Georgia Tech Procurement Assistance Center

GAO says strict compliance with Buy American Act exception requirements not necessary

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The Situation: The Government Accountability Office (GAO) recently held that a bid need not contain all of the information listed in the Federal Acquisition Regulation (FAR clause 52.225-9) to qualify for the “unreasonable cost” exception to the Buy American Act (BAA).

The Result: The decision requires agencies to analyze the contents of a bid, rather than mechanically rejecting it on a technicality.

Looking Ahead: A company can protest a rejected bid so long as the missing information would not allow the bidder to later alter its price or relative standing.

The GAO recently sustained a protest finding that it was unreasonable for the Department of Energy (DOE) to reject a bid simply because it failed to strictly comply with all of the requirements for an exception to the BAA. In Addison Constr. Co., B-416525 (Sept. 4, 2018), Addison Construction Company submitted a bid to construct a capacitor bank for DOE in Arizona. Addison’s bid informed DOE that a portion of the construction materials used would be foreign, not domestic. Addison’s bid requested an exception to the BAA pursuant to FAR clause 52.225-9, available when the cost of domestic construction material is “unreasonable” (i.e., it exceeds the cost of foreign material by more than six percent).

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=760680

Trade Agreements Act enforcement loses a couple more teeth

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Two recent judicial decisions involving the Trade Agreements Act (TAA) build on a trend reflecting a more favorable enforcement climate for contractors grappling with domestic preference regimes.

Earlier this year, the U.S. District Court for the District of Columbia dismissed a qui tam action that alleged fraud in connection with country of origin requirements imposed by the TAA. United States ex rel. Folliard v. Comstor Corp., 308 F.Supp.3d 56 (D.D.C. 2018) (finding the relator failed to adequately plead that the alleged TAA noncompliance was “material” to the Government’s payment decision). The decision marked a welcome early defeat of a False Claims Act case based on the enhanced materiality and scienter requirements of the Escobar decision (more here).

Two recent federal court decisions appear to extend the trend of taking some of the bite out of TAA enforcement, and potential exposure for alleged noncompliance.

Despite this welcome news, domestic preference programs remain a key legal obligation for government contractors (and an area likely to remain under scrutiny with the Administration’s professed focus on Buy American and Hire American initiatives).

Keep reading this article at: https://governmentcontractsnavigator.com/2018/09/17/trade-agreements-act-enforcement-loses-a-couple-more-teeth/

4 ways to avoid suspension or debarment on federal contracts

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The U.S. government appropriated $120 billion for federal construction spending in 2017, covering a range of projects from the construction of a new Federal Bureau of Investigation headquarters to building agricultural research facilities, according to the Associated General Contractors of America. President Donald Trump’s 2018 budget proposal, even with its cuts to key federal spending programs and new funds for a U.S.–Mexico border wall, calls for roughly the same level of investment.

Because of the potential for a big payoff, some companies have elected to become experts in the federal contracting field, making it the focal point of their business plans. Other contractors, like international design, engineering and construction firm AECOM, have set up specialized business units to take advantage of government contracting opportunities.

Keep reading this article at: http://www.constructiondive.com/news/the-dotted-line-4-ways-to-avoid-suspension-or-debarment-on-federal-contrac/448789/

 

Russia concerns negatively impact GSA Schedule contractors

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There is no shortage of news these days involving Russia.

You would think that U.S. government contracting would be immune from these considerations. You’d be wrong.

That’s because on July 11 2017, the Government removed Moscow-based Kaspersky Lab products from the General Services Administration’s Schedule Program. Kaspersky provided products through resellers which held GSA Schedule 67 and 70 contracts for photographic equipment and related services, and IT services. As a company based in Moscow, Kaspersky came under scrutiny from the Government and was removed from the schedules “to ensure the integrity and security of U.S. government systems and networks” according to a GSA statement cited by Reuters.

According to the Government’s System for Award Management (SAM), Kaspersky remains an active contractor and has not been suspended or proposed for debarment. Accordingly, agencies can still purchase Kaspersky products but not from Kaspersky’s previously held schedule contracts.

Keep reading this article at: http://www.jdsupra.com/legalnews/russia-concerns-negatively-impact-gsa-70004/

How will Trump’s ‘Buy American, Hire American’ executive order impact construction?

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In the latest of a series of executive orders signed since his inauguration, President Donald Trump has again chosen that method as a way to affect policy in the U.S. Unlike some other executive orders that aim to streamline project schedules and cut red tape, however, the “Buy American and Hire American” measure could put more restrictions on the construction industry.

Inside the executive order

The executive order doesn’t change anything just yet. Through the order, Trump calls on all of his administration’s agency heads to:

  1. Evaluate the implementation and compliance of existing Buy America laws under their jurisdictions
  2. Take a look at their waiver process and determine how it is affecting American business.
  3. Come up with additional policies, within the confines of existing law, that “maximize” the use of American-made products and their components, including common construction materials like steel, iron, aluminum and cement.

For purposes of the order, administration officials added that American-made steel means that it is produced in the U.S. from the melting phase forward.

Keep reading this article at: http://www.constructiondive.com/news/trumps-buy-american-hire-american-executive-order-construction-industry/441115/

‘Buy American’ order draws mixed reviews from contractors

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Last Tuesday (Apr. 18, 2017) President Trump traveled to the Snap-On Tool manufacturing plant in Kenosha, Wis., to sign a previously announced executive order that tasks agencies and contractors with ramping up efforts to “Buy American” and “Hire American.”

