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

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

The $789 billion stimulus bill, H.R. 1, which passed Congress February 13, is expected to have sweeping ramifications for the contracting industry.  Four themes throughout the stimulus foreshadow what federal contractors can expect from the Obama Administration: energy efficiency, transparency, competition, and oversight.
 Continue Reading Stimulus Expected to Have Sweeping Ramification for Contracting Industry

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). As widely reported in the media, the Stimulus Bill includes approximately $787 Billion in government spending and tax cuts. With regard to the government spending provisions (Division A of the Act, which appropriates approximately $520 Billion), the U.S. Government (as well as the State and local governments receiving this money) will disburse the funds through a number of different vehicles – namely government contracts, grants, cooperative agreements, and other transactions. The legislation is intended to deal with, on an expedited basis, economic conditions that many Americans have not experienced in their lifetimes and for which they want an accelerated cure. Those familiar with the federal acquisition and grant processes, however, know that immediacy is not built into those processes. Moreover, to the extent that the “need for speed” overtakes process, recipients of the funds will almost assuredly find themselves downrange from one of the most rigorous oversight regimes ever enacted. Companies, and even States and localities – should familiarize themselves with the full terms of the Faustian bargain they will be striking.  
Continue Reading Stimulation Has Its Price – The Audit and Oversight Provisions of The 2009 Stimulus Bill Are Unlike Anything Most Funding Recipients Have Ever Seen

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