Category: Scott Arnold

Other Transactions: A Flexible and Efficient Acquisition Tool for the Department of Defense

Scott Arnold and Samarth Barot ●

On March 6, 2025, the Defense Secretary released a memorandum directing the Department of Defense (“DoD”) to adopt the Software Acquisition Pathway (“SWP”) to speed up the development, procurement, and delivery of software needed for weapons and business systems. Specifically, the memorandum directed DoD to use Commercial Solutions Openings and Other Transactions (“OTs”) as the default solicitation and award approaches for acquiring capabilities under the SWP. As a result, we are likely to see an expansion in DoD’s use of OTs. Thus, contractors should be aware of the rules and regulations regarding OTs.

Background

While OTs have been in the news a lot these days, they are not a new concept. OTs date back to 1958, when Congress granted the National Aeronautics and Space Administration (“NASA”) the authority to enter into transactions other than contracts, grants, or cooperative agreements in order to foster innovation and speed in the space race.

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Open the Floodgates: Divided Federal Circuit Panel Expands Access to Court of Federal Claims

Shane M. Hannon and Scott Arnold ●

The Federal Circuit last Friday issued a decision that is, as the dissent put it, “a very important government contract case.” In Percipient.ai v. United States, the Federal Circuit adopted a narrow construction of the FASA task order bar, which prohibits the Court of Federal Claims (“COFC”) from hearing a protest challenging the issuance of a task order. At the same time, the Federal Circuit held that under certain circumstances—such as in this case—potential subcontractors can challenge an agency’s violation of procurement law at the COFC.

The Federal Circuit effectively kicked down the drawbridge to the COFC. It increased the variety of cases the COFC can hear and the classes of government contractors—particularly subcontractors—that can bring those cases. Percipient.ai will have significant ramifications on the government contracting community.

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The SBA’s 8(a) Program—Possible Changes after SFFA and Ultima

Scott Arnold ●

When the U.S. Supreme Court struck down affirmative action programs in the college admissions context in late June, it noted that racially conscious government programs must have a “logical end point.” Students for Fair Admissions, Inc. v. Harvard and Students for Fair Admissions v. University of North Carolina (“SFFA”). It has been apparent for some time that the “logical end point” concept could have implications for racially conscious programs in the government contracts context, and indeed it took only three weeks after SFFA for this to manifest in a decision issued by U.S. District Court for the Eastern District of Tennessee, Ultima Servs. Corp. v. U.S. Department of Agriculture. In Ultima, the court relied on reasoning in SFFA to conclude that regulations in the Small Business Administration’s (“SBA”) 8(a) program that establish a rebuttable presumption of social disadvantage to individuals in certain minority groups violate the Fifth Amendment’s Equal Protection rights of individuals who are not members of those minority groups.

SBA’s 8(a) Program

The Small Business Act has been in place for 70 years. Section 8(a) of the Act authorizes the SBA to facilitate increased government contracting opportunities for socially and economically disadvantaged small businesses by working with procurement agencies to set aside certain procurements for 8(a) contractors—contractors who have been accepted into the 8(a) program by virtue of being socially and economically disadvantaged. Contractors who are not in the 8(a) program are ineligible to compete for 8(a) set-aside contracts (although they can participate in such procurements as subcontractors).

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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.

Buy American Act—Final Rule: What Has Changed?

Scott Arnold and Ustina M. Ibrahim*

On March 7, 2022, the FAR Council published the final rule containing changes to Buy American Act (“BAA”) domestic preference requirements.

This final rule is a significant step towards implementation of a policy to enhance domestic preferences announced by President Biden in E.O. 14005 just a few days after taking office. You may recall that the FAR Council previously issued a proposed rule that contemplated (1) phased increases in domestic content thresholds, (2) enhanced preferences for critical products and components, and (3) post-award reporting requirements for critical products and components. See our prior posts addressing President Biden’s E.O. 14005 and the proposed rule.

The final rule retained most of what the FAR Council initially proposed, but there are a few changes that we discuss below. We also point out some aspects of the new policy that remain to be fleshed out in future rulemaking.

Increased Domestic Content Thresholds

The proposed rule contemplated increasing the current domestic content threshold from 55 percent to 60 percent, with subsequent increases to 65 percent and 75 percent beginning in calendar years 2024 and 2029, respectively. The final rule retains these increases but allows for a longer period than typically provided before the first increase to 60 percent becomes effective. The 60 percent threshold will take effect October 25, 2022—over six months after publication, rather than the customary 30 or 60 days after publication. Thus, contractors and agencies have several more months to plan for the new threshold.

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Government Contractor FAQ: What’s up with the Vaccine Mandates?

Scott Arnold, Justin A. Chiarodo, Stephanie M. Harden, and Samarth Barot

Lawsuits challenging the Biden Administration’s many vaccine mandates have changed the compliance landscape over the last few months. This post summarizes the current status of the four major mandates:

      1. Occupational Safety and Health Administration (“OSHA”) mandate;
      2. Healthcare Worker mandate;
      3. Federal Employee mandate; and
      4. Federal Contractor mandate.

