What DOD’s Final DFARS Rule Means for Defense Contractors, American Manufacturing, and Protecting the Nation’s Supply Chain
On February 15, 2024, the Department of Defense (DOD) issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Executive Order (EO) 14005, Ensuring the Future Is Made in All of America by All of America’s Workers, and strengthen Buy American Act (BAA) domestic preferences in DOD procurements. Below, PilieroMazza explains the final rule’s implications for defense contractors in the manufacturing sector and safeguarding the defense industry’s supply chain. Evolution of BAA Domestic Preference Rules The DOD’s final . . . Read More
SBA’s 8(a) Program Again Challenged and the Potential Impacts on Native Owned Entities
The Small Business Administration’s (SBA) 8(a) Business Development Program (8(a) program) faced new constitutionality challenges in a case filed at the U.S. Court of Federal Claims (COFC) by Advanced Simulation Technology Inc. (ASTi). ASTi protested a contract awarded to an Alaska Native Corporation (ANC) alleging, among other things, that the entire tribal 8(a) program is unconstitutional. While this case will likely be dismissed for reasons wholly unrelated to the constitutionality challenge, these allegations are sure to be raised again by . . . Read More
Federal Judge Orders Minority Business Development Agency to Serve All Business Owners Regardless of Race
On March 5, 2024, a federal judge ordered the Department of Commerce’s Minority Business Development Agency (MBDA) to immediately stop considering a business owner’s race or ethnicity in determining whether an applicant may receive business-related benefits and services from MBDA Business Centers nationwide, including assistance with accessing capital and pursuing government contracting opportunities. [1] Judge Mark T. Pittman, U.S. District Judge for the Northern District of Texas, ruled that MBDA’s use of the presumption that certain individuals—including African Americans, Latinos, American . . . Read More
Decoding the 2024 NDAA: Implications for Defense Contractors Small and Large
The National Defense Authorization Act (NDAA) for Fiscal Year 2024 (FY24), signed into law on December 22, 2023, signals significant changes across the defense acquisition and contracting landscape. These changes are poised to reshape how the Department of Defense (DOD) engages with contractors, emphasizing transparency, accountability, and fairness. PilieroMazza examines key themes and provisions in the NDAA that DOD government contractors (small and large) should know to take advantage of contract opportunities and maintain compliance requirements. Background The NDAA is annual . . . Read More
Rule of Two Changes: OMB Memo Aims to Make Rule of Two Apply to Task and Delivery Orders and SBA’s Proposed Rules, Coming Soon, Will Shape the Future Procurement Landscape
On January 25, 2024, the White House Office of Management and Budget issued a memo, Increasing Small Business Participation on Multiple-Award Contracts, calling for executive agencies to apply the FAR’s Rule of Two to task and delivery orders competed under multiple-award contracts. Contractors should take note that this change has the potential to significantly increase the number of small business set-asides, and in turn, it could mean millions more dollars in contract opportunities for small businesses. In this blog, we . . . Read More
Forgiveness Denied: Protecting Your Rights During the PPP Loan Appeal Process
In 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act established the Paycheck Protection Program (PPP). Under the PPP, eligible businesses could receive loans for support through unprecedented times. Loan forgiveness was all but promised by not only lenders processing the loans, but the Small Business Administration (SBA) which was tasked with implementing the program. With SBA planning to claw-back PPP loans for years to come, borrowers should be aware of how to protect their rights when appealing a . . . Read More
Good News for Pandemic-Related Government Contract Claims: McCarthy HITT – Next NGA West JV
On December 20, 2023, the Armed Services Board of Contract Appeals (the Board) denied the government’s motion to dismiss pandemic-related claims. In doing so, the Board rejected the government’s arguments alleging that the claims (1) failed to state a claim, (2) were barred by the sovereign acts affirmative defense, and (3) failed to provide a clear amount as required by the Contracts Disputes Act. The Board’s rejection of the government’s motion to dismiss in McCarthy HITT – Next NGA West . . . Read More
Subcontract Flow-Down Provisions: Constructive Acceleration and Delays on Federal Projects
A contractor’s claims against the government for constructive acceleration and delays are governed, in part, by the applicable clauses of the Federal Acquisition Regulations (FAR) incorporated into its contract with the government. Whereas a subcontractor’s claims against a contractor for constructive acceleration and delays are governed, in part, by which FAR clauses are incorporated into its subcontract. Prime contractors and subcontractors on federal projects should be aware of the importance of understanding flow-down provisions in subcontracts and how they can . . . Read More
Inter-Con Security Systems: Significance of CBCA’s Decision on Government Contractors
On September 29, 2023, the Civilian Board of Contract Appeals (CBCA) ruled that a federal contractor could not collect damages from the U.S. Marshals Service (USMS). The contractor’s claim, asserting that it was being sued by former employees as a result of government action, was rejected by the CBCA. The CBCA’s decision in Inter-Con Security Systems, Inc. v. U.S. Dept. of Justice, CBCA No. 6995, suggests that when government action is justified by contract language, a lawsuit filed by a former . . . Read More
Protecting Our Nation’s Data, Part 3: Are Goods or Services Subject to FASCSA Orders?
Substantive cybersecurity amendments to the Federal Acquisition Regulation (FAR) are underway, significantly altering the duties and obligations of federal government contractors both prior to award and during contract performance. The FAR Council issued an Interim Final Rule implementing Section 202 of the Federal Acquisition Supply Chain Security Act of 2018 (FASCSA) [1] , as well as a 2021 Final Rule ( Final Rule ) granting the Federal Acquisition Security Council (FASC) authority to issue orders excluding or removing goods or services from the supply chain that . . . Read More