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Government Contracts Legal Round-Up | 2021 Issue 6

Welcome to Jenner & Block’s Government Contracts Legal Round‑Up, a biweekly update on important government contracts developments. This update will offer brief summaries of key developments for government contracts legal, compliance, contracting, and business executives.

Regulatory Update

1. Class Deviation 2021-O0003: DFARS 252.239-7098 Prohibition on Contracting to Maintain or Establish a Computer Network Unless Such Network is Designed to Block Access to Certain Websites – Representation (Apr. 2, 2021)

  • This Class Deviation sets out a new representation for contracts to maintain or establish a computer network that are funded under the Consolidated Appropriations Act, 2021 (Pub. L. 116-260) (the Act), or extensions to the Act.
  • For covered solicitations, by submission of an offer, the offeror represents “that it is not providing as part of its offer a proposal to maintain or establish a computer network unless such network is designed to block access to pornography websites.” 
  • Contracting officers will include the provision at 252.239-7098, in all solicitations, including solicitations for the acquisition of commercial items under FAR part 12.
  • Funding under the Act may be still used by law enforcement to carry out activities related to criminal investigations, national defense, and intelligence. 

Contractors anticipating submitting proposals that include maintaining or establishing a computer network will want to ensure compliance with this new “porn blocking” representation and evaluate any needed changes to supply chain representations.

2. Implementation of the Government Furnished Property Module (Mar. 24, 2021)

  • As of January 2021, and in accordance with DFARS subpart 245.102(5), contractors are required to report the loss of Government property in the GFP Module in lieu of the Defense Contract Management Agency (DCMA) Property Loss eTool. 
  • Training resources on how to use the GFP Module are available at the DoD Procurement Toolbox and live webinars are posted here.

Contractors should note increased oversight of Government property. DoD describes its GFP Module as “an important step” in addressing “DoD’s material weakness in better accounting for Government Property” in contractors’ possession. The tool supports DoD’s strategic plan for defense-wide procurement financial and audit improvements. Documentation and data for completed loss cases in the GFP Module will be saved, allowing greater insight into loss patterns.

3. Securing the Information and Communications Technology and Services Supply Chain: Licensing Procedures (Mar. 29, 2021)

  • On January 19, 2021, the Department of Commerce (the Department) published an interim final rulemaking, ‘‘Securing the Information and Communications Technology and Services Supply Chain,’’ which became effective on March 22, 2021. 
  • This rule allows the Secretary of Commerce, in accordance with Executive Order 13873, to prohibit certain information and communications technology and services transactions (ICTS Transactions) to address national security threats.
  • ICTS Transactions include provision of services. The term includes all transactions that occurred on or after January 19, 2021, by any person owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary. Providing services, such as software updates, to US persons may provide a foreign adversary an opportunity to engage in activities that may threaten US national security.
  • In its January 19 notice, the Department stated it would implement a licensing process by May 19th for entities seeking pre-approval before engaging in or continuing to engage in ICTS Transactions.
  • Because additional public input is needed and the Department no longer expects to meet its May 19 deadline, the Department seeks public input through April 28, 2021, on such a licensing or other preclearance process.

In this Advanced Notice of Proposed Rulemaking, the Department of Commerce seeks public input by April 28, 2021 on all aspects of a future ICTS licensing process, including potential models for creating a process that would provide entities seeking to engage in an ICTS Transaction greater certainty that the transaction will not be prohibited.

Protest Cases

1. TekSynap Corp., B-419464; B-419464.2 (Mar. 19, 2021)

  • GAO sustained a protest challenging the National Geospatial-Intelligence Agency’s (NGA) evaluation of proposals and decision not to hold discussions.
  • Specifically, GAO found the agency unreasonably assigned only a “slight weakness” to the awardee despite one of its key personnel failing to meet a mandatory qualification. In a cascading effect, this meant the management plan subfactor rating of “outstanding” was unreasonable, and the overall “outstanding” rating for the technical/management factor was unreasonable.
  • GAO also held that the assignment of a “moderate strength” rather than a “significant strength” to the protester’s proposal was unreasonable when the evaluators positively described numerous merits of the proposal in detail and used language associated with a significant strength.
  • Based upon these errors, GAO concluded that NGA’s decision not to enter into discussions with TekSynap—because the agency had determined the awardee’s proposal was technically superior—was necessarily unreasonable.

2. IAP World Services, Inc., B-418566.2 et al., Aug. 20, 2020 (published Mar. 24, 2021)

  • GAO denied a protest alleging that awardee Vectrus-J&J Facilities Support, LLC (VJFS) materially misrepresented its management structure by failing to disclose an imminent sale. One of VJFS’s joint venture members (J&J Maintenance) was subject to a stock purchase several weeks after it was awarded the contract.
  • As a general matter, an offeror’s material misrepresentation in its proposal can invalidate an agency’s evaluation, and serve as a basis to cancel any contract award.
  • Here, GAO agreed with the contracting agency (the Navy) that even if there had been a misrepresentation, it did not invalidate the agency’s evaluation. While the Navy cited VJFS’s experience and past performance in its best value determination, the stock purchase did not impact VJFS’s stated experience or past performance as J&J’s operations, management team, and resources remained the same.
  • Notably, GAO also explained that even assuming that VJFS had a duty to notify the agency about the potential future stock transaction and failed to do so, the protester was not prejudiced by any failure to notify.

