” United States Ex Rel. Polansky v. Executive Health Resources, Inc., Slip. Op. No. 21–1052, at 12, 599 U.S. ____ (2023).
When an FCA suit is filed, the government has 60 days (which is typically extended) under the FCA statute to decide whether to decline or intervene in the case. See 31 U.S.C. § 3730. If declined, the relator may proceed with the litigation without the government’s support. The statute also allows the government to intervene “at a later date upon a showing of good cause.” § 3730(c)(3). As of 2022, publicly available statistics show that the government has elected to intervene only in about 40 percent of all qui tam FCA matters subject to judgment or settlement.
Continue reading “The Once and Future King: SCOTUS Maintains the Government May Intervene in Previously Declined FCA Matters to Seek Dismissal”Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Justin A. Chiarodo, Luke W. Meier, and Robyn N. Burrows ●
Building on recent and ongoing efforts to limit Chinese government access to government contractor supply chains, the FAR Councils published an interim rule effective June 2, 2023, that will broadly ban TikTok on contractor and contractor employee electronic devices used in the performance of federal contracts. The ban will be implemented through a new contract clause at FAR 52.204-27. Expect to see the clause added in all future solicitations (including commercially available off-the-shelf (“COTS”) acquisitions and micro-purchases) and added to existing contracts over the next month. We answer seven common questions on this new interim rule and offer several compliance tips.
What’s banned?
The new TikTok ban broadly prohibits contractors from having or using a “covered application” (e.g., TikTok or other successor applications by ByteDance Limited, a privately held company headquartered in Beijing, China) on any “information technology” used in the performance of a government contract. The ban applies regardless of whether the technology is owned by the government, the contractor, or the contractor’s employees. Bottom line, the rule has a (very) broad reach—it applies to contracts below the micro-purchase threshold, contracts for commercial products and services, and COTS items.
Continue reading “And No Longer Trending: 7 FAQs Regarding the Federal Contractor TikTok Ban”Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Luke W. Meier and Elizabeth N. Jochum ●
The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2022 (GAO-23-900462). The report mostly shows a continuation of recent trends: the overall number of GAO protests continues to drop, “effectiveness” remains high and stable (51 percent), and there are very few hearings (two for the year). Of note, preaward solicitation challenges were one of the most successful types of protest at GAO, for the first time ever since GAO began reporting the bases for successful protests in 2013. Below we break down what contractors can glean from this latest report.
Overall numbers down
The total number of protests filed at GAO continues to fall. The chart below shows the number of protest actions reported by GAO over the last several years.
Continue reading “FY 2022 Sees Number of Protests Fall, Solicitation Challenges Join the List of Most Likely Protest Grounds to Be Sustained“Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
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 reading “Proposed Rule for PLA Will Substantially Shift Federal Construction Landscape“Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Elizabeth N. Jochum and Luke Meier ●
Selex EX, Inc.
B-420799
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”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
“Next Generation Partners”: The Legal 500’s Guide to Up-and-Coming Lawyers Nationwide
Recommended Attorneys
Key Lawyers
To view all of Blank Rome’s Legal 500 United States 2022 rankings, please visit our website.
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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”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.
