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OFCCP Promulgates Final Rule Eliminating Its Authority Over TRICARE Providers

By Jennifer Plitsch & Michael Wagner

July 27, 2020

On July 2, 2020, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) promulgated a final rule resolving long-standing uncertainty regarding its enforcement authority over health care providers participating in TRICARE, a federal program that provides health care to service members, veterans, and their families.[1] The rule officially removes OFCCP’s regulatory authority over TRICARE providers by amending the definition of “subcontract” set forth in the governing Department of Labor regulations. Although the…

Inside Government Contracts

“Section 889” Prohibition on “Use” of Covered Telecommunications Equipment by Federal Contractors Released as an Interim Rule

By Susan B. Cassidy, Samantha Clark, Ryan Burnette, Darby Rourick & Zachary Mears

July 24, 2020

On July 10, 2020, the interim rule implementing Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. No. 115-232) was released by the U.S. Government’s Federal Acquisition Regulatory Council. Section 889 prohibits the U.S. Government from buying (as of August 2019)—or contracting with an entity that uses (as of August 2020)—telecommunications equipment or services produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate…

Inside Government Contracts

Look Before You Release — ASBCA Enforces Release of Claims to Contractor’s Detriment

By Kayleigh Scalzo, Kevin Barnett & Carl Wiersum

July 16, 2020

A recent Armed Services Board of Contract Appeals decision serves as a timely reminder for contractors to carefully read and consider any release of claims before signing — especially when you may have otherwise-recoverable coronavirus-related cost increases.…

Inside Government Contracts

Defense Contractors Say Section 3610 and Other Contractor Support Measures Require Relief

By Scott A. Freling, Michael Wagner & Peter Terenzio

July 15, 2020

It goes without saying that the COVID-19 pandemic has significantly affected the Department of Defense (“DoD”) and the defense industrial base. And while Congress has taken steps to mitigate these impacts, the sheer scale of the pandemic’s effects pose a continuing challenge to both DoD and its contractors. Now a group of major defense contractors has submitted a pair of joint letters to the Pentagon and OMB highlighting the need for further action and the…

Inside Government Contracts

GAO Clarifies Timing for Corrective Action Protests

By Peter Terenzio & Kayleigh Scalzo

July 8, 2020

Although it is usually good news for a protester when an agency takes corrective action, the corrective action sometimes fails to adequately address the protest grounds. When this occurs, a protester may wish to file a new protest challenging the agency’s corrective action. The question of when to file a corrective action challenge is often tricky, however — and a misstep can result in dismissal. GAO recently clarified that timing in Computer World Services Corporation…

Inside Government Contracts

Contractor Supply Chain Readiness – An Update on Expected Regulatory Changes

By Susan B. Cassidy, Samantha Clark & Ryan Burnette

July 2, 2020

In recent years, both Congress and the Executive Branch have made it a key priority to mitigate risks across the industrial and innovation supply chains that provide hardware, software, and services to the U.S. government (“USG”). Five of these initiatives are likely to result in new regulations in 2020, each of which could have a fundamental impact on companies’ ability to sell Information, Communications, Technology and Services (“ICTS”) to the USG. As these requirements begin…

Inside Government Contracts

GSA Awards First Contracts to Develop an Online Shopping Platform, and the White House Seems to Be Paying Attention

By Michael Wagner & Evan R. Sherwood

June 30, 2020

On Friday, the General Services Administration (“GSA”) announced that it had awarded three contracts to develop online shopping portals for commercially-available off-the-shelf (“COTS”) items. The awardees are Amazon Business, Fisher Scientific, and Overstock.com.…

Inside Government Contracts

Federal Circuit Splits on Blue & Gold Question in Inserso

By Kayleigh Scalzo & Peter Terenzio

June 24, 2020

It’s a big deal in the government contracts community whenever the Federal Circuit weighs in on a bid protest. And it is a particularly big deal when the Federal Circuit issues a split opinion in a bid protest. That’s what happened last week in Inserso Corporation v. United States (No. 2019-1933), where the Federal Circuit issued a split opinion denying a protest as waived under Blue & Gold.…

Inside Government Contracts

With Potential New TINA Audits on the Horizon, the ASBCA Provides a Helpful Primer on Defending Against Defective Pricing Claims

By Frederic Levy, Peter B. Hutt II & Evan R. Sherwood

June 16, 2020

Late last year, a spokesman for the Department of Defense announced without fanfare that the agency would increase audits of certified cost or pricing data under the Truth in Negotiations Act (“TINA”). While the full effect of that enhanced focus on TINA compliance remains to be seen, a recent decision by the Armed Services Board of Contract Appeals (“ASBCA”) provides helpful guidance for navigating upcoming TINA audits and defending against defective pricing claims, particularly in…

Inside Government Contracts

Whose Knowledge Counts? The Expanding Scope of Government Knowledge in FCA Cases

By Michael Wagner & Dan Grant

June 15, 2020

This week marks the four-year anniversary of the Supreme Court’s landmark False Claims Act decision in Universal Health Services, Inc. v. Escobar, 136 S. Ct. 1989 (2016). In Escobar, the Supreme Court confirmed that the question of government knowledge lies at the heart of FCA liability determinations, but it did not specifically address who counts as “the Government” for purposes of this inquiry. Since Escobar, however, a number of circuits have confirmed that the relevant…

Inside Government Contracts

Procurement Law and Policy Insights

Blog Authors

OFCCP Promulgates Final Rule Eliminating Its Authority Over TRICARE Providers

“Section 889” Prohibition on “Use” of Covered Telecommunications Equipment by Federal Contractors Released as an Interim Rule

Look Before You Release — ASBCA Enforces Release of Claims to Contractor’s Detriment

Defense Contractors Say Section 3610 and Other Contractor Support Measures Require Relief

GAO Clarifies Timing for Corrective Action Protests

Contractor Supply Chain Readiness – An Update on Expected Regulatory Changes

GSA Awards First Contracts to Develop an Online Shopping Platform, and the White House Seems to Be Paying Attention

Federal Circuit Splits on Blue & Gold Question in Inserso

With Potential New TINA Audits on the Horizon, the ASBCA Provides a Helpful Primer on Defending Against Defective Pricing Claims

Whose Knowledge Counts? The Expanding Scope of Government Knowledge in FCA Cases

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