Where an offeror’s proposal represents that it will perform a contract in a manner materially different from the offeror’s actual intent, an award based on such proposal cannot stand, since both the offeror’s representations, and the agency’s reliance on such, have an adverse impact on the integrity of the procurement process. But GAO will not sustain a protest alleging a misrepresentation unless the protester can demonstrate competitive prejudice from the awardee’s failure to notify the contracting agency of any changes to its proposal.

Claims Cases

1. Appeal of L3 Technologies, Inc., ASBCA Nos. 61811, 61813, 61814 (Mar. 1, 2021)

  • L3 appealed multiple contracting officer’s final decisions (COFDs) disallowing costs, including for “other direct costs” and overhead expenses.
  • The COFDs were based on DCAA incurred cost audits for 2011-2014, which employed cost sampling and then extrapolated the questioned cost amounts across the entirety of the sample pool.
  • During discovery, the contracting officer withdrew the COFDs, stating that the government would no longer challenge the costs. The government moved to dismiss the appeals.
  • L3 sought to continue the appeals over the government motion to dismiss, desiring a decision on the merits. L3 argued that the government had engaged in a pattern of asserting and then withdrawing such incurred cost disallowance claims.
  • The board dismissed the claims, holding that they were moot and not subject to any exception to the mootness doctrine.
  • Judge Clarke dissented, noting that “The majority decision subjects L3 (and other contractors) to the unfortunate chain of events discussed below until DCAA and DCMA resolve whatever their differences are.”

The painful pattern seen here is familiar to many government contractors: delayed DCAA audits result in rushed COFDs to avoid the statute of limitations. Contractors must then defend against a government claim, often seeking millions of dollars in previously paid amounts. Unfortunately, this decision gives contractor’s little hope of relief and highlights the need to pay close attention to all DCAA audits and disallowances.

2. Appeal of SRA International, Inc., CBCA Nos. 6563, 6564 (Mar. 19, 2021)

  • SRA appealed COFDs disallowing $29 million in costs on two State Department contracts following DCAA incurred costs audits.
  • After a structured negotiation process, SRA secured a complete withdrawal of the COFDs and dismissal of the government claims with prejudice.

Continuing the theme of government cost disallowance claims, this case demonstrates the benefit of engaging experienced outside counsel to assist in dealing with DCAA audits, disallowances, and any resulting COFDs or government claims.


Government Contracts Legal Round-Up | 2021 Issue 5

Welcome to Jenner & Block’s Government Contracts Legal Round‑Up, a biweekly update on important government contracts developments. This update summarizes key developments for government contracts legal, compliance, contracting, and business executives.

Regulatory Activity

1. Withdrawal of Several FAR Cases on March 19, 2021

The change in administration has resulted in the review and withdrawal of several rules pending for years. Because of the passage of time, the FAR Council favors further consideration under new FAR cases, if at all. One FAR case (2018-002) was withdrawn as it was tied to a now-revoked executive action. The rules withdrawn include:

  • FAR Case 2011-001: Withdrawal of Organizational Conflicts of Interest 
  • FAR Case 2012-015: Withdrawal of Small Business Set Asides for Research and Development Contracts
  • FAR Case 2013-022: Withdrawal of Extension of Limitations on Contractor Employee Personal Conflicts of Interest 
  • FAR Case 2018-002: Withdrawal of Protecting Life in Global Health Assistance

2. Request for Comments on Semiconductor Manufacturing by US Department of Commerce

  • In response to President Biden’s Executive order on “America’s Supply Chains,” the Secretary of Commerce must submit a report within 100 days that: (1) identifies risks in the semiconductor manufacturing and advanced packaging supply chains; and (2) proposes policy recommendations to address these risks.
  • The FY 21 NDAA also includes a provision to incentivize the production of semiconductors for the US, and mandates several actions to secure the semiconductor-related supply chain.
  • This notice requests comments by April 5, 2021 to assist the Commerce Department in preparing its report to the White House.Publish

3. Department of Labor Plans to Rescind Two Rules Related to Independent Contractors and Joint Employers Finding They “Weaken” Protections to Workers Under the Fair Labor Standards Act

  • The first Notice of Proposed Rulemaking proposes the withdrawal of the Independent Contractor Final Rule issued on Jan. 7, 2021. This rule adopted a new “economic reality” test that narrowed or minimized other factors considered by courts traditionally, making it less likely a worker will be found an employee subject to FLSA protections. Independent contractors have no FLSA protections, but employees are eligible for the federal minimum wage and overtime.
  • The second Notice of Proposed Rulemaking seeks to rescind a current regulation on joint employer relationships under the Fair Labor Standards Act, effective March 16, 2020. On September 8, 2020, the US District Court for the Southern District of New York vacated portions of the Joint Employer Rule, stating that the rule was contrary to the FLSA and was “arbitrary and capricious” due to its failure to explain a shift from prior guidance or to consider the effect of the rule on workers.
  • The Department of Labor invites comments on both proposed rules by April 12, 2021.

Protest Cases

1. People, Technology and Processes, LLC, B-419385, B-419835.2 (Feb. 2, 2021) (published Mar. 15)

  • GAO found unobjectionable the General Services Administration’s (GSA) rejection of a late-submitted proposal.
  • The request for proposals (RFP) required that offers be submitted by October 13, 2020, via the agency’s online proposal submission portal, “GSA ASSIST.” The RFP warned that proposals received after the closing data and time would not be considered.
  • The protester had trouble with the online portal—it uploaded materials but was unable to click submit—so it emailed the proposal to the contracting officer instead.
  • Even though the protester had uploaded proposal materials prior to the deadline, GAO noted that the protester maintained the ability to revise its proposal by uploading new, modified attachments until the moment it pressed the “submit” button. Thus, GAO found that the uploaded materials were never under the government’s control.
  • GAO also found that the use of email to submit the proposal was not authorized by the RFP.

