Government Contracts Navigator

Blank Rome Welcomes New Government Contracts Associate in Washington, D.C.

Blank Rome LLP is pleased to announce that Amanda C. DeLaPerriere has joined the firm’s Washington, D.C., office in the Government Contracts group, which recently welcomed partner Elizabeth Jochum and associate Samarth Barot.

Amanda joins Blank Rome from Smith Pachter McWhorter PLC. She focuses her practice on government contracts law, related construction law, and white collar matters, including advising clients on regulatory, counseling, and litigation matters. Amanda also brings notable experience representing contractors in accounting, cost, and pricing matters.

Admitted to practice in Virginia, Amanda received her J.D. from The George Washington University Law School, and her B.A. from the University of Georgia. During law school, Amanda served as a law clerk at the U.S. Civilian Board of Contract Appeals and as a legal intern at the U.S. Department of Health & Human Services. Amanda also served as a notes editor at the Public Contracts Law Journal.

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.

Is Your Company Prepared for the New Cyber Incident Reporting Requirements?

Michael J. Montalbano

On March 11, 2022, President Biden signed into law the Cyber Incident Reporting for Critical Infrastructure Act of 2022. The Law includes new reporting requirements for companies who experience cyber incidents or make ransomware payments.

Under the Law, covered entities that experience covered cyber incidents must report the incident to the Cybersecurity and Infrastructure Security Agency (“CISA”) within 72 hours after the covered entity reasonably believes that a covered cyber incident has occurred. Covered entities must also notify CISA within 24 hours of making a ransomware payment.

The new cyber reporting law tasks CISA with creating more precise definitions for who constitutes a “covered entity” and what constitutes a “cyber incident.” Even the general language of the statute, however, provides some guidance for companies.

Blank Rome Government Contracts: 2021 Year-in-Review and Look Ahead for 2022

As 2022 shifts into high gear, Blank Rome’s Government Contracts practice is pleased to share our 2021 Year-in-Review, covering key government contracts issues, recent practice news and recognitions, and our look at the year ahead.

Thanks to the continued trust and support of our clients and colleagues and our dedication to our Client Service Principles, we helped guide our clients through an unprecedented past two years, and look forward to partnering with them (and seeing more of them in person!) in 2022. We were particularly excited to welcome Partner Elizabeth Jochum and Associate Samarth Barot to our team.

We look forward this year to deepening our collaboration across our law firm through a new Blank Rome industry group dedicated to serving clients in Aerospace, Defense & Government Services (“ADG”). Leveraging technology to drive seamless collaboration, our ADG team brings together professionals with in-depth knowledge of the industry from across the firm to stay at the forefront of emerging trends, including government relations, human capital, cybersecurity & data privacy, insurance recovery, export controls, government enforcement, and mergers & acquisitions.

We continued to share our perspectives on the industry last year in many forums, from COVID-19 vaccine mandates to developments in cybersecurity regulations to M&A trends. Click here for our thought leadership from the past year.

Finally, if you have not already, we invite you and your team to subscribe to our Government Contracts Navigator blog, where we cover issues of importance to our government contracting community. Unlike other blogs out there, we keep a strong focus on the practical, with our clients’ day-to-day business considerations in mind. Interested in the greatest hits? We have included below a list of the top 10 most read posts in 2021. You can also follow us on Twitter @GovConBR.

Thank you for reading. We look forward to helping you succeed this year and beyond.

Justin A. Chiarodo
Chair, Government Contracts
202.420.2706 | justin.chiarodo@blankrome.com

Please visit our website to read our entire Blank Rome Government Contracts: 2021 Year-in-Review and Look Ahead for 2022.

Get to Know Our Newest Partner, Elizabeth Jochum

Justin A. Chiarodo, Dominique L. Casimir, and Elizabeth N. Jochum

In late 2021, we were thrilled to welcome Elizabeth N. Jochum in our Washington, D.C., office as a partner in the Government Contracts practice. A skilled litigator and counselor with a significant background in white collar defense and investigations matters, Elizabeth joined Blank Rome from Smith Pachter McWhorter PLC, where she was a partner.

Elizabeth advocates for government contractors in bid protests before the U.S. Government Accountability Office and the U.S. Court of Federal Claims as well as handles appeals before the Armed Services and Civilian Boards of Contract Appeals and the U.S. Court of Appeals for the Federal Circuit. She also represents contractors in size protests, determinations, and appeals before the Small Business Administration. Elizabeth advises prime contractors and subcontractors on a range of matters, including regulatory compliance, contract negotiation, due diligence for mergers and acquisitions, and change and claim preparation.

Now that she has settled in at Blank Rome, we took a few minutes to chat with Elizabeth to find out more about her background, interests, and approach to client service. Here are the highlights, so that you can get to know her!

Welcome (again) to Blank Rome! We are so excited to have you on our team! What brought you to Blank Rome?

Thank you! I am so thrilled to be here, the transition has been incredibly smooth thanks to how welcoming the firm and group have been to my clients and me. I was drawn to Blank Rome because of the government contracts group’s incredible reputation. I have also had the opportunity to work with several members of the group on various matters and speaking engagements so had no doubt they were exactly the kind of smart, business-minded, and collegial people I hoped to work with. I also wanted to offer my clients a broader range of support outside of government contracts—particularly on labor & employment and corporate issues. Blank Rome has incredible capabilities in those areas as well.

Thomson Reuters 2022 Government Contracts Year-in-Review Conference: Mandatory Disclosure

Blank Rome Partner Stephanie M. Harden co-presented the “Mandatory Disclosure” session for Thomson Reuters’ 2022 Government Contracts Year-in-Review Conference, a series of virtual online programs available through the West LegalEdcenter online platform.

