Government Contracts Newsletter - June 2023
Government Contractors: Start Preparing For Greenhouse Gas Emissions Reporting
Some Government Contractors will soon be required to publicly disclose greenhouse gas emissions and climate-related financial risk. A proposed rule issued by DoD, GSA, and NASA would revise the FAR. Non-excepted contractors who do not comply with these rules could be presumed non-responsible and thus ineligible to receive federal awards.
TikTok on Contractor Devices Banned By Interim Rule
The “No TikTok on Government Devices Act” was recently published as an interim rule by the Federal Acquisition Regulation (FAR) Council. The interim rule prohibits the use of TikTok or other applications by ByteDance (TikTok’s parent company) on contractors’ information technology (IT), including employee-owned devices used as part of a bring-your-own-device program.
Contracting Officers are directed to include the prohibition on TikTok “in solicitations issued on or after June 2.” Contract solicitations issued before the rule’s effective date, but scheduled to be awarded after June 2, must be amended by July 3 to comply with the new rule.
The rationale for the interim rule and the Act is based on concerns regarding the potential for the Chinese government to access users’ personal data.
The “No TikTok on Government Devices Act” was included in the Consolidated Appropriations Act of 2023 and was also addressed in a recent Office of Management and Budget Memorandum M–23–13.
If Government Uses Written Materials For Debriefing, Do Not Open Emails Sent After Normal Business Hours
A contractor’s GAO protest, who received a Government Agency’s debriefing material after normal business hours, was found to be untimely merely for forwarding but not reading the email.
The contractor received the email on March 28th, a Friday. He assumed that since the email was received after hours, the effective date of receipt would be the next business day, which was Monday, March 31st. Thus, the contractor filed his protest ten (10) days later on April 10th.
The Government argued that the protest was untimely because, though the contractor received the debriefing email after normal business hours, he opened the email after normal business hours, thus acknowledging receipt of the debriefing. Accordingly, the Government argued, and the GAO agreed, that the ten (10) day deadline began on March 28th, when the contractor opened the email. The rationale was that he had to open the email to forward it, and it was unlikely that he did not review the topic of the email before forwarding. Thus, his protest was ruled untimely.
Debriefings are generally given by a Federal Agency to unsuccessful offerors in a contract competition if they request one. Essentially, the debriefing is designed to tell the unsuccessful offerors why they lost. Such debriefings used to generally consist of a conversation between the contractors and Government representatives that were either in-person or by phone. In recent years, agencies have been using written charts to explain why a contractor did not win the competition, which they email to the contractors that request debriefings. An acknowledgment of the receipt of such written charts represents that a debriefing has been conducted.
The case described here was Infotrend Inc., GAO B-419956.301 (May 11, 2023).
Contractors: Keep Your S.A.M. Registration Up To Date Or Lose The Contract You Won
A contractor lost a contract it won in a competition due to the fact that its S.A.M. registration lapsed between the time the firm made its offer and the time of the award. A System for Award Management (SAM) registration is required for businesses to do federal contracting and for nonprofits to receive grants. The protest was filed in the U.S. Court of Federal Claims (COFC). The solicitation was issued by the Centers for Medicaid and Medicare Services of the Department of Health and Human Services. In the solicitation, the Agency had incorporated FAR 52.204-7(b)(1), which requires offerors to be registered with the System for Award Management (SAM) until the time of award.
The awardee was registered with SAM when it submitted its proposal. However, the registration lapsed while the agency evaluated proposals. The awardee thought that it had covered its bases by re-registering before the award.
However, the Court of Federal Claims (COFC) found the re-registration could not save the awardee because the above-mentioned FAR clearly requires SAM registration to continue until the award. The COFC reasoned that the lapse during the evaluation made the awardee ineligible.
For more information, see Myriddian, LLC v. United States, COFC No. 23-443 (May 23, 2023).
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.