Late is late. It is an offeror’s responsibility to deliver its proposal to the government office designated in the solicitation by the time specified, and an agency is not required to consider a proposal where there is no evidence that the proposal was actually received.

2. HVF West, LLC v. United States, CAFC No. 2020-1414, 2020-1583 (Feb. 19, 2021)

  • The Court of Appeals for the Federal Circuit reversed a Court of Federal Claims decision, finding that the successful protester actually lacked standing to bring its COFC protest.
  • HVF protested the Defense Logistics Agency’s (DLA) award of a “sales contract” for the purchase and destruction of surplus Government military equipment. Given that DLA technically was selling the property to the contractor, DLA awarded the contract to the highest bidder, Lamb Depollution, Inc. HVF was fourth in line for the contract.
  • First at the agency-level, then at GAO, and eventually at COFC, HVF raised numerous “detailed allegations” to challenge the award to Lamb, and HVF also questioned the experience of the two intervening bidders. COFC sustained the protest, finding that HVF showed that DLA erred in finding Lamb satisfied all non-price criteria in the solicitation.
  • On appeal, the Federal Circuit found that HVF’s challenges to the intervening offerors were “based upon conjecture,” which was insufficient for HVF to establish that it had a substantial chance of winning the award such that it qualified as an interested party. More specifically, HVF alleged only that the intervening bidders “failed to meet the standards for a successful pre-award survey,” a conclusory statement deemed insufficient to question the eligibility of the intervening bidders.

To have standing to bring a bid protest, a losing bidder must be an interested party; that is, an actual or prospective bidder whose direct economic interest would be affected by the award of the contract or by failure to award the contract. The Federal Circuit clarified that “even when an agency assesses price-ranked bidders together for technical compliance to select the bid most advantageous to the Government, . . . the least favored price-ranked bidder has standing only upon mounting a credible challenge to the technical acceptability of the better price-ranked bidders in line and in front of the protesting party.”

3. Peraton, Inc., B-416916.11 (Feb. 8, 2021) (published Mar. 16)

  • Following a series of protests and corrective action over two years, GAO dismissed as untimely the protester’s new allegation that the RFP no longer reflected the agency’s requirements.
  • Under GAO’s timeliness rules, protests challenging the terms of a solicitation must be filed prior to the proposal due date unless no due date has been established, in which case the protester is required to raise any issues within ten days of when it knew or should have known about the defects in the solicitation. An agency’s alleged failure to amend a solicitation based on changed requirements is a challenge to the terms of the solicitation.
  • Here, on October 30, the agency set a deadline for proposal submission. While Peraton protested prior to the due date, the company knew about the issues it raised between April 27 and October 30, when no closing time had been established for this procurement. GAO thus concluded Peraton’s protest was untimely.
  • In a rare admonishment, GAO also noted that this procurement had been subject to six protests by Peraton, the incumbent contractor that had continued performance throughout, and “permitting a protester to, in effect, hold solicitation challenges in reserve until it becomes clear that they are unlikely to prevail in a competition is antithetical to the idea that allegations of solicitation improprieties should be resolved as early as possible in the procurement process.”

When challenging the terms of a solicitation—including an agency’s failure to amend a solicitation based on changed requirements—the key question for timeliness is whether the date for proposal submissions (or resubmissions) has been set. In situations where no due date has been established, the protest must be filed within ten days of when the basis for protest was known. Failure to protest on time will result in a dismissal.

4. Mission 1st Group, Inc., B-419522 (Mar. 15, 2021)

  • GAO denied a protest challenging the company’s elimination from the competition based on a “go/no-go” evaluation factor for ISO 9001:2015 certification.
  • Offerors were required to show that they possessed a current/valid certificate, and also that they had possessed one during the period two years prior to the deadline for submitting proposals (October 5, 2020). The protester provided a current certificate, issued on December 27, 2019, but did not submit its prior certification. Based on missing the RFP requirement, the agency said “no-go.”
  • GAO found this result unobjectionable, because there was nothing ambiguous about the terms of the RFP, and had the agency requested the company submit additional documentation, that would have amounted to discussions.

A good reminder that contractors must pay close attention to RFP documentation requirements, particularly on “go/no-go” factors, as failure to provide the necessary information will likely result in elimination from the competition.

Claims Cases

1. Creative Mgmt. Servs., LLC v. United States, US Court of Appeals for the Federal Circuit, Case No. 2020-1449 (Feb. 26, 2021)

  • Creative held a GSA contract to host the annual GovEnergy conference. Under the contract, it was to maintain a separate bank account with all proceeds from the conference and from which it could receive payment. When GSA cancelled the conference in 2012, GSA requested by letter that Creative return the entire amount in this account. Creative responded that it was entitled to keep any remaining funds and submitted a termination for convenience settlement. Eventually the government issued a final decision with a settlement amount and sought return of any difference remaining in the account.
  • Creative failed to appeal this Contracting Officer’s Final Decision (COFD) within 12 months, and the Court of Federal Claims found its appeal time barred by the Contract Disputes Act.
  • On appeal, Creative argued that the COFD was not proper as it did not state a sum certain.
  • The Federal Circuit upheld COFC’s dismissal, holding that a COFD need only be based on a claim stating a sum certain. Even then, the “sum certain” only needs to be “readily ascertainable to the party against whom the claim was made.” The court held that the government’s prior demand letters for the balance of the account constituted a sum certain despite containing different amounts and the word “approximately.” The court held the amount was readily ascertainable to Creative by simply checking the balance in the account.

