Articles Posted in Government Contracts

Recently, our colleague Glenn Sweatt published their Client Alert titled DFARS Clause Blocks Funding for Unsafe Projects in Afghanistan, Recently published regulation implements the FY17 NDAA to prohibit use of funds for DoD construction and infrastructure programs and projects in Afghanistan that cannot be safely accessed by U.S. Government personnel. Takeaways include:

• New rule prevents Government contracting officers from funding projects that are not able to be safely accessed by Government civilian or military personnel, as these may pose an increased risk of fraud, corruption or waste, or lack efficient oversight.
• The Government has awarded projects in Afghanistan at locations that Government personnel have not been able to safely travel to and access, leading to inefficient oversight and a profusion of disputes and claims.
• Waivers will be available at increasing thresholds, but any project over $40M will require waiver by the Secretary of Defense and Congressional notification.

Today, our colleagues Dick Oliver and Glenn Sweat published their Client Alert titled New Proposed DoD Cyber Guidance May Fuel Bid Protest Docket,  Newly published draft DoD Guidance for Reviewing System Security Plans (SSP) and the “NIST SP 800-171 Security Requirements Not Yet Implemented” answer some questions but may also result in an increased protest docket due to ambiguous evaluation criteria. Key takeaways include:

• Industry has been seeking clarity on the Department of Defense’s cybersecurity clause, since its December 31, 2017 implementation date, particularly as it relates to how the Government will review a Contractor’s System Security Plan (SSP); the new guidance indicates the Government’s evaluation of Contractors’ SSPs will also be used as evaluation criteria in new contract awards.
• A growing list of Frequently Asked Questions has answered some questions, but more guidance was needed, and is being provided in the form of an SSP priority ranking matrix.
• Public comments on the proposed draft guidance are due May 31, 2018, and early contractor feedback is that the guidance is helpful but hardly dispositive of the myriad questions surrounding the new rule.

Today, our colleague Dick Oliver posted his Alert titled Changes Imminent for GAO Bid Protests. Takeaways include:

• The Government Accountability Office’s (GAO) recently issued final rule implements a formal electronic filing system and imposed a one-time, nominal filing fee;
• Other changes clarify ambiguities or conflicts in the prior regulations; and
• Changes take effect on May 1, 2018.

Today, our colleagues John Jensen, Dick Oliver and David Dixon published their Alert titled Defenders of the Debriefing, New DoD rules enhance contractors’ post-award debriefing rights. Takeaways include:

• New rules for all Department of Defense (DoD) agencies expand offerors’ rights in connection with post-award debriefings in federal procurements.
• Offerors now have 2 business days to submit questions to agencies after their debriefings begin, and the debriefings are not concluded until the agencies answer those questions, which they must do in writing within 5 business days.
• The protest clock for a disappointed offeror only begins to run after the agency answers the offeror’s questions.

The Office of Federal Contract Compliance Programs (OFCCP) has issued its Directive (DIR) 2018-01 as part of ongoing efforts to increase transparency of preliminary findings with federal contractors, and to achieve consistency across regional and district offices, standardizing the use of Predetermination Notices (PDN). A PDN is a letter that OFCCP uses to inform federal contractors and subcontractors (contractors) of OFCCP’s preliminary findings of employment discrimination. Directive 2018-01 provides a uniform protocol for OFCCP staff to follow for using PDNs in both individual and systemic discrimination cases.

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Our colleague John Jensen recently published his Alert titled Proposals Should Carefully Address Pending Corporate Deals Lockheed Martin’s recent success in overcoming GAO protests shows that fully explaining a transaction in the works can be a key proposal element. In the Alert, John discusses the U.S. Government Accountability Office’s (GAO) recently announced denial of three protests filed by disappointed offerors Enterprise Services LLC, Accenture Federal Services LLC and CSRA LLC challenging the Social Security Administration’s award of an IT contract to Lockheed Martin Corp.

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