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ABA Section of Public Contract Law’s Roundtable on Impact of New Administration on Government Contracting

February 26, 2025
2:00–4:00 p.m.
McLean, Virginia

Blank Rome partner Jennifer Short will serve as a panelist at the American Bar Association (“ABA”) Section of Public Contract Law’s “Roundtable on Impact of New Administration on Government Contracting,” taking place in McLean, Virginia, on Wednesday, February 26, 2025, from 2:00 to 4:00 p.m., with a light reception to follow. A virtual participation option will be available.

ABOUT THE PROGRAM

The panel will discuss the impact of the new administration on government contracting, including the President’s Executive Orders regarding DEI and how to respond to them; stop works, terminations, and other contract actions and what contractors can be doing in light of them; and the legal issues surrounding a decision by the Executive Office not to spend appropriated funds.

Panelists:

Facilitator: Jeff Chiow, Greenberg Traurig LLP
Jayna Marie Rust, Thompson Coburn LLP
Jennifer Short, Blank Rome LLP

For more information, please visit the registration page.

Preliminary Injunction Granted Related to DEI-Related Executive Orders—Takeaways for Government Contractors

Dominique L. Casimir ●

In the four weeks since President Trump issued Executive Order (“EO”) 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), virtually all sectors of American society have been scrambling to understand their compliance obligations and seeking to reduce legal risk. Businesses have taken a range of approaches, from preparing to defend their diversity, equity, and inclusion (“DEI”) commitments to removing public-facing references to DEI. Some government contractors have received DEI-related certifications required by EO 14173, which implicate enforcement under the False Claims Act (“FCA”).

In a significant new development, on February 21, 2025, the United States District Court for the District of Maryland issued a nationwide preliminary injunction against both EO 14151 and EO 14173. Here’s what federal contractors need to know.

What CMMC Level Do I Need? The Department of Defense Issues New Guidance for Determining Appropriate CMMC Compliance Level

Michael Joseph Montalbano ●

The Department of Defense (“DOD”) recently issued new guidance outlining how it will determine Cybersecurity Maturity Model Certification (“CMMC”) levels for its solicitations and contracts. Prior to this guidance, contractors generally understood that contracts with only Federal Contract Information (“FCI”) would require a CMMC Level 1 self-assessment; contracts with Controlled Unclassified Information (“CUI”) would require either a CMMC Level 2 self-assessment or a CMMC Level 2 certification; and DOD contracts “supporting its most critical programs and technologies” would require a CMMC Level 3 certification. DOD’s new guidance provides additional information contractors can use to help them determine which CMMC Level they should achieve.

Webinar: Navigating the Impact of President Trump’s Executive Orders on DEI Initiatives

Blank Rome-Hosted Live Webinar
February 19, 2025
1:00–2:00 p.m. EST | 10:00–11:00 a.m. PST

Within days of the new administration taking office, there have been tectonic shifts in the employment law and government contracts landscape affecting all employers, large and small, across every industry and every sector of the economy.

The Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” has implications for any company that has adopted a formal diversity, equity, and inclusion (“DEI”) policy and puts companies on notice that the new administration considers DEI policies and programs to be “illegal” if they have the effect of reverse discrimination under federal anti-discrimination laws. The Executive Order requires the heads of all federal agencies to submit a plan outlining specific measures to deter illegal discrimination or preferences. Additionally, each agency must identify up to nine major corporations or institutions for compliance investigations on DEI violations and the Attorney General has been tasked with developing strategies to deter “illegal discrimination and preferences, including DEI,” in the broader private sector. This plan will be presented in 120 days.

The Executive Order also has drastic implications for federal contractors. It revokes Executive Order 11246, which for 60 years has required federal contractors adopt affirmative action plans. The Executive Order gives federal contractors until April 21, 2025, to end their compliance with Executive Order 11246. All federal contractors will now be expected to certify that they “do not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” in all contracts with federal agencies.

