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
Protecting Our Nation’s Data, Part 2: Implementing Cyber Threat Incident Reporting and Information Sharing
In October 2023, the federal government released a Proposed Rule aimed at incorporating new cybersecurity reporting requirements into the Federal Acquisition Regulation (FAR). In this second installment of PilieroMazza’s blog series “Protecting Our Nation’s Data,” we discuss the Proposed Rule which seeks to implement Executive Order 14028 (EO 14028) and increase the exchange of information between contractors and the government regarding cyber threats and incident reporting. As the government continues to roll out new cybersecurity requirements, government contractors should understand these requirements, how they could . . . Read More
Protecting Our Nation’s Data, Part 1: Cybersecurity Standardization Requirements for Unclassified Federal Information Systems
New standardized cybersecurity compliance requirements are inbound. In early October 2023, the Federal Acquisition Regulation (FAR) Council issued a proposed rule ( Proposed Rule ) to standardize cybersecurity requirements across federal agencies for unclassified Federal Information Systems (FIS). This blog, the first in a series, addresses why government contractors should familiarize themselves with these requirements as non-compliance could affect contract eligibility and payment, as well as exposure to False Claims Act (FCA) liability. [1] Contractual cybersecurity requirements for unclassified FIS are currently . . . Read More
SBA and ISOO Issue Guidance on Facility Security Clearances for Joint Ventures
On October 5, 2023, the Information Security Oversight Office (ISOO) and the Small Business Administration (SBA) released a Joint Notice that provides guidance on the facility security clearance (FCL) requirements for joint ventures (JVs). Government contractors participating in JVs to pursue classified work should be aware of FCL requirements for each member of the joint venture. As outlined in a prior blog post, historically, there has been confusion as to whether a JV can rely on the FCLs of its members. Some of . . . Read More
DOL Increases Hourly Minimum Wage to $17.20 for Federal Contractors Starting January 1, 2024
Beginning on January 1, 2024, Executive Order 14026 (Order) will raise the minimum wage for workers performing work on or in connection with covered contracts to from $16.20 to $17.20 per hour, a second year of a significant adjustment to the minimum wage for service and construction workers doing work on federal projects. Government contractors in the service and construction sectors should evaluate how the minimum wage increase will affect their operations and pricing strategies when bidding on new government . . . Read More
New Developments in Ultima Case: Potential Effect on Current and Future SBA 8(a) Program Participants
On September 15, 2023, Ultima Services (Ultima) filed a motion in the U.S. District Court for the Eastern District of Tennessee seeking additional equitable relief in its suit challenging the constitutionality of the Small Business Administration’s (SBA) 8(a) Business Development Program (8(a) program). [1] Ultima’s motion comes after the SBA’s recent suspension of new applications to its 8(a) program to comply with U.S. District Court Judge Corker’s July 19, 2023, decision. 8(a) contractors should be aware of these developments as the court’s . . . Read More
Changes to Construction Prompt Payment Act: What It Means for Construction Contractors Operating in DC
In 2023, the Private Contractor and Subcontractor Prompt Payment Act of 20131 (the Act) was amended to include additional protections for subcontractors on private projects by limiting a contractor’s setoff rights related to claims or damages on other projects. This limitation also applies to first-tier subcontractors. Below, attorneys in PilieroMazza ’s Construction Group summarize what changes to the Act mean for construction contractors and subcontractors working on private construction projects in DC. The Act—which governs private projects—requires contractors and first-tier subcontractors to pay . . . Read More
SBA Tightens Enforcement of HUBZone Regulations
Government contractors maintaining or seeking HUBZone certification should make themselves aware of the Small Business Administration’s (SBA) recent efforts to tighten and enforce new and existing rules surrounding the HUBZone program. In this client alert, PilieroMazza details the SBA’s enforcement efforts and the major implications for HUBZone contractors who do not comply with program requirements. On September 20, 2023, the SBA issued a press release announcing its plan to strengthen enforcement of HUBZone regulations. The press release, titled “U.S. Small Business Administration Acts . . . Read More