Requests for Equitable Adjustment Versus Claims: Which Should Contractors Pursue?

Government contractors in various industries encounter increased costs and / or delays caused by the government while performing government contracts. For instance, a contractor may have increased costs in performing a contract as a result of compliance with new COVID-19 requirements imposed by the government that were not included in the original contract. Or, a construction contractor may be required by the contracting officer to perform additional work that is outside the scope of the contract. Likewise, a construction contractor . . . Read More

GAO Confirms Joint Ventures Pursuing DOD Contracts May Rely on Facility Clearances of Their Members

In a recent decision , the Government Accountability Office (GAO) sustained a protest challenging the terms of a solicitation because it required that a joint venture (JV) pursuing an Air Force contract hold a facility clearance (FCL), which is prohibited by the National Defense Authorization Act (NDAA) of 2020 and U.S. Small Business Administration (SBA) regulations.  This decision has significant implications for JVs pursuing classified contracts and underscores the value of protests as a useful procurement tool for government contractors. Background . . . Read More

Sovereign Acts Doctrine: New Government Defense Tactic Against COVID-Related Claims and REAs

With the rise in COVID-19 cases due to the Delta variant, government contractors and the government agencies they work with may also see a rise in COVID-related claims and requests for equitable adjustment (REAs) linked to their contracts.  In this blog, PilieroMazza reviews a key government defense tactic, the Sovereign Acts Doctrine (the Doctrine), that contractors should be aware of to help them better prepare before filing a claim or REA. What is the Sovereign Acts Doctrine? The Doctrine provides . . . Read More

Proposed Rule Seeks to Strengthen Impact of Buy American Act – 6 Key Takeaways

On January 25, 2021, President Biden signed an Executive Order titled “Ensuring the Future Is Made in All of America by All of America’s Workers” (Executive Order).  As PilieroMazza previously explained , the Executive Order directed that a number of actions be taken in furtherance of the Biden administration’s overarching policy to maximize the procurement of goods, products, and materials from sources that will help American businesses compete in strategic industries and help American workers thrive.  This included a direction for . . . Read More

Civilian Agency Acquisition Council Authorizes Agencies to Issue Class Deviations to Make Limitations on Subcontracting Compliance More Uniform

The Federal Acquisition Regulatory Council (FAR Council) recently issued a final rule on August 11, 2021, updating the Federal Acquisition Regulation (FAR) limitations on subcontracting (LOS) rule to more closely mirror the U.S. Small Business Administration’s LOS regulation. However, inconsistencies between the two sets of regulations remain. To bridge the divide, on August 13, 2021, the Civilian Agency Acquisition Council (CAAC) released a memorandum authorizing civilian agencies to issue FAR class deviations adopting certain exceptions to the LOS requirements for small . . . Read More

CIO-SP4 Amendment 7: Major Changes for Small Business and Large Business Prime / Subcontractor Teams

The National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC) just issued major changes to the Chief Information Officer-Solutions and Partners 4 (CIO-SP4) Request for Proposals (RFP) under Amendment 7 to the RFP. These changes will impact both small and large business teams who intend to rely on subcontractors (i.e. FAR 9.601(2) Contractor Team Arrangement (CTA) members). For small business teams, Amendment 7 clarifies that only first-tier subcontractors can be used for purposes of meeting the requirements for . . . Read More

DOD Cancels $10 Billion JEDI Contract, Takes New Direction on Cloud Procurement

On July 6, 2021, the Department of Defense (DOD) canceled its $10 billion Joint Enterprise Defense Infrastructure (JEDI) cloud procurement, close to two years after issuing the award to Microsoft and merely two months after the U.S. Court of Federal Claims issued a sealed decision denying the Department of Justice’s and Microsoft’s motions to dismiss Amazon Web Services’ (Amazon) bid protest challenging the award. This end to the JEDI saga will likely shape the decisions of other agencies as they . . . Read More

Has Your Claim Been Flagged for Fraud? How It Impacts Your Ability to Appeal Before the Civilian Board of Contract Appeals

A recent decision [1] from the Civilian Board of Contract Appeals (CBCA) in the appeal of Widescope Consulting and Contracting Services sheds some light on the issue of whether the CBCA lacks jurisdiction over an appeal of a claim that a contracting officer has flagged for suspected fraud. Based on the Widescope decision, if a contracting officer merely suspects fraud and claims they have been divested of the authority to issue a decision on a claim, contractors will have the right . . . Read More

New CIO-SP4 Modification – An Undue Restriction on Competition and a Violation of SBA Regulations?

On June 22, 2021, the National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC) issued its third modification to the Chief Information Officer-Solutions and Partners 4 (CIO-SP4) Request for Proposals (RFP). Among other things, NITAAC made significant changes to how subcontractors and mentors in Small Business Administration (SBA) approved mentor-protégé programs are treated for purposes of the evaluation. The RFP appears to disallow the use of any subcontractor experience, past performance, or other qualifications, including from small businesses, . . . Read More

DOD, GSA, and NASA Issue Proposed Rule to Update the HUBZone Program in the FAR

The Small Business Administration (SBA) updated its Historically Underutilized Business (HUBZone) program in a final rule issued on November 26, 2019, at 84 FR 65,222. The Department of Defense, General Services Administration, and the National Aeronautics and Space Administration have issued a proposed rule seeking to amend the Federal Acquisition Regulation (FAR) to correspond with the updates made by the SBA. The proposed changes to the FAR include: updating the small business concern definition, adding in status protest procedures for . . . Read More