This case is a reminder to pay close attention when dealing with any government demand for payment or any letter that identifies itself as a Contracting Officer’s Final Decision. Time limits under the Contract Disputes Act are a trap for the unwary. Creative gets credit for making creative technical arguments to attempt to avoid them, but it couldn’t get around its failure to timely appeal the COFD.

Investigations and Enforcement

O'Fallon Building Co. Settles Fraud Claims, USAO-SDIL, Department of Justice

R&W Builders, Inc., agreed to pay $400,000 to resolve allegations that it fraudulently obtained construction contracts reserved for 8(a) businesses. R&W had graduated from the 8(a) program, then stood up a new joint venture and, upon award of a new contract, stepped forward and managed the contracts using its own employees to perform nearly all the work in violation of 8(a) rules.

The International Rescue Committee (IRC) Agrees to Pay $6.9 Million To Settle Allegations That It Performed Procurement Fraud by Engaging in Collusive Behavior and Misconduct on Programs Funded by the United States Agency for International Development, USAO-DC, Department of Justice

International Rescue Committee agreed to pay $6.9 million to settle False Claims Act allegations related to USAID funds for humanitarian assistance for displaced persons in Syria. The allegations involved collusion and kickbacks for goods purchased by USAID funds.


Government Contracts Legal Round-Up | 2021 Issue 3

Welcome to Jenner & Block’s Government Contracts Legal Round‑Up, a biweekly update on important government contracts developments. This update will offer brief summaries of key developments for government contracts legal, compliance, contracting, and business executives.

Defense Federal Acquisition Regulation Supplement (DFARS) Rules

1. Class Deviation 2021-O0004 - DFARS 252.225-7987 Requirements for Contractor Personnel Performing in the US Southern Command Area of Responsibility (Feb. 22, 2021)

  • The new deviation is to be used in lieu of the clause DFARS 252.225-7040, Contractor Personnel Supporting US Armed Forces Deployed Outside the United States, in solicitations and contracts that require performance in US Southern Command (USSOUTHCOM). 
  • Designed to implement the President’s March 13, 2020, “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,” this new class deviation adds the following requirements for contracts supporting USSOUTHCOM, as follows:
    • Recertification of medical fitness for medical suitability screening;
    • Requirements for Synchronized Predeployment and Operational Tracker data for contractor personnel support and tracking; and 
    • Personnel recovery requirements.

Contractors operating in the USSOUTHCOM area of responsibility should note this new class deviation, which rescinds and supersedes class deviation 2014-O0016. It includes new medical and tracking requirements in response to COVID-19 outbreak, in addition to continued operational requirements.

DoD Implements New Contracting Certification Program for DoD Acquisition Professionals

1. Restructuring of the Certification Program for the Contracting Functional Area (Feb. 18, 2021)

  • The Under Secretary of Defense for Acquisition and Sustainment (USD(A&S)), has released a plan for a new certification program for its workforce as part of its phased implementation of a Back-to-Basics (BtB) talent management framework.
  • A Contracting Certification Taskforce has designed a new Contracting Professional Certification Program for DoD’s Contracting Functional Area.
  • Effective October 1, 2021, DoD will be adopting a single level of certification with foundational training and an examination designed to verify competency.
  • The certification is based on the American National Standards Institute / National Contract Management Association (ANSI / NCMA ASD 1-2019) accredited Contract Management Standard.
  • A “significant undertaking,” the deployment of the new certification program and credentials is designed to enable “an improved talent development approach for a professional, capable, and mission-focused contracting workforce.”

Training DoD’s acquisition workforce has long been a key issue. This new Contracting Competency model is designed to comply with section 861 of the Fiscal Year 2020 National Defense Authorization Act (Public Law 116-92). That provision requires DoD contracting professionals to earn a professional certification based on standards developed by a third-party accredited program.

DoD Audits 

1. Audit of Contracts for DoD Information Technology Products and Services Procured by DoD Components in Response to the Coronavirus Disease–2019 Pandemic (DODIG-2021-050) (Feb. 12, 2021)

  • DoD’s Office of Inspector General concluded that DoD has complied with the CARES Act and other Federal and DoD requirements in procuring approximately $81.5 million in information technology products and services in response to the COVID-19 pandemic at reasonable prices and at a reduced risk of cybersecurity vulnerabilities.
  • Contractors should note that DoD will continue to focus on compliance with the CARES Act and cybersecurity to reduce waste, fraud, and abuse, and mitigate cyber vulnerabilities, each of which could potentially jeopardize the DoD’s missions, information, and assets.

2. Audit of Cybersecurity Requirements for Weapon Systems in the Operations and Support Phase of the Department of Defense Acquisition Life Cycle (DODIG-2021-051) (Feb. 10, 2021)

  • The objective of this audit was to determine whether DoD Components took action to update cybersecurity requirements for weapon systems in the Operations and Support (O&S) phase of the acquisition life cycle, based on publicly acknowledged or known cybersecurity threats and intelligence-based cybersecurity threats.
  • For the five DoD weapon systems assessed, DoD IG concluded that program officials followed the Risk Management Framework requirements and updated cybersecurity requirements to account for additional countermeasures implemented or needed to protect the weapon systems from the identified threats.
  • Contractors should be prepared for cybersecurity requirements to evolve during an O&S phase of a program if threats are identified.

Protest Cases

1. Coventry Healthcare Workers’ Compensation, Inc., B-417237.5 (Jan. 29, 2021)

  • GAO denied a protest asserting that a price-technical tradeoff was flawed because the agency failed to assign a monetary value to savings that purportedly would be realized from the protester’s technical solution.
  • GAO rejected the argument because nothing in the solicitation’s evaluation scheme contemplated that the agency would “monetize” any aspect of an offeror’s technical approach.

An agency is not required to take into account monetary savings that could be realized during performance unless the solicitation contemplates an analysis or consideration of the potential cost savings associated with an offeror’s technical approach.

2. FreeAlliance.com, LLC; Radus Software LLC/Radus CTA; Mobomo, LLC, B-419201.3 et al. (Jan. 19, 2021)

  • GAO sustained a protest where the evaluation record did not explain why the strengths and weaknesses assigned to each quotation merited a particular adjectival rating. Apart from a recitation of the definition for the adjectival ratings, the record did not explain the agency’s basis for assigning the ratings.
  • GAO was unable to conclude that the agency’s evaluation was administered on an even-handed basis because quotations with the same strengths were assigned different ratings without any explanation.

GAO will sustain a protest where the evaluation record is insufficient to conclude that differences in evaluation ratings assigned to quotations stemmed from differences between the quotations.

3. DynCorp International, LLC v. United States, No. 20-cv-1293 C (Feb. 16, 2021)

  • COFC dismissed a protest on the basis that it was “connected to the issuance of the task order” and did not fit into the jurisdictional exception for task orders that exceed the scope of the IDIQ contract.
  • The protest alleged that an Army task order was improperly awarded to CACI, Inc. because, following CACI’s conversion from Inc. to LLC, CACI, Inc. no longer held a GISS IDIQ contract.
  • Because DynCorp could not show that the statement of work described in the task order Performance Work Statement (PWS) was beyond the PWS for CACI’s GISS IDIQ contract, the scope exception did not apply.
  • In addition, the Court explained that the protest would have been denied on the merits, because the conversion from CACI, Inc. to CACI, LLC was completed in accordance with the FAR, with full government awareness, and did not affect the Army’s award to CACI in any way.

This decision highlights two important issues for contractors. First, protesting a task order at COFC is only available in the narrowest of circumstances, and GAO is generally a contractor’s only recourse. Second, when a contractor takes any action that affects the company’s corporate identity, it is vital to engage the federal customer and follow appropriate practices to ensure that any awards made are to the correct entity.

Claims Cases

1. Appeals of Harry Pepper and Associates, ASBCA Nos. 62038-42 

  • Harry Pepper and Associates encountered numerous changes while performing a $36.5 million contract to restore and reinforce a rocket booster support tower at NASA’s Stennis Space Center.
  • Pepper submitted 12 claims asserting a variety of changes, including to the contract performance method and welding procedures, and alleging defective design by the government.
  • In addition, Pepper argued in the alternative that the contract had been constructively changed by pervasive out-of-scope work, increased performance time, different equipment requirements, and increased labor demands.
  • The Armed Services Board of Contract Appeals (ASBCA) held there was no cardinal change because, despite a great number of alterations made in the work, the changes were not out of character with the work contemplated in the contract and were foreseeable by the contractor.

As contract changes begin to balloon on a contract, it is tempting to assume the cumulative effect will equal a cardinal change. But this case is a reminder that cardinal change is very difficult to demonstrate through voluminous changes to the work or significant increase in performance time. Courts and Boards are loath to find the government in breach and will seek to redress changes—no matter how voluminous—under the contact’s changes clause. Thus, as changes mount and performance time increases, it is especially important to engage in developing comprehensive requests for equitable adjustment to ensure you can fully capture cost and schedule impact.

2. Appeal of SkyQuest Aviation, LLC, ASBCA No. 62586 

  • SkyQuest received an Air Force contract to provide test pilots and flight engineers. During performance, the Air Force asserted that the pilots must have specific Air Force certification paperwork. SkyQuest responded to a cure notice disputing that the certification paperwork was required by the contract. The Air Force terminated SkyQuest for default.
  • SkyQuest filed a pro se complaint at the ASBCA seeking $429,000 in payment, revocation of the default termination, and adjustment of its CPAR rating.
  • SkyQuest did not obtain a contracting officer’s final decision on any of these items prior to its appeal, and the Air Force asserted the Board lacked jurisdiction to hear SkyQuest’s appeal.
  • The ASBCA held that, although it did not have CDA jurisdiction over the monetary claim or the CPAR adjustment, the termination for default was a government claim for which a contracting officer’s final decision was not necessary. In addition, because SkyQuest disputed the termination only based on compliance with the contract terms, it was not required to obtain a COFD to proceed.

Challenging government claims, including termination for default or claims for liquidated damages, implicates nuanced procedural questions. The Maropakis case required that affirmative defenses must be the subject of a COFD. SkyQuest Aviation reflects evolution of the Maropakis line of cases in recent years to clarify that submission to the contracting officer is not required where the defense is merely that the government has not met its burden of proof for an element of its claim.

3. Appeals of San Point Services, LLC, ASBCA Nos. 61819, 61820 

In another example of government contracting and surety industries colliding, the ASBCA quashed a government subpoena seeking information relating to a payment bond claim filed by a subcontractor. In a rather odd case, NASA sought to defend against an ASBCA claim by arguing that a separate payment bond case, filed by a subcontractor, contained admissions concerning fraud. NASA served a subpoena duces tecum on the surety, which successfully moved to quash based on undue burden. The Navy’s arguments that the contractor had been less than forthcoming were not compelling—in the eyes of the ASBCA—to justify placing the burden of a subpoena on the surety.