In addition to this Executive Order, other directives on gender and DEI efforts and civil and criminal enforcement across the private and public sector carry both direct and indirect implications for companies. This landscape is evolving rapidly, influenced by guidance from new agency heads—including the Department of Justice—as well as emerging state-level pressures. Special guest speaker Lisa R. Davis, Senior Managing Director and Co-Lead, DEI Advisory at Teneo, will join Dominique, Anthony, and Brooke to explore the intricate implications of these Executive Orders and offer actionable insights for navigating and communicating changes effectively.

Blank Rome partners Dominique L. Casimir, Anthony B. Haller, and Brooke T. Iley, along with Lisa R. Davis, Senior Managing Director and Co-Lead, DEI Advisory at global CEO consulting and advisory firm Teneo, will serve as speakers for the 60-minute, Blank Rome-hosted live webinar, “Navigating the Impact of President Trump’s Executive Orders on DEI Initiatives,” taking place on Wednesday, February 19, 2025, from 1:00 to 2:00 p.m. EST / 10:00 to 11:00 a.m. PST.

For more information and to register, please visit our website: Navigating the Impact of President Trump’s Executive Orders on DEI Initiatives.

60-Second Sustains: The Mission Essential Group

Elizabeth N. Jochum and David L. Bodner ●

The Mission Essential Group
B-422698.2

Mission Essential challenged a task order solicitation issued by the Air Force, alleging the lowest price, technically acceptable (“LPTA”) evaluation scheme violated DFARS 215.101-2-70.
The DFARS provision establishes eight criteria, each of which must be met in order for a solicitation to employ an LPTA methodology.
It also requires that agencies “avoid, to the maximum extent practicable,” the use of LPTA procedures for procurements of “knowledge-based professional services.”
Mission Essential alleged the Air Force failed to meet at least three of the eight criteria allowing for LPTA and that LPTA procedures must be avoided given the type of services sought.
GAO sustained the protest, recommending the Air Force revise the solicitation to comply with DFARS 215.101-2-70 and request revised proposals.

GAO Rejects Notion of a Pre-FPR “Continuous Registration Requirement” for SAM

Luke W. Meier and Amanda C. DeLaPerriere ●

The last week saw GAO sustain two protests that should put the nail in the SAM “continuous registration” coffin.

The Federal Acquisition Regulatory (“FAR”) Council recently revised the standard System for Award Management (“SAM”) registration clause (FAR 52.204-7) to make clear there is no “continuous registration requirement”—contractors need to be registered in SAM only at the time they submit their final, legally-binding proposal.

In two recent decisions, GAO has confirmed that the same was (and is) true under the prior version of FAR 52.204-7 as well. That is, if an agency allows an offeror to submit a revised proposal, and the offeror is properly registered in SAM when that final proposal is submitted, it does not matter if there was some SAM registration failure at an earlier stage of the procurement. The offeror is eligible, and it would be unreasonable for an agency to eliminate an offeror or terminate an award based on a pre-FPR SAM flaw.

In UNICA-BPA JV, LLC, B-422580.3, the protester (“UNICA”) had an active SAM registration when it submitted its final revised proposal, but the Agency later eliminated UNICA from the competition based on the fact that UNICA was not registered in SAM at the time of its initial proposal. That was unreasonable, GAO found, because UNICA had in fact met the stated requirement to be registered in SAM “when submitting an offer,” as the FAR defines “offer” as a proposal that can form a binding contract, and that definition applied only to UNICA’s final, legally-binding proposal, which was compliant. GAO thus found the Agency acted unreasonably by eliminating UNICA from the competition and sustained UNICA’s protest.

In Metris LLC, B-422996.2, the Agency proposed to take corrective action to terminate the award to Metris for having a break in its SAM registration between the time of the initial proposal submission and its final proposal submission. GAO found that Metris’s initial proposal was extinguished when Metris submitted – and the Agency accepted – Metris’s final proposal revision. Because Metris was registered in SAM at the time of the final proposal revision, Metris had an active SAM registration when it submitted its offer, in accordance with FAR 52.204-7. GAO thus recommended that the agency abandon its plans to terminate Metris’s contract award, and instead “maintain its existing award to Metris.”

