A quick reminder that Fox Rothschild (Virtual) Federal Contract Symposium starts this Monday (October 5).

Please Click Here to Register for the Symposium.

After careful consideration, we elected hold the event virtually.  However, using the innovative Remo platform, you can still expect an interactive and engaging two days of remote targeted sessions on the most important legal topics facing the industry.

I’ll be presenting on Recent Trends in GAO & COFC Bid Protests.  In addition, my colleagues will present on topics including:

• Federal Affirmative Action Plans & Equal Employment Opportunity Requirements
• Federal Contract Ethics & Compliance Program Requirements
• Agency Counsel’s Perspective: How to Communicate Effectively & Resolve Disputes With Government Customers
• Effective Management, Litigation & Resolution of Complex Claims
• Internal Investigations & How to Avoid False Claims Act Violations; and
• Navigating the DFARS & CMMC Cybersecurity Requirements

We’re also pleased to present the Keynote Presentation by Patrick J. Fitzgerald (Director at Baker Tilly and former Director of the Defense Contract Audit Agency at the Department of Defense).  The Full Symposium Agenda is available  here.

CLE credit is available for certain jurisdictions and the first 100 registrants will enjoy  complimentary lunch on both days via delivery service.

If you have questions or want to receive additional information and updates, please contact Stacy Flynn at sflynn@foxrothschild.com or 215.299.2035.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

I am excited to host this upcoming Webinar on Protecting the Reputation of Government Contractors by Challenging Erroneous CPARS Evaluations.

The Webinar goes Live on Wednesday, August 19 at Noon Eastern.  If you are unable to attend, please contact me directly :  nsolosky@foxrothschild.com or 202-696-1460.

Click Here To Register Now

Webinar Preview

A negative performance evaluation from a Federal agency, or worse a recommendation against future performance, can make it very difficult for a government contractor to win new work.

But all is not lost.

Contractors that have been unjustly injured by an erroneous Contractor Performance Assessment Reporting System (CPARS) evaluation have options.  Venues such as the U.S. Court of Federal Claims and Boards of Contract Appeals are increasingly entertaining claims filed by contractors over inaccurate CPARS evaluations – including claims for monetary damages.

In this webinar, we will cover:

• Practical strategies for contractors to deal with unfair and harmful CPARS performance evaluations before they become final.

• A review of the claim and litigation process in the event that early intervention is unsuccessful.

• New and innovative strategies emerging for performance evaluation disputes – including how contractors can seek to recover monetary damages associated with negative performance evaluations.

Register for the Webinar Here

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

The Small Business Administration (SBA) finally put an end to self-certifications for the Woman-Owned Small Business Program (WOSB).  Starting now and continuing through October 15, 2020, federal contractors that want to perform future WOSB set-aside contracts must complete the certification process at www.certify.sba.gov.

Why Require Formal Certification?

The WOSB Program aims to award at least five percent of all federal contracting dollars to woman-owned small businesses each year (including exclusive set-aside contracts in under-represented industries).  But recent studies show that those awards too often go to businesses that do not actually qualify as true WOSBs under the law (despite having self-certified as  both woman-owned and small).

To address this issue, SBA is adding additional oversight through a mandatory certification process.

SBA says that:

These new regulations make it easier for qualified small businesses to participate in the WOSB Federal Contracting Program by improving the customer experience. At the same time, the SBA is strengthening oversight and maintaining the integrity of the certification process.

SBA will begin issuing decisions on certification applications on October 15.   In the meantime, WOSB contractors  can continue to rely on self-certifications.

Moving forward, the SBA will also continue allow  WOSB certification through approved third-party vendors.

Important Contractor Considerations

It is important to remember that formal certification with the SBA is the last step for WOSBs – not the first.

Contractors must consider what it means to own and control a business in the eyes of the SBA.

You should also consider what it means to be small, and whether your business can take advantage of the Economically Disadvantaged WOSB Program (EDWOSB).

SBA’s regulations often present a moving target.  Regular small business size-status checkups is the best way to stay in the game and avoid perilous claims of size status fraud.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Please join my colleagues Reggie Jones and Diana McGraw tomorrow for an upcoming webinar covering the CARES Act, the Paycheck Protection Program, and the heightened risk of Federal enforcement:  Federal Relief for COVID-19: Protecting Against the Increased Risk of False Claims.

