Government Contracts
Accommodating Field Directions While Maintaining Good Client Relations and Guarding Against Unintended Liabilities
During construction, the parties’ focus is often on maintaining a good working relationship. That is a valuable goal, however, it can sometimes result in parties avoiding technical requirements in their contracts, including for such things as field directions. The parties understandably want to keep the project on track, often accommodating modifications to the work agreed upon in the field; however, doing so contrary to contractual ...
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COVID-19: Fatigue Remains, But Ignore the Global Situation at Your Peril
The COVID-19 pandemic’s duration is approaching the two-year mark, leading to significant “COVID Fatigue” for everyone. However, the recent spike in confirmed cases makes ignoring the potential impact globally on business owners’ critical. According to the World Health Organization, confirmed cases rose by nearly 10 million in recent weeks; far higher than at any other time during 2021, with most of those confirmed cases being, in order of magnitude, the Americas, Europe, and South-East Asia. Shifts in ...
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New Certification Requirement for Federal Contractors
Beginning this year, federal supply and service contractors and subcontractors will be required to certify that they have developed and maintained an affirmative action program (AAP) for each establishment. Previously, while most federal contractors have been required to have an AAP, they did not have to show that they met this requirement unless the Office of Federal Contract Compliance Program (OFCCP) specifically asked them to ...
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GAO Sustains Protest for Awardee’s Organizational Conflicts of Interest
In its recent decision in the Matter of: Steel Point Solutions, LLC, the GAO considered the concept of Organizational Conflicts of Interest (OCI). OCIs usually fall into one of three categories: “biased ground rules,” “impaired objectivity,” and “unequal access to information.” In this case, the GAO sustained a protest because the Agency failed to adequately consider the extent of potential impaired objectivity OCIs on the ...
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Government Contracting: DUNS Number, SAM Registration, and CAGE Code
For prospective government contractors, the first step in this venture is to ensure your business is properly registered. Registration requirements include obtaining a Data Universal Number System (DUNS) number, registration in the System for Award Management (SAM), and obtaining a Commercial and Government Entity (CAGE) code for each unique facility location. Simply put, all three are databases or identifiers that monitor and/or classify businesses based ...
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Resolved, yet Unclear: Supreme Court Tightens CERCLA Contribution Claim Requirements
Joseph Romero Appellate Practice, Environmental, Environmental Law Monitor, Government Contracts, Litigation
In a unanimous decision, the Supreme Court ruled that a party’s right to contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) after entering into a settlement arises only when the settlement agreement resolves CERCLA-specific liabilities. This decision may call into question the effect of existing settlement agreements, the viability of ongoing contribution cases, and may revive the ability of some parties ...
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Heat-Related Illness Prevention: Training and Supervision
In the previous article, we highlighted tips for creating a heat-related illness prevention plan (HRIPP) and discussed the importance of considering total heat stress and personal risk factors. In this article, we will focus on the importance of adequate training and day-to-day supervision in preventing heat-related illness in the workplace. Training is one tool that, when used effectively, can have a significant impact on reducing/preventing ...
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Heat-Related Illness Prevention: Creating an Effective Plan
In the last article, we discussed federal standards related to heat-related illness. As it warms up this summer, now is a perfect time to update or create a heat-related illness prevention plan (HRIPP) for your business. In this article, we will highlight the benefits of creating an effective HRIPP as well as helpful tips for creating your plan. Creating a HRIPP has many benefits. First, ...
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Heat-Related Illness Prevention: Introduction to Federal and State Standards
Heat-related illness can affect various industries and work environments. As temperatures rise this summer, it is important for businesses to have a plan to address heat-related illness to protect both the employer and its employees from avoidable harm. This article is the first in a three-part series and will highlight sources of federal and state standards related to heat-related illness. This three-part series is an ...
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Governor’s Office Issues New Mask Policy
Vandeventer Black Corporate & Business, COVID-19 Task Force, Government Contracts, Labor & Employment
Last month, Governor Northam made news when he announced that the Virginia mask mandate had been lifted for fully vaccinated people, but the devil is in the details. On May 14, 2021, the Governor’s office set forth its updated policy by issuing Executive Order (“EO”) 79 replacing EO 72, effective May 28, 2021. This EO updates mask guidance to align with Center for Disease Control ...
