On January 15, 2025, the Federal Acquisition Regulation (“FAR”) Council proposed a new FAR Controlled Unclassified Information (“CUI”) rule (“proposed rule”) to establish uniform requirements for handling CUI with broad applicability to solicitations and contracts across the federal government.

The proposed rule, in development for roughly a decade, represents a…

Continue Reading FAR Council Proposes New FAR CUI Rule

In his first few days in office, President Trump issued several executive orders (“EOs”) and memoranda, many of which may have implications for federal contractors and grant recipients, including the following:Continue Reading President Trump Issues Numerous Executive Orders with Potential Impacts on Federal Contractors and Grant Recipients

On January 14, 2025, the Department of Transportation’s (“DOT”) Federal Highway Administration (“FHWA”) published a final rule ending its longstanding waiver of Buy America requirements for manufactured products (the “Manufactured Products Waiver”) and setting out new standards for the use of domestic content on FHWA-funded infrastructure projects.  As discussed in our previous post, FHWA proposed rescinding its decades-old waiver in March 2024 in accordance with the 2021 Infrastructure Investment and Jobs Act’s Build America, Buy America (“BABA”) focus on expanding Buy America coverage and discouraging the use of general applicability waivers.  The final rule is similar in substance to the proposed rule but adds a staggered implementation period, which will allow contractors additional time to come into compliance.Continue Reading Federal Highway Administration Publishes Final Rule Rescinding Longstanding Buy America Waiver for Manufactured Products

Yesterday, the FAR Council issued a proposed rule that would update the U.S. Government’s approach to organizational conflicts of interest (OCIs).  While the proposed rule is not finalized and may change in response to forthcoming comments from interested parties, the proposed rule contemplates major changes to the FAR’s existing framework in this area.  In this post, we summarize the background leading up to the proposed rule and highlight key areas of proposed change.

Background

Continue Reading The Proposed FAR Rule on OCIs: Big Changes May Be Coming

Since 1986, the little brother to the civil False Claims Act, known as the Program Fraud Civil Remedies Act of 1986 (“PFCRA”), has seen very little use.  Section 5203 of the Fiscal Year 2025 National Defense Authorization Act (“NDAA”) seeks to breathe new life into the law by renaming it…

Continue Reading Congress Attempts to Revitalize the Program Fraud Civil Remedies Act

With the 119th Congress now assembled, Republicans control both the House and Senate, and will control the White House starting on January 20th.  If history is any guide, this change in party control of the White House, plus unified control of Congress by the president’s party, will pave the way for Republicans to deploy the Congressional Review Act (CRA) to overturn a number of regulations issued by the Biden Administration.  When President Trump first took office in 2017, congressional Republicans used the CRA to overturn more than a dozen rules promulgated by the Obama Administration.   Continue Reading Biden Administration Rulemakings at Risk for Congressional Review Act Cancellation in New Congress

This is the first blog in a series covering the Fiscal Year 2025 National Defense Authorization Act (“FY 2025 NDAA”).  This first blog will cover: (1) NDAA sections affecting acquisition policy and contract administration that may be of greatest interest to government contractors; (2) initiatives that underscore Congress’s commitment to strengthening cybersecurity, both domestically and internationally; and (3) NDAA provisions that aim to accelerate the Department of Defense’s adoption of AI and Autonomous Systems and counter efforts by U.S. adversaries to subvert them. …
Continue Reading President Biden signs the National Defense Authorization Act for Fiscal Year 2025

This is part of a series of Covington blogs on the 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…

Continue Reading November 2024 Developments Under President Biden’s Cybersecurity Executive Order and National Cybersecurity Strategy

In what has become an annual tradition, this year’s National Defense Authorization Act (“NDAA”) — just passed by the Senate and sent to the President for signature — contains a provision addressing bid protests at the Government Accountability Office (“GAO”).

Likely of greatest interest to contractors is that Section 885 contains language increasing the dollar threshold for protests of task order awards under a Department of Defense indefinite-delivery, indefinite-quantity (“IDIQ”) contract, from $25,000,000 to $35,000,000.  The increased threshold would further limit the universe of task orders that can be protested under DoD IDIQ contracts. 

Section 885 also requires GAO to prepare a “Proposal for Payment of Costs for Certain Government Accountability Office Bid Protests.”  This provision is likely part of the Department of Defense’s years-long campaign to impose a “loser pays” penalty on protesters in an effort to curb what it says is a problem of frivolous protests — even though GAO’s annual bid protest statistics show that the majority of protests result in relief to the protester, as evidenced by an effectiveness rate of 52%.  DoD’s effort has dated back at least to the Fiscal Year 2018 NDAA, which included an analogous pilot program proposal. More recently, as discussed in our August 21, 2023, post entitled “Should Bid Protest Losers Pay?” Section 804 of the House-enacted NDAA for Fiscal Year 2024 included a pilot proposal for a “loser pays” program.Continue Reading NDAA Increases Threshold for Task Order Protests and Directs Another Study on Whether Losing Protesters Should Pay

On November 15, 2024, the Department of Defense (“DoD”) published a Notice of Proposed Rulemaking (“Proposed Rule”) entitled “Defense Federal Acquisition Regulation Supplement: Disclosure of Information Regarding Foreign Obligations.”  The Proposed Rule would impose new disclosure obligations on “Offeror[s]” (pre-award) and “Contractor[s]” (post-award) that are triggered in certain…

Continue Reading Department of Defense Publishes Notice of Proposed Rulemaking on Disclosure of Computer and Source Code to Foreign Entities