Category Archives: Procurement

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Final Rule Issued on Enhanced Competition for Task and Delivery Order Contracts

By Marko W. Kipa On March 19, 2009, the FAR Councils issued a final rule providing for enhanced competition for task and delivery order contracts. See 75 Fed. Reg. 13416 (Mar. 19, 2009). The final rule was the culmination of a rulemaking process that surfaced in Section 843 of the National Defense Authorization Act of 2008, Pub. L. … Continue Reading

Administration Actively Solicits Higher Costs From Bidders – Is Its “High Road Procurement Policy” Headed Off a Cliff?

The Obama Administration is now planning yet another spending plan, this time in the form of a policy that actively encourages federal contractors either to increase the pay and benefits extended to their workforces, or to face an evaluative disadvantage in competing for federal contracts. This so-called "High Road Procurement Policy" includes an evaluative reward for … Continue Reading

Six Questions To Ask In Figuring Out Whether The Recovery Act Buy American Requirement Applies To You

Nearly one year ago on February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (Pub. L. No. 111-5), more commonly known as the Stimulus Act, the Recovery Act, or ARRA. One of the key features of the Act included a "Buy American" requirement, requiring domestically manufactured "iron, steel, or … Continue Reading

New 2010 Updates to Buy American and Trade Agreements Dollar Thresholds; Buy American Requirements Remain Elusive and Complicated

Effective January 1, 2010, the U.S. Trade Representative (USTR), Ronald Kirk, published new dollar thresholds determining the applicability of the Buy American Act (BAA), the Trade Agreements Act (TAA), and (potentially) other "Buy American" preferences to the United States’ various international free trade agreements. See 74 Federal Register 68907 (December 29, 2009). The changes to the dollar … Continue Reading

DHS Publishes New Rules Expanding Berry Amendment to Most DHS Procurements

As part of the much ballyhooed Stimulus Act signed into law on February 17, 2009 (discussed in detail here), Congressman Lawrence “Larry” Kissell (D-NC) introduced an amendment titled, “the Berry Amendment Extension Act,” which placed domestic source restrictions on the purchase of certain fabric and textile products by the U.S. Department of Homeland Security (“DHS”). See … Continue Reading

Trimming the Fat in Government Subcontracts — Recognizing What Really Needs to Be Flowed Down by the Prime

Even experienced contractors can find themselves in unfamiliar waters when delving for the first time in the world of government contracts. In many cases, the first step for a commercial company may be acting as a subcontractor (the "Subcontractor") for another company (the "Prime") that is contracting directly with the Government. Even though the Subcontractor’s contract is … Continue Reading

The President Admits the Stimulus Is Not Working as Hoped. Well, Duh.

The Administration has conceded that the American Recovery and Reinvestment Act (“ARRA”) has not worked as planned. With unemployment numbers continuing to climb, the Administration now acknowledges it “misread the economy.” But from the beginning not everyone believed ARRA would achieve the desired stimulative effect. After all, $787 billion cannot be disbursed without some complication.  … Continue Reading

Country of Origin –
“Made In Taiwan” Will Soon Be TAA Compliant
China Continues to Dawdle
Costa Rica, Peru, and Oman also Recognized

On June 16, 2009, Taiwan (aka Chinese Taipei) took the penultimate step in acceding to the World Trade Organization’s Government Procurement Agreement (WTO GPA), which will eventually grant Taiwan "free trade partner" status under the Federal Acquisition Regulation (FAR) and allow companies selling to the U.S. Government to deliver products that are manufactured in Taiwan. The … Continue Reading

Recovery Act Update –
U.S. Stimulus: “Buy American”
PRC Stimulus: “Buy Chinese”
Canada and WTO: “Not Pleased”

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (Pub. L. No. 111-5), known popularly by a variety of names, including “ARRA,” the “Recovery Act,” and the “Stimulus Act.” We have previously discussed many of the provisions relating to the Recovery Act at some length, especially the implementing regulations … Continue Reading

Federal Circuit Grounds The “Flying Dorito”

In McDonnell Douglas Corp. v. United States, Civil Action No. 2007-5111-5113 (Fed. Cir. June 2, 2009), the Federal Circuit, after more than a decade of A-12 litigation, upheld a termination for default, finding that the Government was justifiably insecure about the contract’s timely completion. The Court’s opinion articulates the sustainable rationale for a default termination when … Continue Reading

“There You Go Again” – Does the Fourth Estate Even Try to Get it Right When it Comes to Government Contracts?

