GAO Debuts New Protest Procedures Effective May 1, 2018

By Jay Carey, Kayleigh Scalzo and Michelle Willauer on April 19, 2018 Posted in Bid Protests

On April 2, 2018, GAO issued a final rule revising its existing regulations to implement a number of changes to its bid protest process. The new rule becomes effective on May 1, 2018.

Several of these changes implement requirements in Section 1501 of the Consolidated Appropriations Act for FY2014 (“Act”), which directed GAO to institute an electronic filing system and authorized GAO to charge a filing fee to cover the cost of that electronic filing system. But the revisions are not limited to those two issues.

Here are the highlights:

CBCA Proposes Changes to its Rules

By Justin Ganderson, Jason Workmaster, Bryan Byrd and Pierre Hines on April 12, 2018 Posted in Claims and Contract Disputes

On March 28, 2018, the Federal Register published proposed changes to the Civilian Board of Contract Appeals’ (“Board”) Rules of Procedure regarding appeals under the Contract Disputes Act (“CDA”). These proposed rules indicate that the Board wishes to: simplify and modernize access to the Board, clarify certain rules, and increase conformity between its rules and the Federal Rules of Civil Procedure (“Federal Rules”). Our key takeaways are below, and a side-by-side comparison between the Board’s current and proposed rules can be found here. Interested parties may submit comments by May 29, 2018. Continue Reading

Key Takeaways From The “New York Buy American Act” And Beyond

By Justin Ganderson, Scott A. Freling and Sandy Hoe on April 4, 2018 Posted in Country of Origin, State and Local Procurements

[This article was originally published in Law360 and has been modified for the blog.]

This was not an April Fools’ Day joke: The New York Buy American Act (“NY BAA”) went into effect on April 1, 2018. Signed by Governor Andrew M. Cuomo in December 2017 and championed by state legislators on both sides of the aisle, the NY BAA amends the existing domestic content restrictions in Section 146 of the N.Y. State Finance Law and Section 2603-a of the N.Y. Public Authorities Law by adding another layer of “Buy American” requirements focused on structural iron and structural steel products used in certain construction projects.

Although Governor Cuomo has noted that this new law is intended “to support hardworking men and women, revitalize infrastructure across the state, bolster the strength of our manufacturing industries and cement our status as a global economic leader” – a sentiment in step with President Trump’s stated “Buy American” policy – the economic impact of this legislation remains to be seen. As will be discussed, this set of requirements is focused on only two categories of items (structural iron and structural steel) used on a specific set of construction projects (roads and bridges) that will be awarded by certain New York agencies or authorities during a two-year window.

Notwithstanding, the NY BAA is a noteworthy development because it further reinforces the general rallying cry behind “Buy American.” Most importantly, this new law serves as a reminder to contractors that an already cumbersome regime of federal and state domestic preferences will continue to remain complex.

Fraudulent SAM Accounts Lead to More Complicated SAM Registration Requirements

By Scott A. Freling and Alexander Hastings on April 3, 2018 Posted in Commercial Items, Government Contracts Regulatory Compliance, Uncategorized

GSA recently announced it is supporting an Inspector General investigation into alleged, third-party fraudulent activity in the System for Award Management (“SAM”). The GSA announcement suggests that fraudulent SAM accounts may have been used to divert certain federal payments to unauthorized bank accounts. The announcement does not elaborate on the scope of potentially impacted entities or the amount of misdirected payments at issue. GSA has advised impacted entities to validate their SAM registration and confirm their financial information. Although GSA has indicated it has or will reach out to impacted entities, contractors would be well advised to confirm independently the accuracy of their current SAM registration.

If Shulkin Didn’t Resign, Who Runs the VA Until a New Secretary Is Confirmed? A Vacancies Act Puzzle

By Susan B. Cassidy, Jennifer Plitsch, Michael Wagner and Evan R. Sherwood on April 3, 2018 Posted in Government Contracts Regulatory Compliance, Health Care Contracting, Multiple Award Schedule Contracting, Procurement Policy, Uncategorized

Recent news reports have raised a substantial question about who has authority to run the Department of Veterans Affairs (“VA”) in the wake of Dr. David Shulkin’s departure from the agency. According to the White House, Dr. Shulkin resigned. Meanwhile, Dr. Shulkin himself has publicly insisted that he did not resign and was instead fired.