There are a number of ongoing lawsuits and/or investigations alleging that sureties owe the government certain duties to prevent fraud (see, e.g., U.S. ex rel. Scollick v. Narula), but here the ASBCA limited the government’s reach into the surety business while upholding the ASBCA’s periodically announced practice of not letting the government’s blanket assertion of fraud divest the Board of jurisdiction over an appeal.

Investigations and Enforcement

There have been a number of cases dealing with recovery of attorney’s fees in False Claims Act cases lately:

  • Beware the parallel proceeding. Where civil settlement funds were seized by the government investigating a separate criminal matter, the court denied motions by the plaintiff’s lawyers to release a third of those funds to satisfy the contingent fee earned by those attorneys on the civil case. U.S. ex rel. Glasser v. Boykin Contracting, Inc. (Civil Action No.: 3:14-cv-00224-JMC, D.S.C. Columbia Division)
  • And a court refused to permit double dipping by qui tam plaintiffs, shaming a relator for not removing from its fee requests amounts for unsuccessful claims and failing to account for prior recoveries. U.S. and State of New York ex re. Nichols v. Computer Sciences Corp. and City of New York (S.D.N.Y)

And the District Court for the Northern District of Illinois reminding qui tam plaintiffs that fraud must be pled with particularity, dismissing the complaint in U.S. ex rel. Noreen Lanahan v. County of Cook for failure to plead relevant details about alleged false statements and certifications, such as who made them, when they were made, and how much money was involved.

The Eleventh Circuit affirmed a district court’s rejection of a False Claims Act retaliation claim in Hickman v. Spirit of Athens, holding to the standard that an objectively reasonable belief that the individual was attempting to prevent a violation of the False Claims Act was necessary to support a retaliation claim. A sincere belief is not enough—that belief must be objectively reasonable.

Suspension / Debarment Summary

The World Bank released its debarment/sanctions results. The Bank debarred 267 companies and individuals, which was a substantial increase over prior years. The Bank also announced, that beginning in 2021, it would state the reason for debarments / sanctions in the future. By comparison, the US suspension / debarment system is less transparent, and does not release the causes for suspensions and debarments in the annual Interagency Suspension and Debarment Committee Report to Congress (which is a trailing publication, the most current edition published in early 2021 only covered Fiscal Year 2019 activities).


Key Developments in the FY 2021 National Defense Authorization Act

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By: Cynthia J. RobertsonDavid B. Robbins, and Noah B. Bleicher

Jenner & Block’s Government Contracts Practice is pleased to highlight key components of the William M. (Mac) Thornberry National Defense Authorization Act (NDAA) for Fiscal Year 2021 (FY 21). This annual legislation—filled with thousands of provisions—provides a roadmap of acquisition policies that will drive future regulatory changes for government contractors of all types, sizes, and customer bases. 

Perennial topics, including cybersecurity, foreign influence, domestic sourcing, data rights, Other Transaction Authority (OTA), commercial item contracting, ethics, and small business participation continue to dominate. Joining these subjects are newer topics, including expediting US Space Force acquisition.

We highlight some of the key developments and offer guidance on what contractors should anticipate in the coming months and years. We will be closely tracking the reports to Congress and anticipated regulatory changes. Should you have questions on these or any other NDAA developments, we welcome your outreach.

Cybersecurity / IT Development

Perhaps more than any other subject area, the NDAA contains a vast number of cybersecurity provisions. The legislation adopts numerous recommendations from the reauthorized Cyberspace Solarium Commission, which described the FY 21 NDAA as “the most comprehensive and forward-looking piece of national cybersecurity legislation in the nation’s history.” Key recommendations include developing cyber leadership roles reporting to the White House and better coordination of cybersecurity between federal, state, the private sector, and international stakeholders. Below we highlight other cyber provisions of interest.

Sec. 835: Balancing Security and Innovation in Software Development and Acquisition

  • Addresses concern regarding software developed or produced by adversary nations.
  • Directs DoD to create a “software pathway” to allow software to be delivered in a timely and secure manner.

Sec. 837: Safeguarding Defense-Sensitive United States Intellectual Property, Technology, and Other Data and Information

  • Requires DoD to establish, enforce, and track actions to protect defense-sensitive US intellectual property, including hardware and software, from acquisition by China.
  • Requires DoD to generate a list of critical national security technology and provide for mechanisms to restrict employees or former employees of the defense industrial base from working directly for companies owned or directed by China.

Section 1712: Modification of Requirements Relating to the Strategic Cybersecurity Program and the Evaluation of Cyber Vulnerability of Major Weapons Systems of the Department of Defense (DoD)

  • Requires DoD to develop a plan for each major weapon system to undergo an annual cyber-vulnerabilities assessment and to share lessons learned and best practices from the annual assessment of cyber resiliency of nuclear command and control system.

Section 1716: Subpoena Authority

  • Authorizes DHS’s Cybersecurity and Infrastructure Security Agency (CISA) to issue administrative subpoenas upon detection of security vulnerabilities and to notify public and private system owners.

Section 1722: Assessing Risk to National Security of Quantum Computing

  • Requires DoD to complete an assessment of the current and potential threats and risks posed by quantum computing technologies to critical national security systems, including an assessment of NIST standards.

Section 9005: Government Accountability Office (GAO) Study of Cybersecurity Insurance 

  • Requires GAO to study methods to improve the market for cybersecurity insurance.