Combined with a crackdown on unmerited high-level work visas and unfair trade practices, the order taps procurement specialists to propose contracting reforms to be assembled over 220 days by Commerce Secretary Wilbur Ross to create a “more muscular” Buy American policy, as a senior administration official told reporters Monday.

“It’s time,” Trump told the crowd on Tuesday, for the government to “aggressively promote and use American-made goods and to ensure that American labor is hired to do the job.” The purpose of the order is to require “federal agencies to strictly uphold our Buy American laws and minimize waivers and maximize Made in America content in all federal projects,” he said. “We will fully monitor, uphold and enforce our Buy American laws, which we haven’t done.”

Keep reading this article at: http://www.govexec.com/contracting/2017/04/trumps-buy-american-order-draws-mixed-reviews-contractors/137129

For more on this topic, also see:

What contractors should expect from the Trump administration

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Government contractors are in the dark about what President Donald Trump’s administration has in store, just like everyone else. But government contract lawyers from the law firm Crowell and Moring are making some speculations.

Robert Burton, partner at Crowell and Moring and former deputy administrator of the Office of Federal Procurement Policy, said the overarching goal of the administration seems to be a more efficient procurement system at much lower prices.

“I think that’s going to translate into increased opportunities for federal contractors, as well as some challenges,” Burton said in a Jan. 26 webinar.

The administration’s top priority, Burton said, seems to be reducing the number of regulatory and compliance burdens contractors function under, especially those imposed by the Obama administration. Burton said he expects the Fair Pay and Safe Workplaces Executive Order, among others, to be rescinded soon.

Keep reading this article at: http://federalnewsradio.com/acquisition-policy/2017/01/contractors-expect-trump-administration/ 

A construction contractor’s guide to “Buy American” rules and regulations

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The federal government has a long-standing preference for using domestic products in federal manufacturing, supply, and construction procurements. Newer rules are applying this old-age preference to additional sectors of construction that the federal government has a hand
in.

The general rule for federal procurements is that all physical products provided or sold to  the government must be made in the United States, unless an exception to this rule applies.  These domestic preferences are governed by a complex framework of statutes and regulations, prohibitions and waivers, and rules and exceptions that are oftentimes difficult for contractors to understand and follow. It is crucial that all construction contractors, especially federal contractors, understand these domestic preferences in order to avoid the significant penalties that may be imposed for any failure to comply.

The federal government’s domestic preferences are generally governed by one of four statutory schemes: (1) the Buy American Act of 1933 (“BAA”), as modified by the Trade Agreements Act (“TAA”); (2) the Buy America provision of the Surface Transportation Assistance Act of 1982 (“Buy America”); (3) the American Iron and Steel Requirements (“AIS Requirements”), as part of the Consolidated Appropriations Act, 2014 (“Appropriations Act”) and the Water Resources Reform and Development Act of 2014 (“WRRDA”); and (4) the American Recovery and Reinvestment Act (“Recovery Act”).

Keep reading this article at: http://www.agc.org/galleries/default-file/The%20Construction%20Contractor-‘s%20Guide%20To%20Buy%20American%20Rules%20and%20Regulations.pdf

Rule would waive Buy American provisions for some Afghanistan support contracts

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By Elizabeth Newell enewell@govexec.com January 6, 2010

A Federal Acquisition Regulation rule change filed on Wednesday would waive certain Buy American restrictions for contracts in support of operations in Afghanistan. The waiver would apply to nine countries in the Afghan region and would exclude some products such as guns and ammunition.

The proposed rule would implement a July 2009 declaration from Deputy Defense Secretary William Lynn to the same effect. Lynn’s waiver, outlined in a memorandum from Shay Assad, director of Defense acquisition and procurement policy, to military and contracting officials, stated that allowing Defense to buy support items from South Caucasus and Central and South Asian countries — specifically Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan, Turkmenistan and Uzbekistan — has a range of potential benefits.

Permitting these acquisitions would improve local market and transportation infrastructure in the Afghan region; reduce the U.S. government’s transportation costs; and facilitate “the free flow of regular, reliable large-scale shipments of products and services through the region in support of the operations in Afghanistan,” Lynn stated. The waiver would lift restrictions “inconsistent with the public interest” and encourage countries in the region to cooperate in expanding supply routes, he added. In turn, a more robust commercial transportation network in the area would help connect Afghanistan to its neighbors, promote regional commerce, diversify existing infrastructure, and generally bolster stability and prosperity, he noted.

The FAR rule, which is open to public comment until March 9, would apply this waiver to Defense Department contracts and those underwritten by the General Services Administration. There is a repeated exemption for arms, ammunition and war materials; the government will continue to be required to buy those products from American firms.

The proposal contains a clause aimed at reciprocity. Foreign companies that sign deals with the U.S. government under this provision would be required to inform their country’s government of its participation in the acquisition and that “it generally will not have such opportunity in the future unless its government provides reciprocal procurement opportunities to U.S. products and services and suppliers of such products and services.”

Comments on the proposal can be sent to dfars@osd.mil.

(C) 2010 BY NATIONAL JOURNAL GROUP, INC. ALL RIGHTS RESERVED.

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