Helping individuals, companies, and organizations understand key legal and practical considerations for promoting compliance and making better business decisions in these types of federal, state, and local government contracting matters MORE

Traditionally, a fixed price government contract is one in which the contractor absorbs the risks and costs of performance.  Absent an economic price adjustment (EPA) clause in the contract, an unforeseeable event, such as a force majeure, or government imposed contract change, the contractor is stuck with the benefit or lack of benefit of the particular contractual bargain. In a cost reimbursement contract, while actual allowable, allocable and reasonable costs will be captured and paid, any fee contemplated to address the risks of performing that commitment are typically low.

However, the current landscape is not a normal one.  It may be due to the COVID-19 pandemic sickness, restrictions and lockdowns, the war in Ukraine, China’s belt and road initiative, US spending of trillions of public dollars on entitlement programs, or something else, however, we see the impact in growing workforce, materials and product shortages.  Economic theory aside, we know that so long as there is a continuing demand for limited services and supplies inflation will continue to grow.  And, if price controls are instituted, they will not aid existing product shortages, and in fact may compound them.

Continue Reading Growing Issue of Inflation in Government Contracts Supply Chain Leads to DoD Clarification on Potential for Relief

Once again the President has invoked the Federal Property and Administrative Services Act as the authority for an Executive Order “to promote economy and efficiency.” In his latest Executive Order (EO) issued on Friday, February 4, 2022, President Biden mandated that all federal procurement construction projects valued at $35 million or more must use a

On Tuesday, DOJ released its eagerly awaited False Claims Act (FCA) recoveries for the fiscal year ending September 30, 2021, announcing that DOJ had obtained $5.6 billion in settlements and judgments from civil cases involving fraud and false claims against the government.  This was the second largest annual total in FCA history (only surpassed by

In the wake of increasing cybersecurity threats and incidents, the U.S. Department of Defense (DoD) amended its Federal Acquisition Regulation Supplement (DFARS) in 2015 to issue the 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting clause (DFARS clause).  The DFARS clause, which is included in all DoD solicitations and contracts, including those for acquisitions of commercial items, requires that the contractor must “provide adequate security on all covered contractor information systems.” Covered contractor information systems are those that are “owned, or operated by or for, a contractor and that processes, stores, or transmits covered defense information.” The DFARS clause also requires that a contractor discovering a cyber incident that “affects a covered contractor information system or the covered defense information residing therein, or affects the contractor’s ability to perform the requirements of the contract that are designated as operationally critical support and identified in the contract,” must conduct a review and “rapidly report” the cyber incident to the DoD Cyber Crime Center (DC3).  A “cyber incident” is defined as “actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein.”  The current version of the clause goes on to define “compromise,” “covered defense information,” and more.  Thus, a reportable event only arises when a number of elements are present.  There still remain questions about the timing and scope of reporting under the clause.  Recognizing this, even when there are not mandatory reporting requirements, DoD has established a voluntary public-private Defense Industrial Base (DIB) Cybersecurity program that allows for the sharing of information on cyber threats and more.

Continue Reading A Sea Change in Handling of Government Contractor Cyber Incident Reporting?

On September 30, 2021, the Civilian Agency Acquisition Council (CAAC) issued a formal Class Deviation from the Federal Acquisition Regulation (FAR), to implement rollout of the President’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The CAAC Class Deviation provides for inclusion of the following clause in all covered procurements:

Continue Reading FAR Class Deviations Being Issued to Implement Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors