Following issuance by the Department of Defense of Final Rule No. 87 FR 15808 in March of 2022, unsuccessful offers on negotiated contracts, task and delivery orders valued at more than $10 million are able to submit follow-on questions related to a “required” post-award debriefing provided by the procuring Agency. Under the new procedures set forth in the Final Rule, the procuring Agency shall provide unsuccessful offerors “an opportunity to submit additional written questions related to the required debriefing not later than 2 business days after receiving the postaward debriefing.” If the unsuccessful offeror makes a timely submission of follow-on questions, then debriefing period will conclude when the “agency delivers its written response.” The Final Rule calls for the Agency response within 5 business days after receipt of the follow-on questions.
The Enhanced Post Award Debrief provides unsuccessful offerors not only an important tool to clarify issues relating to the Agency award decision, but also additional time to consider whether to protest the award decision.
In Executive Order (“EO”) No. 14005, dated January 25, 2021, President Biden directed several changes to regulations issued in connection with the Buy American Act of 1933, which sets for the policy preference for Federal Agencies to purchase American made products. Under certain circumstances, Federal Agencies may “waive” the buy American requirement. To better control the use of such waivers, the EO establishes a “Made in America Office” (“MAO”), which is charged with overseeing the use of such waivers. The EO requires Federal Agencies (for example, the Department of Defense), to provide the MAO with the waiver application for the planned contract, to include notice of the planned solicitation and a detailed justification for the use of non-American product. The waiver application submitted by the Agency and the decision on the application by MAO will be made available to the public via the world wide web.
In another change concerning the Buy American Act of 1933, the EO calls for replacement of the “component test” to determine whether a product is considered “american” with a “value added” approach, under which value is determined based on the value added to the product through U.S. based production or job supporting economic activity.
A further change concerns updates to the “List of Non-available Articles”, which is published under 48 CFR § 25. This list contains products that are not mined, produced or manufactured in the United States in sufficient and reasonably available commercial quantities with a satisfactory quality. Updates to the list must now be made in consultation with the Secretary of Commerce and the Director of the Made in America Office.
Attorney Reinsdorf published an article entitled “Jüngste Entwicklungen in den USA zur Pfändung von Anteilen einer Limited Liability Company (LLC)” (Recent Developments in the USA on Attachment of Shares of a Limited Liability Company (LLC). The article appears in the January/February edition of the German language law journal “Recht der internationalen Wirtschaft” (Law [journal] of International Commerce, 1-2/2021. The article elaborates on recent case law concerning priority issues relating to the enforcement of competing charging orders in America.
The FAR Council issued two new FAR clauses with an effective date of August, 13, 2020 that restrict the supply / use of “covered” Chinese manufactured telecommunications equipment on US Government contracts. Under FAR Clause 52.204-26, the offeror/contractor must now represent whether covered equipment will be supplied under the contract. Similarly, FAR Clause 52.204-24 requires the offeror/contractor to represent whether it “uses covered telecommunications equipment or services.” If such equipment is being used, the contractor is required to disclose the details of such use to the Contracting Officer.
Under new FAR section 4.2102, equipment is considered “covered” where it represents “a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (b) applies or the covered telecommunications equipment or services are covered by a waiver described in 4.2104.”