The influential inside-the-Beltway newspaper and website Politico "reports" in its May 26th edition that, as the Administration is "following through" on its campaign pledge to cut wasteful Pentagon spending, it is finding that "the price is high." Politico, May 26, 2009 at 14. Well, OK, as a well worn bumper sticker says “Choices have consequences,” … Continue Reading

New Recovery Act Rules Implement Provisions Relating To Government Audit Access, Whistleblower Protections, And Buy American Requirements; Much Confusion Remains

On March 31, 2009, the FAR Councils issued several new interim rules (effective March 31, 2009) implementing the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) (also known as ARRA, The Recovery Act, or the Stimulus Act). See Federal Acquisition Circular (FAC) 2005-32, published at 74 Federal Register 14621-14652. The FAC issued new interim rules on … Continue Reading

FAR Councils Issue Interim Rule For Reporting On Recovery Act Work

Federal contractors that perform work funded, in whole or in part, by the American Recovery and Reinvestment Act of 2009 must report on certain aspects of that work under an interim rule issued by the FAR Councils on March 31, 2009. As currently written, the interim rule provides that recipients of Recovery Act funds must report … Continue Reading

On Their Way: The MAS Advisory Panel Recommendations

With its mission to discuss and recommend changes to the MAS program, including price reductions provisions, most favored customer status, and practices in commercial pricing, the Multiple Award Schedule (“MAS”) Advisory Panel has voted on several recommendations to present to the Administrator of GSA.  The Panel has been meeting since April last year, and currently … Continue Reading

More Buy American Requirements in the 2009 Stimulus Act: Berry Amendment Expanded To Include DHS

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Tax Act of 2009 ("the Act" or "the Stimulus Bill") (P.L. 111-5) (H.R. 1).  We already have discussed some of the provisions of this Act here and here, focusing on the implications of the various audit and Buy American provisions (including … Continue Reading

Free Trade Agreements, “Made In America,” and The 2009 Stimulus Package – Country of Origin Requirements Remain an Elusive Compliance Obligation

On January 15, 2009, the Government issued a final rule adjusting the dollar thresholds at which the Trade Agreements Act ("TAA") applies to U.S. Government procurements.  See 74 Federal Register 2745.  The changes were originally enacted as an interim rule in February 2008 (see 73 Federal Register 10962 and 73 Federal Register 16747; see also … Continue Reading

FAR Councils Issue Final Rule for Human Trafficking

On January 15, 2009, the FAR Councils issued the final rule implementing the provision of the Trafficking Victims Protection Reauthorization Act of 2005 ("TVPA") 22 U.S.C. § 7104(g).  The final rule is implemented by FAR 52.222-50 entitled “Combatting Trafficking in Persons.”  … Continue Reading

Sheppard Mullin Co-Sponsors Bisnow Event Discussing Federal IT Trends in the Obama Era

On Thursday, January, 22, 2009, Sheppard Mullin co-sponsored a Bisnow event that discussed opportunities for government contractors, particularly those in the Federal IT industry, under the new Administration. Panelists included several government and industry leaders, including: DoD Deputy CIO David Wennergren, Karen Evans (former Administrator of the Office of e-Government and Information Technology at OMB), … Continue Reading

State Bans On Offshore Contracting

Introduction By John W. Chierichella (B.A., Cornell University, 1969) From time to time in this blog, we have reported on developments relating to federal restrictions on the direct or indirect acquisition of offshore resources, with the ever evolving restrictions on the acquisition of specialty metals being a particular bête noire of our contributors.  This month we are … Continue Reading

Comments Submitted On Interim Rules for Enhanced Competition for Task and Delivery Order Contracts

On September 17, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued interim rules providing for enhanced competition for task and delivery order contracts.  The interim rules essentially mirrored Section 843 of the National Defense Authorization Act of 2008 (the Act), which went into effect on May 27, 2008, and revised … Continue Reading

Enhanced Competition For Task and Delivery Order Contracts

With the enactment of the Federal Acquisition Streamlining Act (FASA) in 1994, Multiple Award task and delivery order contracts were given a significant boost.  As part of that legislation came an almost ironclad bar to bid protests against the award of individual task or delivery orders.  Disappointed offerors were prohibited from protesting the award of … Continue Reading
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