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GAO Sustains Protest for Agency’s Violation of SBA’s Mentor-Protégé Regulations
In the recent matter of Innovate Now, LLC, the Government Accountability Office (“GAO”) sustained a protest on the grounds that the Agency’s solicitation required that both parties in a mentor-protégé joint venture (“MP-JV”) meet the same experience thresholds, despite Small Business Administration (“SBA”) regulations to the contrary. As background, the MP program allows a small business, or protégé, to partner with another business, large or ...
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GAO Sustains Protest for Agency’s Improper Cost Adjustment
The Government Accountability Office (“GAO”) recently sustained a protest in the matter of Vectrus Mission Solutions Corporation; Vanquish Worldwide, LLC where an agency improperly adjusted an offeror’s proposal price upward when the offeror expressly had agreed to absorb any costs above a cap in its proposal. The GAO’s decision provides insight into cost realism evaluations such as when they should be undertaken and when they ...
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In Split Decision, Federal Circuit Affirms Agency Exclusion of Proposals
In U.S. Government procurements, most solicitations specify that noncompliance with its terms and conditions may cause a proposal to be determined unacceptable or be deemed non-responsive and excluded from consideration. However, in some cases, the agency may alter the terms and conditions through pre-award discussions. In Safeguard Base Operations v. United States, the Federal Circuit considered the latitude an agency has to make such alterations ...
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GAO Sustains Protest Due to Unreasonable Agency Evaluation
The Government Accountability Office (“GAO”) recently sustained a protest in the matter of TekSynap Corporation for the agency’s failure to reasonably evaluate proposals. While the decision is not a novel area of law, it does provide contractors insight into what facts can be sufficient for the GAO to find that an agency conducted an unreasonable evaluation. The GAO has repeatedly stated that its role is ...
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In Uninteresting Result, Federal Circuit Leaves Offeror Standing Outside the Courtroom
In order to bring an action in any United States tribunal, a party must have “standing.” “The doctrine [of standing] limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish constitutional standing a “plaintiff must have (1) suffered an injury in fact, (2) ...
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Federal Circuit Holds CICA Stay Clock Begins at Time of Debriefing When Disappointed Offeror does not Avail Itself of Right to Ask Additional Questions
No questions, no stay. The United States Court of Appeals for the Federal Circuit recently ruled on the interplay of debriefings and automatic stays.[1] In NIKA Technologies v. United States, the Federal Circuit reversed a Court of Federal Claims (“COFC”) decision requiring an automatic stay of contract performance pursuant to the Competition in Contract Act (“CICA”) that had been previously denied by the Government Accountability ...
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Don’t be a victim of an ADA drive-by!
This past year marked the 30th Anniversary of the Americans with Disabilities Act (ADA). The Act was signed into law on July 26, 1990. The Act is a civil rights law that promotes the inclusion of people with disabilities in every aspect of life, including existing buildings and facilities. Under Title III, the Act defines “Public Accommodations” as a private entity that owns, leases, or ...
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Federal Circuit Adopts Narrow Definition of “Printing” to Avoid Constitutional Separation of Powers Question
The U.S. Court of Appeals for the Federal Circuit recently reversed a bid protest decision appealed from the Court of Federal Claims after the protester raised a constitutional question. In Veterans4You LLC v. United States, the Department of Veterans Affairs (“VA”), an executive branch entity of the United State government (“USG”), sought to procure cable gun locks with information on the VA’s suicide prevention hotline ...
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GAO Finds SAM Registration Requirement to be Minor Informality
FAR 4.1102 requires offerors to register in the System for Award Management (“SAM”) at the time an offer is submitted to the government, with limited exceptions such as micro-purchases, classified contracts, emergency contacts, and some others. However, the Government Accountability Office (“GAO”) recently found that an offeror’s failure to renew its SAM registration was not so vital that such an oversight merited excluding the proposal ...
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Agency Requirement that Past Performance Occur at Specific Contracting Tier Found Unduly Restrictive
Procuring agencies have wide latitude in developing requirements for their solicitations. When provisions are challenged, the U.S. Government Accountability Office (“GAO”) merely evaluates whether the agency’s justification for the requirement at issue is rational and can withstand logical scrutiny. However, there are limits to the agency’s discretion. Agencies may not include requirements in solicitations that are unduly restrictive. Specifically, 10 U.S.C. § 2305(a)(1)(B)(ii) provides that ...
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