Foreign Influence

Sec. 819: Modifications to Mitigating Risks Related to Foreign Ownership, Control, or Influence (FOCI) of Department of Defense Contractors and Subcontractors

  • Adjusts the analytical framework to mitigate FOCI by adding an additional proactive, government-driven assessment.
  • Requires reports and examinations on a “periodic basis” of covered contractors or subcontractors to assess compliance with FOCI reporting and mitigation obligations.

Domestic Sourcing of Strategic and Critical Materials

Sec. 848: Supply of Strategic and Critical Materials for the Department of Defense

  • Requires, to maximum extent practicable, acquisition of strategic and critical materials from US sources, then from sources within the national technology and industrial base, then other sources.

Sec. 849: Analyses of Certain Activities for Action to Address Sourcing and Industrial Capacity

  • Requires DoD to assess national security industry sectors, including microelectronics and pharmaceutical ingredients, to determine how to increase domestic industrial capacity.
  • Contractors can expect DoD to explore ways to entice critical technology industries to move production to the United States, with recommendations likely in future NDAAs.

Sec. 851: Report on Strategic and Critical Materials

  • Directs DoD to issue a report on supply chain vulnerabilities related to the acquisition of rare earth minerals and metals.

Sec. 852: Report on Aluminum Refining, Processing, and Manufacturing

  • Rejects a proposal for required domestic sourcing of aluminum.
  • Requires DoD to report to Congress on how to increase incentives for domestic aluminum production.

Data Rights 

Sec. 804: Implementation of Modular Open Systems Approaches

  • Increases emphasis on modular open systems for weapons systems, including for cybersecurity systems, to more easily enable competition for upgrades and sustainment.
  • Continues DoD’s interest in obtaining data rights that will facilitate the replacement, enhancement, and maintainence of parts over the life cycle of products and systems.

Space Force

Sec. 807: Space System Acquisition and the Adaptive Acquisition Framework

  • Describes, in detail, expedited acquisition processes and responsibilities affecting major defense acquisition programs for the United States Space Force.
  • Sets goal of quickly and effectively acquiring end-to-end space warfighting capabilities to address requirements of national defense strategy.

Other Transaction Authority

Sec. 831: Contract Authority for Development and Demonstration of Initial or Additional Prototype Units

  • Directs DoD to assess authorities designed to streamline the process for moving prototype technologies into production under the same contract as the technology is matured.
  • Requires DoD to issue a report on this topic by March 31, 2021, potentially enabling regulatory action later this year depending upon that report’s findings.

Sec. 833: Listing of Other Transaction Authority Consortia

  • Ensures greater scrutiny of OTAs issued by consortia.
  • Requires a report to Congress by December 1, 2021 that assesses:
    • The number and dollar value of other transaction awards through consortia;
    • The benefits and challenges of using consortia;
    • A comparison of DoD’s use of consortia compared to other Federal agencies; and
    • Any other matters the Comptroller General determines to be appropriate.

Contractor Business Systems 

Sec. 806: Definition of Material Weakness for Contractor Business Systems

  • Revises and defines terminology for the evaluation of contractor business systems to better align with generally accepted auditing standards.
  • “Significant deficiencies” will be deemed “material weaknesses,” and defined as one or more deficiencies that causes a reasonable possibility of material misstatement.
  • “Reasonable possibility” will mean “probable” or “more than remote but less than likely.”

Commercial Contracting

Sec. 816: Documentation Pertaining to Commercial Item Determinations

  • Ensures better documentation of prior commercial item determinations, which may be relied upon for future contracts.
  • Allows the contracting officer to request assistance in commercial determinations, including from DoD’s Commercial Items Group within DCMA, and requires the contracting officer to document determinations.

Ethics Provisions

Sec. 883: Prohibition on Awarding of Contracts to Contractors that Require Nondisclosure Agreements Relating to Waste, Fraud, or Abuse

  • Requires representations that nondisclosure agreements relating to fraud, waste, and abuse are not used.
  • Similar to FAR 52.203-19, prohibits award of contracts to contractors that require such agreements.

Sec. 885: Disclosure of Beneficial Owners in Database for Federal Agency Contract and Grant Officers

  • Requires disclosure of beneficial ownership of contractors and grant recipients.

Small Business 

Sec. 815: Prompt Payment of Contractors 

  • Strengthens DoD’s goal to pay small business contractors within 15 days of receipt of an invoice.
  • Intends to improve small businesses' ability to continue to do business in the federal marketplace, especially during economic downturns.

Sec. 862: Transfer of Verification of Small Business Concerns Owned and Controlled by Veterans or Service-Disabled Veterans to the Small Business Administration (SBA)

  • Transfers the function of certifying Service Disabled Veteran Owned Small Businesses (SDVOSBs) and Veteran Owned Small Businesses (VOSBs) from the Department of Veterans Affairs to the SBA.
  • Phases out self-certification of SDVOSBs.
  • Seeks to harmonize within 2 years the SDVOSB and VOSB contracting programs with other small business contracting programs administered by SBA.

Section 863: Employment Size Standard Requirements for Small Business Concerns

  • Extends from 12 months to 24 months the time period to which an agency must refer when categorizing a manufacturer as a small business based on its average employment.

Section 868: Past Performance Ratings of Certain Small Business Concerns

  • Requires contracting officers to consider a small business concern’s past performance in a joint venture or as a first-tier subcontractor when evaluating the small business concern’s offer for a prime contract.
  • Once implemented, a prime contractor will be required to provide a small business first tier subcontractor a “record of past performance” upon request by the small business.

Section 869: Extension of Participation in 8(a) Program

  • Allows small businesses participating in the section 8(a) business development program (on or before September 9, 2020) to extend their participation in the 8(a) program for an additional year.

