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

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 accession process is expected to be complete by July 15, 2009. After that date, and once the FAR is updated accordingly, "Made in Taiwan" will finally be an approved country of origin for products and services delivered to the U.S. Government.
 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 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 that were recently published this spring.
 Continue Reading Recovery Act Update -U.S. Stimulus: “Buy American” PRC Stimulus: “Buy Chinese” Canada and WTO: “Not Pleased”

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 there is no firm contract end date or set delivery schedule.
 Continue Reading Federal Circuit Grounds The “Flying Dorito”

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,” and the choice to cancel a contract is no exception to that rule. But the story’s headline and subheadline presage Politico’s insidious and inaccurate message:
 Continue Reading “There You Go Again” – Does the Fourth Estate Even Try to Get it Right When it Comes to Government Contracts?

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 a number of areas required under the Stimulus Act, including:

  • Reporting Requirements for Recipients of Recovery Funds (see 74 Federal Register 14639) 
     
  • Publicizing Contract Actions (see 74 Federal Register 14636) 
     
  • GAO and IG Access to Company Employees (see 74 Federal Register 14646) 
     
  • Whistleblower Protections (see 74 Federal Register 14633) 
     
  • Buy American Requirements for Construction Materials (see 74 Federal Register 14623)
     

This blog focuses on the final three sets of rules – those relating to Auditor access; Whistleblower protections; and Buy American requirements. The first set of rules is discussed separately here.
 Continue Reading New Recovery Act Rules Implement Provisions Relating To Government Audit Access, Whistleblower Protections, And Buy American Requirements; Much Confusion Remains

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 information including, but not limited to—
 

a) The dollar amount of contractor invoices;
 

b) The supplies delivered and services performed;
 

c) An assessment of the completion status of the work;
 

d) An estimate of the number of jobs created and the number of jobs retained as a result of the Recovery Act funds;
 

e) Names and total compensation of each of the five most highly compensated officers for the calendar year in which the contract is awarded if in its preceding fiscal year the contractor received 80 percent or more of its annual gross revenues and $25 million or more in annual gross revenue from federal funds, and such information is not publicly available through SEC filings; and
 

f) Information on first-tier subcontractors, including the same executive compensation information required from prime contractors.
 Continue Reading FAR Councils Issue Interim Rule For Reporting On Recovery Act Work

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 is preparing its final recommendations.  This Blog obtained a copy of the recommendations already adopted by the Panel. 
 Continue Reading On Their Way: The MAS Advisory Panel Recommendations

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 those in Section 1605 of the Act).
 Continue Reading More Buy American Requirements in the 2009 Stimulus Act: Berry Amendment Expanded To Include DHS

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 72 Federal Register 71166; 72 Federal Register 73904), raising the threshold to account for inflation from $193,000 to $194,000 for most procurements involving countries that have agreed to the World Trade Organization Agreement on Government Procurement ("WTO GPA").  For other Free Trade Agreements ("FTAs") with countries such as Australia, Mexico, and Singapore, the threshold is raised from $64,786 to $67,826.  Details on the application of the TAA and the revised thresholds are outlined in FAR Subpart 25.4.
 Continue Reading Free Trade Agreements, “Made In America,” and The 2009 Stimulus Package – Country of Origin Requirements Remain an Elusive Compliance Obligation