These cases follow the legal reasoning of Hanford Tank Disposition Alliance, LLC v. United States, 173 Fed. Cl. 269, 312-319 (2024), and should deter agencies from eliminating any more offerors over pre-FPR SAM issues.

Also published in National Law Review at GAO Confirms No Continuous SAM Registration Requirement, January 17, 2025.

The FAR Council Publishes Long-Awaited CUI Rule

Michael Joseph Montalbano ●

On January 15, 2025, the Federal Acquisition Regulation (“FAR”) Council issued its long-awaited “CUI Rule.” CUI, or Controlled Unclassified Information, is information that the government creates or possesses, or that an entity creates or possesses for or on behalf of the government, that a law, regulation, or governmentwide policy requires or permits an agency to handle using safeguarding or dissemination controls. For nearly 15 years, contractors have struggled to determine what information meets this definition. The CUI rule is an opportunity for the federal government to finally provide contractors with the guidance needed to better identify and safeguard the CUI they receive in connection with their federal contracts.

Three Major Features of the New Final Rule on Suspension and Debarment

Dominique L. Casimir ●

Introduction

On January 3, 2025, the Federal Acquisition Regulatory Council (“FAR Council”) published a long-awaited final rule to update suspension and debarment procedures. 90 Fed. Reg. 507. The final rule takes effect January 17, 2025.

As a refresher, suspension and debarment are non-punitive administrative actions by which the federal government excludes non-responsible contractors from eligibility to receive new government contracts and other federal awards. Suspension is a temporary measure, often imposed pending the outcome of an investigation or legal proceedings, when immediate exclusion is necessary to protect the government’s interests. Debarment is a longer-term exclusion, typically lasting up to three years, imposed when, after due process, the Suspending and Debarring Official (“SDO”) finds the contractor non-responsible. Both actions aim to ensure that the government only engages with responsible and reliable contractors.

Suspension and debarment procedures are codified in two distinct regulatory regimes: the Federal Acquisition Regulation (“FAR”), codified in 48 CFR, applies to procurement transactions, which involve the federal government’s acquisition of goods and services; and the Nonprocurement Common Rule (“NCR”), found in 2 CFR part 180, which applies to transactions such as grants, cooperative agreements, and other forms of federal assistance. While both regulatory frameworks aim to protect the government’s interests by excluding unreliable contractors, they differ in their specific procedures and immediate effects.

Fiscal Year 2024 GAO Protest Statistics: Course Correction from Fiscal Year 2023 Shows Continued Slow Decline in GAO Protests

Luke W. Meier and Shane M. Hannon ●

The Government Accountability Office (“GAO”) released its Annual Report to Congress for Fiscal Year 2024 (B-158766), summarizing bid protest activity during the 2024 fiscal year. The FY24 bid protest statistics reflect a continuation of recent trends, and course correction after the FY23 statistics were skewed by the 100+ protests challenging the Department of Health and Human Services’ government-wide acquisition contract, the Chief Information Officer-Solutions and Partners 4 (“CIO-SP4”).

Overall, the number of protests is fairly steady, the effectiveness rate remains high (over 50 percent), and hearings are increasingly rare (just one in the last year).

Department of Defense Issues Final CMMC Rule

Michael Joseph Montalbano ●

On October 11, 2024, the Department of Defense (“DoD”) issued the first part of its final rule establishing the Cybersecurity Maturity Model Certification (“CMMC”) program. As expected, the final rule requires companies entrusted with national security information to implement cybersecurity standards at progressively advanced levels, (CMMC level 1, CMMC level 2, and CMMC level 3) depending on the type and sensitivity of the information. While the final rule largely tracks the proposed rule issued in December 2023, we outline below several notable updates DoD included in the final rule and their potential impacts on DoD contractors.

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