Spoiler alert: The Federal Contractor mandate–which has caused the most significant confusion for Government contractors since its issuance–still does.

1. OSHA Mandate

OSHA’s Emergency Temporary Standard (“ETS”) required that all employees of employers with 100 or more employees either be fully vaccinated or wear a mask and submit to weekly COVID‑19 testing. On January 13, 2022, the Supreme Court upheld a preliminary injunction of the OSHA mandate, finding that it likely exceeded OSHA’s authority.

Status: Withdrawn (OSHA announced that it was withdrawing the ETS on January 26, 2022).

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Government Contractor Q&A: Impact of Nationwide Injunction Prohibiting Enforcement of Federal Contractor Vaccine Mandate

Scott Arnold, Justin A. Chiarodo, and Stephanie M. Harden


Yesterday the U.S. District Court for the Southern District of Georgia issued a preliminary injunction against enforcement of Executive Order (“EO”) 14042, under which prime contractors and subcontractors are required to ensure that all of their employees working “on or in connection with” covered federal contracts are fully vaccinated against COVID-19 (“Vaccine Mandate”). The order was issued in a lawsuit filed by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; governors of several of those states; and various state agencies that challenged the Biden Administration’s authority to issue the Vaccine Mandate. In its decision, State of Georgia, et. al. v. Biden, No. 1:21-cv-163, the court agreed with the plaintiffs’ argument that the Administration improperly relied on the Federal Property and Administrative Services Act (“FPASA”) to issue the Vaccine Mandate, concluding that the FPASA’s authorization for the President to impose policies to promote economy and efficiency in procurement did not extend to polices focused primarily on public health.

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Buy American Act Domestic Content Requirements Likely to Increase Soon

Scott Arnold, Justin A. Chiarodo, and Robyn N. Burrows







As directed in President Biden’s January 25, 2021, Executive Order we discussed six months ago, last week the FAR Council proposed increases to the Buy American Act (“BAA”) domestic content requirements, and previewed enhanced price preferences and reporting obligations for “critical” domestic products and components under the BAA.

The proposed rule, issued on July 30, 2021, contains three key elements: (1) Phased increases in domestic content thresholds from the current 55% to 75% by 2029, (2) enhanced price preferences for critical products and components, and (3) post-award reporting requirements for critical products and components.

A virtual public meeting to discuss the proposed rule will be held on August 26, 2021, and comments are due by September 28, 2021. The DAR Council also has an open DFARS Case relating to BAA provisions (2019-D045).

We provide an overview of the rule below along with practical takeaways for contractors to consider in light of these potentially significant changes.

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Executive Order Increases the Minimum Wage for Federal Contractors—What Is the Impact?

Scott Arnold

Legal developments aimed at government contractors do not always make headline news in mainstream media, but last week’s Executive Order on Increasing the Minimum Wage for Federal Contractors, April 27, 2021 (“Executive Order”), did get widespread attention, perhaps because it is viewed by some in political circles as the next best thing for an administration that sees substantial congressional hurdles for more broadly applicable minimum wage increase legislation. So you have probably heard about about the Executive Order, but how will it impact government contractors?

What does the Executive Order do?

The Executive Order will increase the hourly minimum wage for workers working on or in connection with federal government contracts to $15.00, effective January 30, 2022. This will be a substantial increase from the current minimum wage of $10.95 applicable to most federal contracts pursuant Executive Order 13658. (EO 13658 originally set a federal contractor minimum wage of $10.10, effective January 1, 2015, when it was issued by President Obama in early 2014. That minimum wage has since increased annually.)

How will the increase be implemented?

The Secretary of Labor is to issue implementing regulations by November 24, 2021, and the Federal Acquisition Regulatory Council is to amend the FAR to provide the new minimum wage provisions in federal procurement solicitations, contracts, and contract-like instruments within 60 days after issuance of the Labor Department’s implementing regulations.

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Buy American Act – More Big Changes Ahead

Scott Arnold

“Buy American” is one of few policy areas where the Biden and Trump administrations appear to generally agree. The Trump administration expressed support for strengthening regulatory implementation of the Buy American Act (“BAA”), and, in Executive Order 13881 (July 15, 2019), directed the Federal Acquisition Regulatory Council (“FAR Council”) to consider proposed regulations to increase and create new domestic content thresholds required for a product to qualify for domestic preference treatment. We wrote four months ago about the FAR Council’s proposed regulations to do just that, and to increase the price evaluation credit given to domestic products subject to the BAA. (See Proposed Rule Portends Increased Contractor BAA Obligations.) On January 19, 2021, the FAR Council published its final rule, largely adopting the proposed version.

Ironically, these changes were issued on the last full day of the Trump administration and went into effect January 21, 2021—the first full day of the Biden administration. And while there is no indication that the Biden administration believes the new BAA thresholds were bad ideas, President Biden wasted no time signaling his desire for further strengthening of the BAA as well as domestic content requirements in federal procurement and grant programs generally. President Biden’s Executive Order on Ensuring the Future Is Made in All of American by All of America’s Workers (“EO”) issued on January 25, 2021, makes this clear. Continue reading “Buy American Act – More Big Changes Ahead”

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