Gordon Rees Scully Mansukhani announces the latest update from the firm's Government Contracts practice group, bringing you an overview of recent notable decisions, rule updates, and other critical information related to contracting with federal and state governments. Our team compiled the most pertinent legal developments in the ever-evolving landscape of government contracts to keep you informed. Please contact Patrick Burns or Meredith Thielbahr for further information regarding the cases and administrative actions highlighted below.
Recent Cases:
REV, LLC v. United States, Aptive Res., LLC, No. 2022-1759, 2024 WL 315925 (Fed. Cir. Jan. 29, 2024)
- In this protest matter, the plaintiff-contractor claimed prejudice resulting from the Department of Veterans’ Affairs’ ("VA") unreasonable assignment of technical ratings to other offerors. Consequently, the VA eliminated the plaintiff from advancing to the second competitive range of offerors (i.e. a narrowed grouping of offerors). The U.S. Court of Federal Claims held that the plaintiff could not satisfy the necessary prerequisite that it had a substantial chance of winning the award, based on the number of other offerors. The U.S. Court of Appeals for the Federal Circuit (“CAFC”) disagreed, reversing the lower court’s dismissal. In rendering its opinion, CAFC held that the VA would have included the plaintiff in the second competitive range had it adhered to its stated criteria for determining the remaining offerors.
Proposed Agency Rules:
DoD, GSA, NASA - Improving Consistency between Procurement and Nonprocurement Procedures on Suspension and Debarment
- This proposed rule aims to align the Federal Acquisition Regulation ("FAR") and the Nonprocurement Common Rule systems for suspension and debarment, with the goal of enhancing transparency and consistency. While the two systems share common principles, the respective agencies believe the procedural and definitional differences prompt this alignment. The rule maintains the immediate exclusion effect of a notice of proposed debarment under FAR for procurement transactions.
- The comment deadline is March 11, 2024. Contact the GRSM Government Contracts practice group for additional details of the proposed rule and comment submission.
DoD, GSA, NASA - Limitations on Subcontracting Revisions
- The DoD, GSA, and NASA propose modifications to the FAR in line with regulatory updates from the Small Business Administration. The proposed changes aim to enhance clarity and simplicity in the limitations on subcontracting and the nonmanufacturer rule with the goal of facilitating easier implementation for offerors, contractors, and contracting officers. The agencies claim the suggested modifications will improve small business participation, as certain costs would be excluded from the limitations on subcontracting calculations with the goal of ensuring that set-aside contracts effectively reach their intended beneficiaries.
- The comment deadline is March 18, 2024. Contact the GRSM Government Contracts practice group for additional details of the proposed rule and comment submission.
DoD, GSA, NASA - Pay Equity and Transparency in Federal Contracting
- The DoD, GSA, and NASA propose changes to the FAR regarding a government-wide policy developed by the Administrator for Federal Procurement Policy. The policy aims to restrict contractors and subcontractors from considering job applicants' compensation history for specific positions. Additionally, contractors and subcontractors would be obligated to disclose the compensation offered to hired applicants in job announcements for certain positions. The proposed rule seeks to implement these measures, prohibiting the use of compensation history as a hiring criterion and mandating disclosure of compensation in job advertisements for government contract-related positions.
- The comment deadline is April 1, 2024, Contact the GRSM Government Contracts practice group for additional details of the proposed rule and comment submission.
Forthcoming Agency Rules:
GSA - Standardizing Federal Supply Schedule Clause and Provision Prescriptions
- The GSA released a final rule to amend the General Services Administration Acquisition Regulation ("GSAR"), aiming to provide clarity on the application of GSAR clauses to Federal Supply Schedule contracts. The goals of the proposed rule are to (1) ensure proper utilization of clauses by GSA's contracting officers, (2) offer adequate guidance on the delegation process to other government agencies, (3) outline documentation procedures for contract files, and (4) establish protocols for requesting deviations. The GSA does not believe the modifications will affect the roughly 13,000 existing Federal Supply Schedule contractors.
- Rule effective February 12, 2024.
NSA - Removal of Total Compensation Plan Language
- NASA is finalizing amendments to the NASA Federal Acquisition Regulation Supplement ("NFS") and corresponding Code of Federal Regulations ("CFR") sections related to a solicitation provision and clause. The proposed rule, introduced in the Federal Register on October 2, 2023, sought to remove NFS 1831.205–671 (Solicitation Provision) and NFS 1852.231–71 (Determination of Compensation Reasonableness) from the NFS. NASA deems these provisions unnecessary as they duplicate FAR provision 52.222–46, titled “Evaluation of Compensation for Professional Employees.” Through the new rule, NASA seeks to ensure consistency in data provided to NASA and subsequent evaluations for fair and reasonable wages without altering the existing periodic review requirements for cost reimbursement contracts.
- Rule effective February 23, 2024.
GRSM Government Contracts Practice Group
GRSM's government contracts team has considerable experience defending and enforcing the rights of our contractor clients in disputes against government entities and private businesses. In addition to litigating claims in state and federal courts, we routinely handle matters before administrative tribunals, such as the Government Accountability Office, the Small Business Administration, and the Armed Services Board of Contract Appeals.
Our team of attorneys is located throughout the United States, which allows the firm to represent contractors, regardless of size, and in a wide variety of industries, including defense, information technology, construction, and aerospace, among others. Please contact the authors with any questions. GRSM would like to acknowledge the significant contributions to this update by Quyen Dang.
Contacts:
Patrick Burns - pburns@grsm.com
Meredith Thielbahr - mthielbahr@grsm.com