The webinar draws on the lessons of the Great Recession concerning the increased scrutiny that falls on businesses that accept federal relief funds.  During the program, Reggie and Diana will discuss the history of the civil and criminal False Claims Acts (the primary tool for government enforcement actions).  The program also offers practical advice for firms that accepted relief funds concerning how to recognize and mitigate risk through strong business and ethics compliance programs.

We will broadcast the webinar live tomorrow July 14 at Noon Eastern (9:00 a.m. Pacific).  Please click here to register.

If you are unable to attend the webinar live, please contact me for additional information.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Contractors filed 2,071 bid protests at GAO  in 2019– the lowest number in five years.

One possible cause for the decline is the Department of Defense’s enhanced debriefing procedures.  Enhanced debriefings mean that contractors have greater access to information before the GAO’s short-fuse filing deadline and can make better-informed decisions regarding protests.

Importantly, the enhanced procedures also permit contractors to ask targeted questions regarding the agency’s source selection decision.

By understanding how to take advantage of debriefings and ask good questions, contractors can maximize the effectiveness of the bid protest process and increase the odds of a favorable outcome.

What Are Enhanced Debriefing Procedures?

DoD implemented mandatory enhanced debriefing procedures about two years ago.  The purpose is to provide unsuccessful offerors “an opportunity to submit additional questions related to the debriefing within two business days after receiving the debriefing.”

Agencies must “respond in writing” within five business days after the receipt of the contractor’s questions.

While these requirements may seem modest, the enhanced procedure allow for a more meaningful process and an opportunity for the contractor to better understand the agency’s decision.

By comparison, civilian agency debriefings (which have not implemented enhanced procedures) are much more one sided.  A contractor that does not receive a helpful debriefing is left in the unenviable position of potentially investing resources into a bid protest without a complete understanding of the agency’s position regarding the contractor’s proposal.

How To Ask Better Questions and Use Enhanced Debriefings To Your Advantage

A contractor’s goal for every debriefing should be to gather as much information as possible from the contracting officer.  The more the contracting officer speaks (or writes), the more the he or she is likely to say something that may be helpful in a possible protest of the contract award.

With that in mind, the Q&A element of enhanced debriefings is critical.  Consider a mix of open-ended questions and questions more targeted to the area(s) of concern.

Contractors should also consider the source of the debriefing.  While no one is happy to lose out on a contract, try to avoid questions that overtly telegraph a pending bid protest.  The threat of litigation could lead to receiving less useful information from the debrief.

Instead, for every debriefing, focus on the goal of improving for the next bid or proposal.  This approach will likely enable the contractor obtain more information during the debriefing than if the contracting officer believes the debriefing is a precursor to a protest.

However, if the contracting officer provides information during the debriefing indicating a procurement error, the contractor can run with the information by filing a protest.

The Effect on Bid Protest Timing

The short-fuse for GAO bid protests makes every day during the debriefing process critical.

DoD’s enhanced debriefing procedures help here, too.  A recent decision from the Court of Federal Claims holds that the Q&A period defines the debriefing period and, by extension, the deadline for obtaining a mandatory stay of contract performance.

In the decision, the Court held that the “debriefing date” is that last day available to the contractor to submit questions (even if the contractor elects not to do so).  In other words, the debriefing period continues while the contractor thinks it over.

Once the debriefing period ends, the contractor must file the protest within the usual five days to obtain the stay.

Practice Tip:  While this decision is helpful in terms of defining the time to file a protest, contractors must always remain vigilant on bid protest deadlines.   Key words and phrases from the agency (like, “this concludes the debriefing”) should always play a role in decisions on the time for filing.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

COVID-19 or the Coronavirus is having an unprecedented and, frankly, previously unimaginable global impact.  Please click here to visit Fox’s Coronavirus Resource Center for links to free webinars and articles offering practical guidance to companies of all sizes on a variety of legal issues.

Government contractors are already feeling the effects of the pandemic.  Breakdowns in the global supply chain, labor shortages, and regional lock downs are already delaying federal projects across the country and around the world.  These are extraordinary times – but contractors must still look to standard remedy granting FAR clauses for relief.

In Part 1 and Part 2 of this series, I discussed requests for equitable adjustments (REAs) and claims for time and extra costs on federal projects.  Now, in Part 3, I’ll discuss the actions that government agencies can/will take on projects – and how those actions could impact the remedies available to contractors.

The critical thing for federal contractors to understand (in all circumstances) is that there are no automatic FAR remedies.  While the government generally will not hold a contractor liable for delays beyond its control, the contractor must take affirmative and diligent steps to protect its rights and seek additional time and costs.

OMB and DOD Guidance

On March 20, 2020, the U.S. Office of Management and Budget (OMB) issued a memorandum to executive agencies regarding anticipated contract performance challenges due to COVID-19.  The OMB memo encourages agency flexibility and a case-by-case approach for REAs seeking additional time and/or costs due to the pandemic.

Shortly thereafter, the Department of Defense (DOD) published additional guidelines for its agencies in dealing with federal contractors affected by COVID-19.

The DOD memo addresses excusable delays under certain FAR remedy granting clauses – including those addressed in Parts 1 and 2 of this series.  The memo also authorizes Contracting Officers to consider adjustments to contract price (as presented through contractor REAs).  The DOD points to Section 3610 of the CARES Act and cites to discretionary agency authority to use available funds to modify contracts to reimburse contractors for workers’ lost time up to September 30, 2020 – if the contractor provides leave to its employees or subcontractors “to protect the life and safety of Government and contractor personnel.”  The specific example used in the memo is instances “where contractor employees could not access work sites or telework, but actions were needed to keep such employees in a ready state.”

The guidance from OMB and DOD is directed to government agencies – but federal contractors should listen, too.  There are remedies available, but contractors must act with speed and efficiency in seeking relief.

My advice:  Assess the status of on-going projects now and do not delay in providing notice to the Contracting Officer and seeking appropriate relief.

Stop Work / Suspension of Work / Changes

While the OMB and DOD memos contemplate interrupted (but still on-going) performance, agencies have the authority to take additional actions in the best interests of the government.  For projects where the pandemic makes performance impossible (or at least impracticable), I expect to see a rise in Stop Work Orders (FAR 52.242-15) and Suspensions of Work (FAR 52.242-14).

Please see Part 2 of this series, where I discuss how contractors should approach REAs under these remedy granting FAR clauses.

In addition, the DOD memo discussed above specifically refers to the Changes clause (FAR 52.243-1 and 52.243-2) as applying where “the contracting officer directs changes in the terms of contract performance, which may include recognition of COVID-19 impacts on performance.”

The Changes clause offers a traditional remedy for contractors to seek additional time and costs.  DOD’s guidance therefore offers an interesting insight into the government’s approach to this crisis.  It should encourage contractors to take affirmative and diligent steps towards requesting excess costs if/when they arise.

Again, there are no automatic remedies.  Contractors must ask for the relief and follow the applicable FAR notice and documentation requirements.

Pending and Future Contracts

The primary focus of this series has been practical advice for contractors facing delays on federal projects due to the current situation – but contractors should also be thinking about pending and future government projects.

If your business submitted a final proposal and is waiting on a contract award decision, now is the time to consider the potential impact of COVID-19 on future performance.  Is it possible to modify or even withdraw a proposal?  It likely depends on the particular contract and phase of the procurement.  At a minimum, I recommend communicating with agencies about anticipated issues now – it may be deemed too late to wait until after award.

Contractors should also think strategically about the COVID-19 pandemic when bidding new work.  The government requires contractors to build all known contingencies that might affect performance into bids.  COVID-19 is now undeniably a known contingency and the government will not assume responsibility for delays or shortages that contractors should have reasonably anticipated in advance.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

COVID-19 or the Coronavirus is having an unprecedented and, frankly, previously unimaginable global impact.  Please click here to visit Fox’s Coronavirus Resource Center for links to free webinars and articles offering practical guidance to companies of all sizes on a variety of legal issues.

Government contractors are already feeling the effects of the pandemic.  Breakdowns in the global supply chain, labor shortages, and regional lock downs are already delaying federal projects across the country and around the world.  These are extraordinary times – but contractors must still look to standard remedy granting FAR clauses for relief.

In Part 1 of this series, I discussed requests/claims for excusable delays on federal projects.  This remedy – most commonly invoked under FAR 52.249-14 (Excusable Delays) – amounts to extending contract completion deadlines to avoid termination.

But what about federal contractors that incur additional costs due to COVID-19 delays?

In this Part 2, I discuss practical strategies for contractors to recoup those extra costs (in addition to time extensions) from the government through requests for equitable adjustments (REAs) or certified claims.  Also, check back tomorrow for Part 3 of the series discussing possible ways the government will approach COVID-19 on individual projects (and how it affects contractor performance requirements).

The critical thing for federal contractors to understand (in all circumstances) is that there are no automatic FAR remedies.  While the government generally will not hold a contractor liable for delays beyond its control, the contractor must take affirmative and diligent steps to protect its rights and seek additional costs.

Compensable vs. Non-Compensable Time Extensions

Given the widespread nature of COVID-19 and corresponding impact on many contractors/projects, I think it is likely the government will seek to treat COVID-19 delays as “no cost” impacts by granting non-compensable time extensions.  In other words, the government would extend contract completion dates and not hold delays against contractors (for purpose of things like liquidated damages and performance evaluations).

But that does not necessarily close the door on REAs and claims that seek to recover additional costs. 

The FAR includes a number of remedy granting clauses that permit the recovery of extra performance costs.  For example, FAR 52.249-8 (Default – Fixed-Price Supply and Service) states that “the Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contract.”  Such causes include both epidemics and quarantine restrictions.

The key for federal contractors seeking to recover costs arising out of COVID-19 delays is definitive proof that the virus caused the delays and/or excess costs.  Check out the Best Practices included in Part 1 of this series for advice on dealing with the government and properly supporting claims – including providing timely notice, supporting documentation, good faith efforts.

Stop Work and Suspension Orders

As the pandemic stretches on, it is likely that contractors on certain projects will see Stop Work Orders (FAR 52.242-15) and Suspensions of Work (FAR 52.242-14).  These FAR clauses permit the Contracting Officer to temporarily stop or suspend performance in the best interests of the government.

Once a contractor receives a stop/suspend work order, it must take prompt and reasonable steps to mitigate any additional costs incurred on the project.  When a contractor incurs extra performance costs (in spite of these efforts), it is prudent to submit the costs to the government through an REA or claim.

In doing so, the contractor should pay special attention to the type of order issued by the Contracting Officer.  Each clause requires particular circumstances to recover costs – all REAs/claims must adhere to those requirements to merit recovery.

Changes to the Work

Contractors may also be able to look to the FAR’s Changes clause (52.243-1) to recover excess performance costs due to COVID-19.  It is possible (and perhaps likely on certain projects) that Contracting Officers will implement changes to scopes of work, schedules, project access, and completion milestones (among many other things).

All of these circumstances could form the basis for a claim of actual or constructive contract changes under FAR 52.243-1).

Contractors must assert claims for extra time and costs within thirty (30) days of the change.  It is therefore imperative that contractors stay on top of project correspondence, communicate with the government, and provide prompt notice as required.

COVID-19 or the Coronavirus is having an unprecedented and, frankly, previously unimaginable global impact.  Please click here to visit Fox’s Coronavirus Resource Center for links to free webinars and articles offering practical guidance to companies of all sizes on a variety of legal issues.

Government contractors are already feeling the effects of the pandemic.  Breakdowns in the global supply chain, labor shortages, and regional lock downs are already delaying federal projects across the country and around the world.  These are extraordinary times – but contractors must still look to standard remedy granting FAR clauses for relief.

In general, I expect the government to treat most delays caused by COVID-19 as “excusable” by granting non-compensable time extensions.  In Part 1 of this series, I will identify best practices for contractors to request/claim time extensions on federal projects delays due to COVID-19.

Part 2 of the series will cover opportunities for contractors to recover costs associated with delays (“compensable” time extensions).  Part 3 will look at the variety of ways that the government could approach the pandemic (and how those choices will affect contractors).

The critical thing for federal contractors to understand (in all circumstances) is that there are no automatic FAR remedies.  While the government generally will not hold a contractor liable for delays beyond its control, the contractor must take affirmative and diligent steps to protect its rights and request time extensions.