This inconsistency sets up a potential dispute over whether, under the Federal Vacancies Reform Act of 1998 (“Vacancies Act”), President Trump had the authority to appoint Robert Wilkie, the Undersecretary of Defense for Personnel & Readiness, to serve as Acting Secretary of the VA.

As a result, contractors doing business with the VA have found themselves confronted with a series of knotty questions about the impact this uncertainty may have on the VA’s procurement priorities and actions.

GSA Unveils Plan for Commercial Online Shopping Portal

By Susan B. Cassidy, Jennifer Plitsch, Michael Wagner and Evan R. Sherwood on March 20, 2018 Posted in Commercial Items, Multiple Award Schedule Contracting

Following instructions from Congress to create a new online shopping system leveraging existing commercial practices, the General Services Administration (“GSA”), in coordination with the Office of Management and Budget (“OMB”), has released an implementation plan (“Plan”) to begin e-commerce purchases by 2019. As discussed in a previous blog post, GSA’s Plan is a first step toward implementing Section 846 of the National Defense Authorization Act for FY 2018, which requires GSA to develop “e-commerce portals” – essentially online shopping sites – for commercially available off-the-shelf (“COTS”) item procurements.

Oregon HB 4005: New Reporting Requirements for Drug Manufacturers, Health Insurers

By Stefanie Doebler, Jennifer Plitsch, Julia Post, Anna D. Kraus and Pierre Hines on March 16, 2018 Posted in Health Care Contracting, State and Local Procurements

On Tuesday, March 13, 2018, Oregon Governor Kate Brown signed into law House Bill 4005 (HB 4005), which imposes substantial new state reporting requirements on pharmaceutical manufacturers regarding drug pricing, including details on manufacturer-sponsored patient assistance programs. HB 4005 also imposes new reporting requirements on health insurers and establishes a temporary task force charged with developing “a strategy to create transparency for drug prices across the entire supply chain of pharmaceutical products.”[1]

The Long-Standing TAA “Substantial Transformation” Standard for Drug Products is Challenged at the Court of International Trade

By Jennifer Plitsch, Alexander Hastings and Ian Brekke on March 16, 2018 Posted in Commercial Items, Country of Origin, Health Care Contracting

A generic pharmaceutical distributor, Acetris Health, LLC, has challenged the Final Determination of U.S. Customs and Border Protection (“Customs”) that Acetris’ generic prescription drug, Rosuvastatin Calcium Tablets (“Rosuvastatin”), is a product of India, the place where the active pharmaceutical ingredient (“API”) is produced. If successful, the challenge in the U.S. Court of International Trade (“CIT”) could have a meaningful impact on decisions about where to manufacture API for the very broad range of drug products sold to the U.S. Government.

NIST Seeks to Assist Contractors in Assessing SP 800-171 Compliance

By Susan B. Cassidy and Patrick Stanton on March 12, 2018 Posted in Cybersecurity, Government Contracts Regulatory Compliance, Information Technology Contracting

Late last month, the National Institute of Standards and Technology (“NIST”) released a set of documents for public comment that are aimed at helping contractors assess and implement compliance with NIST Special Publication (“SP”) 800-171, which establishes the standards for protecting Covered Defense Information (“CDI”), among other forms of Controlled Unclassified Information (“CUI”). First, NIST released an updated final public draft of SP 800-171A, Assessing Security Requirements for Controlled Unclassified Information. Second, NIST released templates for contractor system security plans (“SSPs”) and plans of action and milestones (“POAMs”). While neither finalized nor mandatory, these documents provide useful guidance for contractors struggling with SP 800-171 compliance.

DHS Cybersecurity Legislation Advances Through Capitol Hill

By Raymond Biagini, Susan B. Cassidy and Calvin Cohen on March 9, 2018 Posted in Cybersecurity, SAFETY Act

Earlier this week, both chambers on Capitol Hill took steps that would increase the Department of Homeland Security’s (DHS) role in the area of cybersecurity. On the Senate side, the Senate Homeland Security and Governmental Affairs Committee approved a DHS reauthorization bill that included amendments to rename and reorganize the DHS National Protection and Programs Directorate (NPPD), to increase protections for certain personally identifiable information (PII), and to emphasize the need for cybersecurity research. On the House side, the House Homeland Security Committee approved the Cyber Incident Response Teams Act, which would establish teams within DHS devoted to cyber incident response.