Bid Protests

Section 886: Repeal of Pilot Program on Payment of Costs for Denied Government Accountability Office Bid Protests

  • Repeals the pilot program established in the FY 2018 NDAA that explored the effectiveness of requiring contractors with revenues in excess of $250 million to reimburse DoD for costs incurred in defending against bid protests denied by GAO.

Contract Types / Other Matters

Sec. 888: Revision to Requirement to Use Firm Fixed-Price Contracts for Foreign Military Sales (FMS)

  • Repeals default requirement for firm fixed-price contracts for FMS sales established by FY 2017 NDAA.

Sec. 890: Identification of Certain Contracts Relating to Construction or Maintenance of a Border Wall

  • Requires disclosure of any contracts (including task orders) more than $7 million relating to construction or maintenance of the US / Mexico border wall.

Section 891: Waivers of Certain Conditions for Progress Payments Under Certain Contracts During the COVID-19 National Emergency

  • To support increased cash flow, DoD may temporarily increase the progress payment rate for undefinitized contract actions during the COVID-19 national emergency.
  • Institutes conditions to the waiver pertaining to companies’ receipt of progress payments under contracts.
  • Directs a report by September 30, 2021 on how increasing rate of progress payments from 80 percent to 95 percent has benefitted subcontractors and suppliers.

Government Data Rights: Defense Contractors May Use Custom Markings to Signal Rights against Third Parties

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By: Steven R. Englund and Grant B. Schweikert

In the final days of 2020, the US Court of Appeals for the Federal Circuit decided a case providing defense contractors a tool to enhance protection of their technical data (such as specifications and drawings) and computer software when delivering them to the government by including markings asserting rights against third parties not acting under the government’s authority.

Sophisticated government contractors regularly look for strategies to protect the “secret sauce” of their technologies from disclosure to and use by competitors. The standard “data rights” clauses included in most government contracts provide various options for doing so, but those clauses also provide that the government will receive “unlimited rights” to certain types of technical data and computer software. However, even when the government receives unlimited rights (a very broad license), the contractor generally retains ownership of the underlying intellectual property rights and potentially the ability to enforce those rights against third parties who are not acting under color of the government’s license.

The issue before the Federal Circuit in Boeing Co. v. Secretary of the Air Force stemmed from Boeing’s use on technical data delivered to the government of a restrictive legend not authorized by the Defense FAR Supplement (DFARS) to restrict third party use of technical data in which the government had unlimited rights. Boeing Co. v. Secretary of the Air Force, No. 2019-2147 (Fed. Cir. Dec. 21, 2020). The court held that use of such a legend is consistent with the standard DFARS data rights clause, so long as the legend does not restrict the rights of the government.

As background, DFARS 227.7103 and DFARS 227.7203 establish five types of government licenses for noncommercial technical data and computer software: (1) unlimited rights; (2) government purpose rights; (3) limited rights (for technical data); (4) restricted rights (for computer software); and (5) specifically negotiated license rights. The parallel clauses at DFARS 252.227-7013 and DFARS 252.227-7014 are generally incorporated into defense contracts to address the contractor’s and the government’s respective rights in noncommercial technical data and computer software. Paragraph (f) of these clauses contains specific instructions for contractors to mark qualifying technical data and computer software to provide the government less than unlimited rights. Those instructions include specific markings corresponding to each of the license types other than unlimited rights. Other provisions address removal and correction of nonconforming markings.

When Boeing was required to deliver technical data to the government with unlimited rights, it had a longstanding practice of marking that data with what it called a “Non-U.S. Government Notice” claiming the data as proprietary and advising that non-governmental entities may use and disclose the data only as authorized by Boeing or the government. Eventually, a contracting officer rejected technical data marked with that legend, finding it nonconforming because it is not one of the legends specifically authorized by DFARS 252.227-7013.

Boeing’s argument on appeal to the Armed Services Board of Contract Appeals, and later to the Federal Circuit, was based on the specific language of DFARS 252.227-7013(f), which states that the authorized legends are to be used when a contractor wishes to assert “restrictions on the Government’s rights to use, modify, reproduce, release, perform, display, or disclose technical data” (emphasis added). Specifically, Boeing argued that because its legend did not restrict the Government’s rights, but rather the rights of third parties, DFARS 252.227-7013(f) did not provide a basis for the government to object to its marking. 

While the Board upheld the contracting officer’s decision, the Federal Circuit agreed with Boeing, finding that “the plain language of Subsection 7013(f) demonstrates that it applies only in situations when a contractor seeks to assert restrictions on the government’s rights.” The court noted that this conclusion had “the added benefit” of allowing Boeing “to notify the public of its ownership” of the relevant technical data. Although the Court agreed with Boeing’s legal argument concerning the interpretation of DFARS 252.227-7013(f), it declined to opine on whether the specific text of Boeing’s legend actually did restrict the Government’s rights. That question, the Court decided, was a question of fact that must be determined by the Board on remand.

While the court’s decision concerned interpretation of the technical data provisions in DFARS 252.227-7013(f), it would seem to apply with equal force to the parallel provisions for computer software in DFARS 252.227-7014(f).

In view of the decision, it makes sense for defense contractors to consider using a restrictive legend to notify third parties of their claims to ownership when delivering technical data or computer software to the government with unlimited rights. While such a legend may not create any substantive rights against third parties, it would at least serve as a reminder to competitors that certain uses of the data may implicate enforceable intellectual property rights and have an in terrorem effect.  

Jenner & Block lawyers stand ready to assist contractors in protecting their intellectual property rights while complying with this complex regulatory regime.