Stephanie was joined for her one-hour session by co-presenter Amy Conant Hoang, a partner at K&L Gates LLP.

Additional topics covered at this year’s conference include:

- - Converging Procurement Systems
  - International Public Procurement Law: Key Developments 2021
  - Export Controls, Economic Sanctions, Anti-Corruption and CFIUS: Compliance and National Security Concerns
  - Statutes & Regulations
  - Bidding & Negotiation
  - Cost & Pricing Issues
  - Performance Problems
  - Terminations
  - Bid Protest Overview
  - Disputes
  - Intellectual Property in Government Contracts
  - Emerging Policy & Practice Issues
  - Fraud, Debarment & Suspension
  - Cybersecurity for Government Contractors
  - Commercial Item Contracting
  - Accounting & Compliance
  - Labor & Employment

A copy of the full event agenda is available here.

Blank Rome LLP was pleased to once again serve as a sponsor for this leading industry event hosted by Thomson Reuters, which brings together hundreds of leading attorneys, executives, and government officials for high-level, expert briefings on the past year’s legal developments affecting government contracts. Each registrant received a PDF download copy of the conference briefs, which include a detailed outline and discussion of the topics addressed at the conference.

To learn more, please visit the Government Contracts Year-in-Review Conference event page.

Court of Federal Claims Declines to Adopt GAO’s Rule for Post-Proposal Key Personnel Changes

Elizabeth N. Jochum and Robyn N. Burrows

For years, the Government Accountability Office (“GAO”) has been moving towards an increasingly draconian position on offerors’ obligations to notify agencies when the availability of proposed personnel changes after proposal submission. A recent decision by the Court of Federal Claims (“COFC”) in Golden IT, LLC v. United States expressly addressing and departing from the GAO precedent may give hope to offerors struggling with GAO’s requirement.

Golden IT, LLC (“Golden”) protested the Department of Commerce’s award of a single blanket purchase agreement to Spatial Front, Inc. (“SFI”). Among its many protest grounds, Golden claimed that SFI’s quote contained a material misrepresentation regarding key personnel because it proposed an employee who had allegedly left SFI after it submitted its bid and before receiving award. Golden claimed that SFI was obligated to notify the agency of the individual’s unavailability after submitting its proposal.

New White House Guidance Details Infrastructure Spending Priorities

Brian S. Gocial

With the passage of the Infrastructure Investment and Jobs Act (“IIJA”), America is preparing for a flood of infrastructure spending not seen since the New Deal. Indeed, the IIJA allocates funding to over 350 distinct programs across more than a dozen federal departments and agencies. Attention now turns to the federal agencies, and state and local officials who are responsible for implementing these new programs. To that end, the Biden administration recently released A Guidebook to the Bipartisan Infrastructure Law for State, Local, Tribal, and Territorial Governments, and Other Partners to assist state, local, and tribal leaders to “know what to apply for, who to contact, and how to get ready to rebuild.”

Notably this is only the first version of this guidance and interested parties should continue to monitor the guidance in the coming weeks to stay up to date on the latest deadlines and details. In addition, the Biden administration released an accompanying data file on Build.gov that allows users to quickly sort programs funded under the law by fields like agency, amount, eligible recipient, or program name.

Blank Rome’s Justin A. Chiarodo and Jason E. Reisman Named BTI 2022 Client Service All-Stars

Blank Rome LLP is pleased to announce that Justin A. Chiarodo (left), partner and chair of the firm’s Government Contracts practice group, and Jason E. Reisman (right), partner and co-chair of the firm’s Labor & Employment practice group, have been named BTI 2022 Client Service All-Stars. In recognition of being named a BTI Client Service All-Star since 2020, Justin also received the honor of being recognized as an BTI All-Star MVP 2022.

This annual survey conducted by BTI Consulting Group is the “gold standard” used by corporate counsel and law firms alike to identify leading attorneys who “stand above all the others in delivering the absolutely best in client service.” The honorees hail from over 15 industry segments and are notably recognized for being practical, savvy, “in the know,” able to deal with complexity, available, and nimble, as defined by BTI’s definition of a Client Service All-Star. For more information, please visit BTI Client Service All-Stars.

To read Justin’s and Jason’s BTI profiles, as published in BTI’s 2022 Client Service All-Stars, please visit our website.

Beyond DOJ’s Blockbuster Year in FCA Recoveries, Whistleblower Activity and Investigations Continue

Elizabeth N. Jochum and Jennifer A. Short

The attention-grabbing headline from the Department of Justice’s (“DOJ”) annually released statistics on False Claims Act (“FCA”) settlements and judgments is that the government recovered more than $5.6 billion from FCA cases in fiscal year (“FY”) 2021. While this is the second largest annual recovery in FCA history and the largest since 2014, procurement fraud cases represented a substantially smaller percentage of the total recoveries than in years past. Healthcare resolutions dominated, accounting for more than five billion of the $5.6 billion in settlements and judgments. In previous years, healthcare matters have accounted for closer to two-thirds of the total recoveries, making last year’s outsized healthcare figure—driven by the blockbuster opioid settlements of late 2020[1]—an outlier.

Beyond the top-line dollar figures, the report shows that FCA activity continues at a healthy, if not fully robust, pace. The COVID-19 pandemic continues to impact qui tam filings; the number of new whistleblower suits dropped to 598 in FY 2021, a ten-year low. The number of DOJ-initiated matters remains higher than the near-term average, particularly in healthcare, but also in Department of Defense (“DOD”)-related cases. Contractors, healthcare providers, and others—especially those who received federal funding through pandemic aid programs—can anticipate that FCA investigations and resolutions will play out over the next several years.

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