Buy American and hire American. The concept is easy, but the implementation can be far more complicated, particularly in the current government contracting world where waivers to those requirements have become common. In an attempt to strengthen the commitment to buying American and hiring American, on January 26, 2018, a bipartisan group of ten Senators sent a letter to President Trump urging him to “keep the promises” that he had made in April 2017 to buy American and hire American. The letter follows Senators Rob Portman (R-OH), Sherrod Brown (D-OH), Lindsey Graham (R-SC), and Chris Murphy’s (D-CT) introduction of the bipartisan BuyAmerican.gov Act of 2018 on January 9, 2018. This new legislation seems to be an effort to codify President Trump’s April 18, 2017, Buy American and Hire American Executive Order (the Executive Order), and slow what the BuyAmerican.gov Act Press Release calls the “excessive number of waivers” to the Buy American laws. Since President Trump signed the Executive Order, much has been written about the potential effects of that Executive Order. However, the potential impacts on government contractors who maintain or store data relating to their performance of federal government contracts have been largely disregarded. Continue reading “Buy American, Hire American: Will It Impact a Government Contractor’s Ability to Store Data Offshore?”
On April 13, 2017, President Trump’s federal hiring freeze will be lifted—at least in part. The hiring freeze was instituted by a presidential memorandum signed on January 23, 2017, and prevents federal agencies from filling vacant federal government positions that existed at that time, or creating new positions. President Trump included certain exceptions, including military personnel and other positions deemed “necessary to meet national security or public safety responsibilities.” The memorandum requests that agencies use existing personnel efficiently and does not prohibit reallocation of resources for the highest priority concerns. Continue reading “Hiring Freeze Thaws: How New Administration Policies May Impact Contract Administration”
On December 1, 2016, the Federal Rules of Civil Procedure (the “Rules”) were amended to make the “three-day rule” inapplicable to electronic filers and litigants who agree to receive filings electronically. The “three-day rule” provided an additional three days to respond if a filing was not served personally, i.e., if it is mailed or electronically filed. Although we do not normally alert our contacts to these types of procedural changes, this one could have significant impacts on federal government contractors, particularly those who are involved in lawsuits in the Eastern District of Virginia’s “Rocket Docket.” Continue reading “Litigants Lose Extra Three Days to Respond under the Federal Rules of Civil Procedure When Filing Electronically”
Almost daily, clients call our office seeking to protest the award of a federal government contract. Unfortunately, sometimes these calls are too late. While contracts can be protested at the agency level, the Court of Federal Claims, and the Government Accountability Office (“GAO”), GAO protests are the most common. The deadlines by which a protester must take certain actions to file a timely protest are confusing. Below we address some of the trickier and/or mandatory deadlines a potential protester must meet to file a timely protest, and we provide a useful sample timeline for protesters to follow during this critical process. Continue reading “Critical GAO Bid Protest Deadlines and Timeline”
On June 15, 2016, the Department of Labor (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”) issued a final rule updating its 1970 sex discrimination guidelines. The final rule, available here, enforces Executive Order 11246, which prohibits federal contractors and subcontractors from employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin. The rule applies to companies that have federal government contracts of $10,000 or more and will be effective on August 15, 2016. Continue reading “Department of Labor Issues Final Rule Updating Sex Discrimination Guidelines”
On June 16, 2016, the Supreme Court issued a decision in Kingdomware Technologies, Inc. v. United States, available here, holding that the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the “Veterans Act of 2006”) requires the Department of Veterans Affairs (“VA”) to conduct a “Rule of Two” analysis before a contract award. The unanimous decision, authored by Justice Clarence Thomas, holds that the Veterans Act of 2006 “unambiguously requires” the VA to use the Rule of Two before awarding a contract under competitive procedures even when the VA will otherwise meet its annual minimum small business contracting goals.
Kingdomware Technologies, Inc. is a veteran-owned small business (“VOSB”) that filed suit after unsuccessfully bidding for a VA emergency-notification services contract that was eventually awarded to a non-VOSB via the Federal Supply Schedule (“FSS”). In its protest to the Government Accountability Office, and subsequent suits in the Federal Circuit, Kingdomware argued that the VA violated the Veterans Act of 2006 by failing to award the contract to a VOSB because it did not award the contract based on the mandatory Rule of Two provision. The Rule of Two states that the VA “shall award” contracts to VOSBs when there is a “reasonable expectation” that two VOSBs will submit bids “at a fair and reasonable price that offers the best value to the United States.” Continue reading “Supreme Court Affirms Small Business Preference Requirement in Veterans Affairs Contracts in Kingdomware Technologies, Inc. v. United States“
On June 14, 2016, the Senate passed the National Defense Authorization Act (“NDAA”) for Fiscal Year 2017, S. 2943, by a vote of 85-13. The final bill grants to the military a $602 billion budget, and includes what Senator Harry Reid has called “several needed reforms,” which include bid protest reforms. The bill, drafted by the Senate Armed Services Committee (“SASC”), includes language that would amend statutes related to bid protests at the Government Accountability Office (“GAO”) to require a “loser pays” scheme and the withholding of profits on bridge contracts. President Obama has threatened to veto the NDAA when it crosses his desk due to provisions unrelated to the proposed bid protest reforms.
The House of Representatives passed its version of the NDAA on May 18, 2016, by a vote of 277-147. The House bill, H.R. 4909, does not include similar bid protest-related provisions to those in the Senate bill, and only requires that the Secretary of Defense enter into a contract with an “independent entity with appropriate expertise to conduct a review of the bid protest process related to major defense authorization programs.” The “independent entity” would be required to submit interim findings on bid protest trends by March 1, 2017, and a final report of findings by July 1, 2017. Continue reading “Senate Seeks to Disincentivize Certain Protesters in 2017 National Defense Authorization Act”