President Biden recently issued Executive Order No. 14042 requiring covered federal contractors ensure that their employees are fully vaccinated against COVID‑19 unless an employee otherwise requests, and receives an accommodation for sincerely held religious beliefs or a medical condition that justify them not being vaccinated.

Substantive guidance has been issued by the federal government to implement the provisions of the Executive Order.  Specifically, on September 24, 2021, the federal Safer Federal Workforce Task Force issued guidance to implement the Executive Order and continues to update its guidance regularly on these processes.  On September 30, 2021, the FAR Council issued a memorandum allowing federal agencies to issue class deviations to implement the Executive Order and the pending FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, to memorialize the vaccine mandate.  Further on September 30 and October 1, 2021, the General Services Administration (GSA) and the Department of Defense (DoD) issued class deviations formally implementing the vaccine mandate.

In general, there are two primary business risks associated with the new federal vaccine mandate:  (1) the increased cost or extended performance time associated with complying with the mandate; and (2) potential future civil False Claims Act liability in the event that contractors and subcontractors have not made good faith efforts to comply.  The first risk is currently affecting contractor implementation of the mandate as we speak, and the second risk under the False Claims Act will surely follow in the future.

Reserving Contractor Rights to Additional Cost and/or Time to Implement the Mandate

The stated objective of the federal vaccine mandate is to “promote economy and efficiency in federal contracting” through decreased worker absences and hence reduced labor costs, among Federal contractors and subcontractors.  However, the mandate will surely cause additional cost and time impacts on many federal contracts as the mandate will adversely affect the ability of contractors to perform as planned before the mandate was implemented due contractor (or subcontractor) employees failing to comply with the mandate, employees quitting as a result of the mandate, employees seeking accommodations that make them less effective at performing their duties, and/or contractors and subcontractors being unable to hire employees in an ever tighter job market.  All of these outcomes will increase administrative and overhead costs for contractors as it is yet one more federal requirement for contractors and subcontractors to have to deal with to ensure compliance with applicable regulations.  In sum, the mere existence of the mandate will increase costs and the likelihood of performance delay for contractors, subcontractors, and suppliers on federal projects across the board.

The class deviations issued by GSA and DoD require that the respective agencies issue bilateral modifications (requiring the consent of both the prime contractor and the agency) to incorporate the vaccine mandate (through the incorporation of FAR 52.223-99 or DFARS 252.223-7999 into the prime contract).  Therefore, contractors must be wary of signing any modification issued by the government that does not address the contractor’s ability to recover additional costs or time as a result of the implementation of the mandate.  Contractors that do sign modifications run the risk of waiving their potential rights to increased costs or time, if any, and must either price the modification as a change to the contract or reserve their right to submit for increased costs and time in the future before signing any modification.

 

Future False Claims Act Liability for Failing to Comply with the Mandate

While neither the Executive Order nor the Taskforce Guidance contain any direct penalty for failing to comply with the federal vaccine mandate, experience has taught us that federal contractors are required to certify compliance with all contract requirements, including the vaccine mandate, every time they submit an application for payment.  Therefore, it is simply a matter of time before qui tam (False Claims Act) whistleblowers, the various Offices of Inspector General, or the U.S. Department of Justice begin alleging that contractors have violated the False Claims Act by submitting and certifying to payment applications when they clearly knew they were not compliant with the vaccine mandate and failed to make good faith efforts to comply.  While the Taskforce’s response to Frequently Asked Questions makes clear that prime contractors may reasonably assume that their subcontractors are in compliance, prime contractors are obligated to exercise due diligence with their subcontractors to ensure compliance and cannot do so if they have credible evidence to the contrary.  “Credible evidence” is a term pulled straight out of the FAR’s ethics and compliance contract clause, FAR 52.203-13 Contractor Code of Business Ethics and Conduct and requires a contractor to make a mandatory disclosure of a violation of, among other things, the civil False Claims Act.

Therefore, federal contractors subject to the federal vaccine mandate must take the mandate seriously, exercise good faith efforts to comply, and think carefully before signing any modification related to the mandate to avoid giving away their rights to additional cost and time resulting from the implementation of the mandate.

A final friendly reminder to register for Fox’s 2021 Federal Contracts Symposium on October 25 and 26 (next week!)

After careful consideration, we’ve made the decision to switch to a fully virtual format on an interactive platform.  While we hoped to see everyone in person, the Remo Tables platform offers plenty of opportunities for questions and even networking.

Please use this link to register

This year, I’ll be teaching a session with Diana McGraw addressing how to navigate terminations on federal projects.  We’ll cover key considerations for contractors dealing with the threat of termination for default under the FAR.  We’ll also tackle subcontract drafting and subcontractor management in the context of a termination scenario.

The session will feature a virtual lunch Judges’ Panel moderated by Federal Government Contracts Practice Chair Reggie Jones and featuring Judge Patricia E. Campbell-Smith (United States Court of Federal Claims), Judge Jeri Somers (former Chair of the Civilian Board of Contract Appeals), and Judge Carol Park-Conroy (JAMS Mediator, Arbitrator and Neutral Case Evaluator).

Based on popular demand, we’ve also added a session addressing what contractors need to know about the new Federal Vaccine Mandate.

