Insights

On March 20, 2025, the White House issued Executive Order (“EO”), “Eliminating Waste and Saving Taxpayer Dollars by Consolidating Procurement,” to consolidate domestic civilian contracting for “common goods and services” within one agency—the General Services Administration (“GSA”). The EO defines “common goods and services” as those described in the Category Management system first developed as part of a previous effort, dating back to 2014, to coordinate spending across the government.

On February 26, 2025, the White House issued an Executive Order (“EO”), “Implementing the President’s ‘Department of Government Efficiency’ Cost Efficiency Initiative,” to transform federal spending on “covered” contracts, grants, and loans. The EO defines “[c]overed contracts and grants” as “discretionary spending through Federal contracts, grants, loans, and related instruments, but excludes direct assistance to individuals; expenditures related to immigration enforcement, law enforcement, the military, public safety, and the intelligence community; and other critical, acute, or emergency spending, as determined by the relevant Agency Head.”

In MVL USA, Inc. et al. v. United States, the United States Court of Federal Claims (“COFC”) held that the provisions of FAR 22.505, 52.222-33 and 52.222-34 (collectively, the “PLA mandate”), which required the use of project labor agreements (“PLAs”) on large-scale federal construction projects valued above or at a certain threshold, violated the Competition in Contracting Act (“CICA”). As we previously reported here, former-President Biden issued Executive Order 14063 in February 2022, instructing federal agencies to require construction contractors and subcontractors on projects valued at $35 million or more to “agree, for that project, to negotiate or become a party to” a PLA. A few months later, the FAR Council promulgated a final rule implementing the executive order in FAR 22.505, 52.222-33 and 52.222-34. 

On January 14, 2025, the U.S. Federal Highway Administration (FHWA) published a Final Rule terminating a longstanding manufactured products waiver as part of the agency’s continued implementation of the 2021 Infrastructure Act’s Build America, Buy America (BABA) provisions.  The waiver, originally established in 1983, limited application of the FHWA’s Buy America requirements to only iron and steel products, while permitting recipients of FHWA financial assistance to turn to foreign sources for more complex products.  However, in accordance with the BABA’s express direction for agencies to review and reconsider waivers of general applicability such as the manufactured products waiver, the FHWA determined that its original rationale for the waiver was no longer applicable, and it proposed revised regulations to harmonize its Buy America program with the requirements of BABA (previously discussed here).

On March 15, 2024, the General Services Administration (GSA) issued Acquisition Letter MV-2024-01 providing guidance to GSA contracting officers on the use of upfront payments for acquisitions of cloud-based Software-as-a-Service (SaaS).  Specifically, this acquisition letter clarifies that despite statutory prohibitions against the use of “advance” payments outside of narrowly-prescribed circumstances, upfront payments for SaaS licenses do not constitute an “advance” payment subject to these restrictions when made under the following conditions:

Key Takeaways:

On August 23, 2023, the Office of Management and Budget (OMB) released its final rule and notification of final guidance addressing implementation of the Build America, Buy America Act (BABA) provisions enacted with the Infrastructure Investment and Jobs Act (IIJA), which requires the use of domestic iron, steel, manufactured products, and construction materials in infrastructure projects supported with federal financial assistance.  The final rule goes into effect October 23, 2023, and applies to federal awards for infrastructure projects awarded after November 15, 2021.  We previously reported on OMB’s February 9, 2023 proposed guidance here.

In a polarized political environment, one area of bipartisan agreement in recent years has been renewed interest in leveraging government purchasing power to promote the domestic manufacturing base by expanding and strengthening federal “Buy America” requirements.  For direct federal procurements subject to the Buy American Act (BAA), this has resulted in revised rules increasing the amount of U.S. content required to qualify a product as domestic, as well as heightened scrutiny of when waivers may be issued exempting a procurement in whole or in part from those requirements (covered here and here).    

The Treasury and IRS’s proposed guidance on the domestic content requirements under IRC Sections 45, 45Y, 48, and 48E generally track the Federal Transit Administration Buy America requirements, which represent a long-standing regime applicable to mass transportation infrastructure projects, with some important distinctions for the clean energy industry to consider when planning new projects.

On April 26, the Federal Circuit issued a decision in Crawford v. United States (a C&M case), holding that a U.S. Army combat veteran is entitled to recover his attorneys’ fees arising from a dispute related to obtaining medical retirement benefits earned during his service.  In the underlying dispute on remand to the Army Board for Correction of Military Records from the Court of Federal Claims (COFC), Mr. Crawford obtained full relief, including nearly a decade of retirement benefits that he was unlawfully deprived of due to his erroneous administrative discharge, but Mr. Crawford was initially denied recovery of his attorneys’ fees under the Equal Access to Justice Act (EAJA).  Mr. Crawford appealed, and the Court of Appeals for the Federal Circuit unanimously reversed the COFC, holding that (1) even though the COFC’s remand order stated that it was based on judicial economy, the substance of the Government’s admissions in the case amounted to an “implicit” concession of error, and (2) the Government’s legal position was not “substantially justified” under the relevant EAJA standards.  The Federal Circuit then remanded the case to the COFC to determine the quantum of legal fees to be awarded to Mr. Crawford. 

As previewed in President Biden’s State of the Union Address, the Office of Management and Budget (OMB) issued a proposed rule and notification of proposed guidance on February 9, 2023 to improve uniformity and consistency in the implementation of Build America, Buy America (BABA) requirements applicable to federally funded infrastructure projects pursuant to the Infrastructure Investment and Jobs Act (IIJA).

Not to be outdone by the Department of Defense’s commitment to consider inflation relief, on September 12, 2022, the General Services Administration (“GSA”) Federal Acquisition Service published a Supplement to Acquisition Letter MV-22-02, extending and enhancing policies to provide inflation relief to GSA Schedule contractors.  As we previously explained, the original Acquisition Letter relaxed certain limitations on Schedule contractors’ ability to obtain Economic Price Adjustments (EPAs).  Specifically, it suspended limits on the frequency, size, and total number of EPAs a contractor could obtain during each contract term, while also lowering the approval threshold required for GSA to issue an EPA.  The relief provided by the original Acquisition Letter was set to expire on September 30, 2022, but is now extended through at least March 31, 2023. 

On July 18, the GSA Office of the Inspector General (OIG) issued an Alert Memorandum both broadcasting and criticizing the Federal Acquisition Service’s (FAS) apparent decision to expand the Transactional Data Reporting (TDR) rule to the entire Multiple Award Schedule (MAS). The TDR Pilot Program studied the potential for TDR to reduce the compliance burdens of the MAS program by replacing the various requirements Federal Supply Schedule (FSS) contractors must fulfill to ensure the pricing offered to GSA customers is fair and reasonable, including the obligation to make Commercial Sales Practice disclosures and to track commercial pricing and discounts to the negotiated Basis of Award customer under the Price Reductions Clause. The GSA OIG previously criticized the TDR Pilot Program.

In light of the confluence of factors driving sustained inflation across the U.S. and global economies, including the current conflict in the Ukraine, ongoing recovery from the global pandemic, and other disruptions to global supply chains, the General Services Administration’s (“GSA”) Federal Acquisition Service published Acquisition Letter MV-22-02 on March 17, 2022, announcing a temporary relaxation of certain limitations on Multiple Award Schedule Contractors’ ability to obtain Economic Price Adjustments (“EPAs”).  Specifically, the Acquisition Letter identifies various sections of certain EPA clauses that GSA does not intend to enforce until September 30, 2022 at the earliest, the effect of which will be to:

On March 7, 2022, the FAR Council published a Final Rule implementing further revisions to the Buy American Act (BAA), as contemplated by President Biden’s Executive Order titled Ensuring the Future is Made in All of America by All of America’s Workers, which he issued his first week in office. The Final Rule makes three key changes to the BAA regulations, which are for the most part consistent with the Proposed Rule:

During December 2021, the House and Senate reached agreement on a compromise National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022.  On December 23, 2021, Congress presented S. 1605 to President Biden, which he signed on December 27, 2021. 

In a recent alert, we highlighted VS2 v. U.S., in which theCourt of Federal Claims refused to expand the Federal Circuit’s Blue & Gold waiver doctrine and required the Army to consider performance risk in a cost realism evaluation. In a new “Feature Comment” published in The Government Contractor, we take a deeper dive into the Court’s disagreement with GAO and what it means for contractors and agencies going forward. Of particular note, contractors considering capping costs in their proposals should carefully consider when and how agencies may evaluate performance risk; and both protesters and intervenors must stay vigilant and diligently pursue potential protest grounds.

In VS2 v. U.S., the U.S. Court of Federal Claims (“COFC”) rejected a Government Accountability Office (“GAO”) decision that effectively flipped an Army contract award.  After an initial award to VS2, Vectrus filed a GAO protest alleging that the Army erred by upwardly adjusting Vectrus’ most probable cost (“MPC”) and assessing performance risk where Vectrus had proposed to cap those costs.  GAO agreed, holding that Vectrus’ price should not have been adjusted and that any consideration of performance risk should have been limited to a responsibility determination.  GAO recommended the Army award the contract to Vectrus and, after the Army did so, VS2 filed its own protest.  GAO summarily dismissed VS2’s post-award protest as an untimely request for reconsideration and a belated challenge to GAO-recommended corrective action.  VS2 then filed a protest at the COFC, which took a decidedly different tack.

On July 30, 2021, the FAR Council published a Proposed Rule to implement President Biden’s January 2021 Executive Order seeking to maximize the use of American-made products and materials in federal procurements.  Coming just six months after a recent January 2021 Final Rule increasing both the domestic content percentage and the price evaluation preferences for U.S. products and materials under the Buy American Act, the Proposed Rule would further increase the domestic content percentage for the Buy American Act, while also adopting new policies specifically aimed at increasing domestic production of “critical” goods and components. The Proposed Rule advances three major policy changes: