This is part of an ongoing series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and subsequent blogs described the actions taken by various government agencies to implement the Cyber EO from June 2021 through May 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during June 2024.  It also describes key actions taken during May 2024 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, national security, and software supply chain security.

Continue Reading June 2024 Developments Under President Biden’s Cybersecurity Executive Order, National Cybersecurity Strategy, and AI Executive Order

This is part of an ongoing series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and subsequent blogs described the actions taken by various government agencies to implement the Cyber EO from June 2021 through April 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during May 2024.  It also describes key actions taken during May 2024 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, national security, and software supply chain security.

Continue Reading May 2024 Developments Under President Biden’s Cybersecurity Executive Order, National Cybersecurity Strategy, and AI Executive Order

A recent decision by the Armed Services Board of Contract Appeals found the Navy liable to a commercial crane manufacturer for delay damages. In Konecranes Nuclear Equip. & Servs., LLC, ASBCA No. 62797, 2024 WL 2698011 (May 7, 2024), the Board reiterated the age-old lesson—you have to read the contract—and provided guidance about how to calculate the delay damages. Beyond that, the Board found apparent inspiration for part of its holding in an unlikely source: a classic song by the Rolling Stones.

Continue Reading You Can’t Always Get What You Want: ASBCA Channels Rolling Stones and Awards Contractor $4.9 Million in Delay Damages

The Federal government may soon adopt new rules for when indefinite delivery contracts and orders are subject to the Cost Accounting Standards. According to a June 18, 2024 notice, the CAS Board is considering multiple different approaches to this issue, and it has invited comments from the public.

Continue Reading Wondering Whether Your IDIQ Award Will Be Subject to CAS?  New Rules May Be Coming Soon from the CAS Board.

On June 7, 2024, the Federal Circuit issued a major decision addressing bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”).  In Percipient.ai, Inc. v. United States, the court found that COFC has jurisdiction to hear a protest challenging a matter of contract administration — even where the matter arose in connection with a task order — and articulated a new test for standing applicable to the facts presented in that case. 

Continue Reading Percipient.ai, Inc. v. U.S.:  Matters of Contract Administration Can Be Fair Game For COFC Protests, Even When They Involve a Task Order

This is part of an ongoing series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and the subsequent blogs described the actions taken by various government agencies to implement the Cyber EO from June 2021 through March 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during April 2024.  It also describes key actions taken during April 2024 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, national security, and secure software.

Continue Reading April 2024 Developments Under President Biden’s Cybersecurity Executive Order, National Cybersecurity Strategy, and AI Executive Order

Recently, the Department of Labor (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”) unveiled new guidance regarding the use of automated systems and artificial intelligence (collectively referred to as “AI”) in the workplace.  This guidance was issued as a part of a series of actions that the Biden administration has taken to address AI in various contexts and industries. 

The OFCCP guidance follows President Biden’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, which directed the Secretary of Labor to “publish guidance for Federal contractors regarding nondiscrimination in hiring involving AI and other technology-based hiring systems.”  Specifically, the guidance addresses how federal prime contractors and subcontractors should approach employment nondiscrimination risks and best practices when using AI in the context of the laws that OFCCP enforces.

Continue Reading Office of Federal Contract Compliance Programs Releases New Guidance on the Use of Artificial Intelligence in Federal Contracting Employment Processes

On May 16, 2024, the Internal Revenue Service (“IRS”) and Department of Treasury (“Treasury”) published Notice 2024-41 (the “2024 Guidance”), which provides new guidance for securing the domestic content bonus credit established by the Inflation Reduction Act (“IRA”).  As described in more detail below, the 2024 Guidance builds on the existing framework contained in Notice 2023-38 (the “2023 Guidance”), which was released last May.  Most notably, the 2024 Guidance expands the range of applicable projects subject to the safe harbor in the 2023 Guidance and adds a “New Elective Safe Harbor” to determine cost percentages for the domestic content calculation in solar, onshore wind, and battery storage projects.

Continue Reading Treasury and IRS Release New Guidance on Inflation Reduction Act Domestic Content Bonus Credit

Today, the Federal Acquisition Regulatory Council (“FAR Council”) released an Advance Notice of Proposed Rulemaking (the “ANPRM”) describing the agencies’ plan to implement Section 5949 of the National Defense Authorization Act (“NDAA”) for FY 23 (Pub. L. 117-263).

Section 5949 prohibits the Federal Government from procuring certain semiconductor parts, products, or services traceable to named Chinese companies and potentially other foreign countries of concern.  To that end, the ANPRM invites public comment on the proposed contents of an implementing FAR clause, to take effect December 23, 2027.

As discussed below, the FAR Council proposed applying the regulations broadly to all solicitations and contracts, including commercial item and commercially available off-the-shelf (“COTS”) contracts, subject only to a limited waiver.  Although not set out in the statute, the clause would require contractors to conduct a “reasonable inquiry” into their supply chain to detect potential violations.  It would also require both disclosure and the taking of corrective action in the event that nonconforming products or services are discovered. 

More details are below, and our previous coverage of Section 5949 is available here.

Continue Reading Chips on the Table: FAR Council Releases Advance Notice of Proposed Rulemaking to Implement Prohibition on Purchase and Use of Certain Semiconductors

This is part of a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and the subsequent blogs  described the actions taken by various government agencies to implement the Cyber EO from June 2021through February 2024.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during March 2024.  It also describes key actions taken during March 2024 to implement President Biden’s Executive Order on Artificial Intelligence (the “AI EO”), particularly its provisions that impact cybersecurity, secure software, and federal government contractors. 

Continue Reading March 2024 Developments Under President Biden’s Cybersecurity Executive Order, National Cybersecurity Strategy, and AI Executive Order