The Contractor’s Duty to Proceed

Government contractors face a duty to proceed with contract performance (absent an order from the government suspending, stopping, or terminating the work).  In other words, unless the government issues an order to the contrary, contractors must complete the work on-time and on-budget.

Despite this duty, there are remedies and protections available in the FAR for delays arising out of causes outside the contractor’s control (for example, a global pandemic).

The FAR’s Force Majeure Clause

In the commercial context, delays due to Acts of God are addressed in Force Majeure provisions that excuse performance under extreme circumstances.  For government contractors, there is no one FAR clause that provides such broad protections.  Instead, the applicable remedy granting clause depends on the circumstances and contract type.

The FAR clause that comes closest to a traditional commercial Force Majeure clause is FAR 52.249-14 (Excusable Delays).  The clause appears in many types of federal contracts, including cost-reimbursement, time-and-material, and labor-hour contracts.  Contractors that provide supplies, services (including construction services), and research & development to the government should check their contracts to see if this clause is incorporated.

FAR 52.249-14 provides that – for causes outside the contractor’s control – including specifically epidemics and quarantine restrictions – the government will not hold the contractor “in default because of any failure to perform.”  Generally speaking, the clause enables contractors to claim only an excusable delay (that is, the clause entitles the contractor to a time extension, not costs associated with the delay).  The remedy amounts to extending contract completion deadlines to avoid termination.

Other Remedy Granting FAR Clauses

Even if FAR 52.249-14 does not appear in your contract, other FAR clauses provide similar relief.

For example, FAR 52.249-10 (Default Fixed-Price Construction) provides for excusable delays related to epidemics and quarantine restrictions, provided that the contractor notifies the Contracting Officer in writing of “the causes of delay” within ten (10) days.

As discussed below, the best practice for obtaining any kind of relief is to provide timely notice to the government.  A contractor should provide notice as soon as it knows of the delay – and also take care to check the applicable remedy granting clause for additional notice/documentation requirements.

Best Practices

Contractors that experience delays on federal projects due to COVID-19 should rely on the following best practices to request/claim excusable time extensions and avoid government terminations:

·       Provide Timely Notice.  All remedy granting FAR provisions require the contractor to provide notice to the government.  Given the current climate, do not delay.  Put the Contracting Officer on notice as soon as delays arise and continue to communicate thereafter.

·       Project Documentation.  Contractors need to prove project delays – not just claim them.  While keeping good records is always a best practice for federal contractors, it will prove even more important in the event of a dispute with the government over project delays.

·       Keep Performing When Possible.  Even if COVID-19 delays contract performance, that does not allow the contractor to stop trying.  Absent a suspension of work or stop work order, contractors should continue to perform (again, while simultaneously providing notice of all delays).

·       Exercise Good Faith.  Good Faith is another best practice that should be used all the time – not just during extreme circumstances.  Contractors that go the extra mile almost always fare better on government contracts in the end.  The same will undoubtedly turn out to be true during a pandemic.

Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group.  You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.

Douglas P. Hibshman

Federal contractors have been, and continue to be impacted by COVID-19 outbreak and its consequences such as suspensions of work, performance delays, extra costs, contract terminations and the like. To make matters more challenging, the government has failed to issue comprehensive guidance to contractors on how to systematically and consistently deal with the coronavirus’ impacts on federal contracts. Therefore, contractors are left to rely upon their contract terms and the Federal Acquisition Regulation (FAR) provisions incorporated into their contracts to interpret those provisions on a contract-by-contract basis to determine what relief is available for coronavirus impacts.

The Federal Contractors’ Guide to Coronavirus Contract Impacts provides an overview of the relevant FAR provisions that may apply to coronavirus impacts, the actions the government may take on federal contracts due to the impacts, the rights contractors have under the applicable FAR provisions, and the “best practices” that contractors should implement to provide the best opportunity to obtain time extensions and attempt to recover extra costs caused by coronavirus impacts.

Click here to read the guide.

In the best interest of the health and safety of our attendees, we have decided to postpone the Federal Contracts Symposium. It is our intention to reschedule the Symposium as soon as we can responsibly do so. Watch this blog for updates.

We wish everyone well.

The attorneys of Fox’s Federal Government Contracts & Procurement Practice.