Additional topics will include

  • Bid Protests
  • Effective Allocation of Damages for Federal Contract Claims
  • False Claims Act Internal Investigations
  • Expanding Your Business Through Mergers and Acquisitions
  • Suspension and Debarment; and
  • The Government’s Rights to Your Intellectual Property

You can view the full agenda here.

We hope to see you virtually on the 25th (and in person next year).  Please feel free to contact me directly with any questions about the event.

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 Nick Solosky and Diana McGraw for a free webinar focused on successful partnering for federal contracting opportunities.  We are excited to be working with the Washington Building Congress on this presentation.

The webinar will be held on Thursday, June 10 at 11:00 Eastern.  Please click here to Register.

The webinar will focus on helping contractors adapt to market shifts experienced in 2020 and focus on opportunities available in the federal marketplace — for 2021 and beyond.

A major point of discussion will be the Small Business Administration’s October 2020 Final Rule, which provides much needed clarity for government contractors (both large and small) on issues including:

  • Multiple Award Contracts and Requirements for Certification and Recertification
  • Affiliation Rules and Size Determinations
  • Joint Venture Requirements
  •  SBA’s All Small Mentor-Protégé Program

If you are interested in exploring federal work — or if the government is already one of your clients — understanding this Rule is the key to unlocking new opportunities.  Even in  uncertain times like these, the government continues to spend money..  For example, President Biden’s American Jobs Plan alone includes a proposed multi-billion dollar investment in transportation infrastructure over the next 10 years. Opportunities abound for those ready to take action.

We hope that you are able to join us for the webinar.  If not, please feel free to contact us directly for a copy of the presentation materials, or to discuss specific questions.

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.

Join us tomorrow, December 8 at 12:00 Eastern for Part III of our Web Series covering the Small Business Administration’s Final Rule: Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments.

To Register, please Click Here.

In this session, we’ll cover changes to the SBA’s rules and regulations governing Affiliation.

It should go without saying that every small business needs to stay current regarding the rules of affiliation.  Affiliation with a large business renders small businesses ineligible for critical set-aside contracts.  Simple mistakes, misunderstandings, or even ignorance of the law are no excuse – it is up to each small business to stay informed.

To help keep your business ahead of the curve, we’ll examine updates regarding economic dependence, the newly organized concern rule, and the ostensible subcontractor doctrine.  As always, we’ll also break down the real world application of the changes.

In addition to affiliation, this session will examine other rule changes that small businesses need to understand.  Most notably, the Final Rule adds a requirement that procuring agencies must consider the “capabilities, past performance, and experience” of the first-tier subcontractors if the small business prime contractor cannot independently demonstrate its own capabilities and past performance needed for contract award.  We’ll discuss what small businesses must do to best take advantage of this change.

If you missed out on Parts I and II of the Web Series – Good News!  The materials are now available online.

You can check out Part I on covering Multiple Award Contracts here.

Part II on Joint Ventures and the All Small Mentor-Protégé Program is available here.

We designed this Web Series to provide Federal contractors and industry professionals a meaningful and practical crash course in what the Final Rule means and how it will impact business operations.  Each one hour and fifteen minute session will take place through the interactive Remo webhosting platform and consist of learning and networking opportunities, broken down in the following schedule:

15 minute Networking Session

30 minute SBA Final Rule Topic Presentation

30 minute Follow-Up Networking

We look forward to seeing you there.

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.

Fox is excited to announce a new four-part Web Series covering the Small Business Administration’s Final Rule: Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments.  The Final Rule is more than 50 pages – all packed with significant new rules and changes that will affect how both large and small businesses do work for the Federal Government.

Join Nick Solosky and Diana McGraw next Tuesday November 17, 2020 at Noon EasternClick here to Register today (the first 100 to register get lunch on us).

The first session will cover the Final Rule’s impact on Multiple Award Contracts and Requirements for Certification and RecertificationShawn Ralston (Small Business Liaison Officer, AECOM) will join us for this session and offer his insights on the practical application of the Final Rule.

In future weekly sessions we will also cover:

  • Changes to the 8(a) Program;
  • Updates to the Small Business Regulations and Affiliation Rules Generally; and
  • Joint Ventures and the All Small Mentor-Protégé Program Limitations and Requirements

We designed this Web Series to provide Federal contractors and industry professionals a meaningful and practical crash course in what the Final Rule means and how it will impact business operations.  Each week, we will also invite industry guest speakers to offer valuable advice and insights.

Each one hour and fifteen minute session will take place through the interactive Remo webhosting platform and consist of learning and networking opportunities, broken down in the following schedule:

  • 15 minute Networking Session
  • 30 minute SBA Final Rule Topic Presentation
  • 30 minute Follow-Up Networking

We look forward to getting your business ahead of the curve.

Be sure to check back here for detailed discussions of the Final Rule changes that will accompany each weekly Web Session.

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.

Government contractors may face performance evaluations by federal agencies that erroneously or capriciously capture the  efficacy of their work,  at times by seemingly arbitrary standards. These evaluations can hobble key abilities to gain new projects — the lifeblood of federal contractors.

In his article for Modern Contractor Solutions, Federal Government Contracts and Procurement Partner Nicholas Solosky details how the Contract Disputes Act (CDA) creates the framework for handling “claims” against the government on Federal contracts and discusses key evaluation issues, including: 

  • Past Performance
  • Ratings and Narratives
  • CPARS Procedure/Timeline
  • Practical Resolution Strategies

Read the full article.

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.