Covington Team

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NIST Releases Fifth Revision of Special Publication 800-53

The National Institute of Standards and Technology (“NIST”) released on August 15, 2017 its proposed update to Special Publication (“SP”) 800-53. NIST SP 800-53, which was last revised in 2014, provides information security standards and guidelines, including baseline control requirements, for implementation on federal information systems under the Federal Information Systems Management Act of 2002 … Continue Reading

A Summary of the Recently Introduced “Internet of Things (IoT) Cybersecurity Improvement Act of 2017”

On August 1, 2017, a bipartisan group of Senators introduced legislation (fact sheet) that would establish minimum cybersecurity standards for Internet of Things (“IoT”) devices sold to the U.S. Government. As Internet-connected devices become increasingly ubiquitous and susceptible to evolving and complex cyber threats, the proposed bill attempts to safeguard the security of executive agencies’ … Continue Reading

ASBCA Shoots Down DCAA Overreach on Responsibility to Manage Subcontractors

A prime contractor is responsible for managing its subcontractors, but what exactly does that require? In a recent decision, the answer of the Armed Services Board of Contract Appeals was: not nearly as much as DCAA claimed. In Lockheed Martin Integrated Sys., Inc., ASBCA Nos. 59508, 59509, the Board ruled on a Government claim seeking … Continue Reading

Updated OMB Breach Response Policy Includes Required Breach-Related Provisions for Federal Agency Contracts

On Monday, our colleague Caleb Skeath posted on Inside Privacy an engaging article that discusses the new Office of Management and Budget policy setting forth minimum standards for federal agencies in preparing for and responding to breaches of personally identifiable information (PII) and the expected contractual changes that agencies will impose on contractors whose systems … Continue Reading

ASBCA Addresses CDA Jurisdiction Over Claims Involving Contractor Fraud

The Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) recently issued an opinion addressing several important, and controversial, topics of interest to government contractors.  The lengthy opinion addressed key issues related to the Board’s jurisdiction over government claims and affirmative defenses based on alleged contractor fraud, the Contract Disputes Act (“CDA”) statute of limitations, … Continue Reading

The CBCA Chews Up Agency’s Erroneous Allegation that Contractor Is Getting a ‘Second Bite at the Apple’

At the intersection of bid protests and claims, in Optimum Services, Inc. v. Department of the Interior, CBCA 4968 (May 2, 2016), the Civilian Board of Contract Appeals (“CBCA” or “Board”) recently encountered the question of whether a decision by the Government Accountability Office (“GAO”) can preclude a contractor from later maintaining an appeal of … Continue Reading

DoD Rule Would Help Contractors Protect Their Technical Data Rights in Commercial Items Used in Major Systems

The Department of Defense (DoD) is considering a proposed rule that would help contractors protect their technical data rights in privately-developed commercial items that are incorporated into major systems, including major weapons systems. The proposed rule likely will be welcomed news to the defense industry, which has long sought to defend contractors’ intellectual property rights … Continue Reading

FTC and DoJ Question DoD’s Proposed National Security Trump Card

In an apparent reaction to recent efforts by the Department of Defense to obtain authority to approve mergers in the defense industry on national security grounds, the Department of Justice and the Federal Trade Commission today issued a Joint Statement explaining the standard of review that the antitrust agencies use when evaluating proposed transactions in … Continue Reading

Defense Contractors Must Share (Even More) Information About Their IR&D Projects Before DoD Will Reimburse IR&D Costs

The Department of Defense (DoD) will require contractors to disclose more information about their Independent Research & Development (IR&D) projects before the Government will reimburse IR&D costs, the Pentagon said in a proposed rule issued earlier this week.  The proposed rule, which was previewed in an August 2015 white paper, is the latest sign that … Continue Reading

FAR Council Proposes to Disallow Costs of Congressional Investigations That Result From Adverse Legal and Administrative Proceedings

On February 17, 2016, the FAR Council proposed a rule that would add a new category of unallowable costs to FAR Part 31 — costs of responding to an inquiry by Congress, if that inquiry results from a judicial or administrative proceeding in which the contractor is found criminally liable, found liable for civil fraud, … Continue Reading

DoD To Reconsider How It Evaluates Proposed IR&D Projects In Awarding Government Contracts

The Department of Defense (DoD) is considering a proposed rule that would prevent defense contractors from promising future Independent Research & Development (IR&D) investments as a way to gain a competitive price advantage in DoD procurements.  Although DoD’s rulemaking is in its early stages, defense contractors with substantial IR&D programs should monitor these developments closely, … Continue Reading

FAR Council Adds New Layer to Small Business Subcontracting Rules

On January 20, 2016, the FAR Council published a proposed rule calling for changes to FAR Parts 19 and 52 that address payments to small business subcontractors.  The proposed changes, which are intended to implement regulations adopted by the Small Business Administration (SBA) in 2013, will expand the range of small business-related obligations imposed on … Continue Reading

No Money for Nothing — Eighth Circuit Limits Relators’ Ability to Recover a Share of Government Settlements of Qui Tam Suits

Following an 8-2 en banc decision issued by the United States Court of Appeals for the Eighth Circuit earlier this month, potential relators may think twice before bringing their False Claims Act (“FCA”) qui tam suits in the Eighth Circuit.  In Rille v. PricewaterhouseCoopers LLP, No. 11-3514 (8th Cir. Oct. 5, 2015), the Court vacated a … Continue Reading

National Security M&A Trump Card for DoD?

The Under Secretary of Defense for Acquisition, Technology, & Logistics, Frank Kendall, made seismic remarks last week announcing that the U.S. Department of Defense (DoD) will seek independent authority from Congress to approve or disapprove M&A transactions in the defense industrial base for national security reasons, creating potential shock waves among the companies in that … Continue Reading

DoD IR&D Projects May Not Be So “Independent” For Long

Last week, the Department of Defense (DoD) issued a white paper announcing that, beginning in FY2017, it will require contractors to notify DoD before undertaking any new Independent Research & Development (IR&D) projects. Contractors also will be required to inform DoD of “the results from these investments.” The white paper acknowledges that these requirements are a departure … Continue Reading

Updated DoD IG Guidance Signals New Enforcement Emphasis for DCAA Auditors

The Department of Defense Office of Inspector General (“DoD IG”) appears poised to place new emphasis on the pursuit of fraud cases in certain key enforcement areas, at least according to updated agency guidance recently published online. Earlier this month, the DoD IG quietly revised its “Auditor Fraud Resources” page, intended to serve as guidance … Continue Reading

COFC: Contractor Stuck With Bill For Substantially Higher Than Expected Costs Under Firm-Fixed Price Requirements Contract

A recent Court of Federal Claims decision serves as a reminder to contractors of the perils of firm-fixed-price contracts in unpredictable environments. The case, Agility Defense & Government Services, Inc. v. United States, involved an “unusually high-risk” firm-fixed-price requirements contract between Agility Defense & Government Services (“Agility”) and the Defense Reutilization Management Services (“DRMS”).  Under … Continue Reading

Contractors (Respectfully) Request that the President Stop Issuing Executive Orders Focused on Contractors

“[W]e respectfully request that no further presidential directives primarily focused on government contractors be issued for the foreseeable future,” wrote four government contractor associations in a letter to the White House dated August 3, 2015. The letter was released publicly on Tuesday, August 11, 2015, and signed by representatives of the Aerospace Industries Association, the … Continue Reading

DoD Issues Three Cloud Computing and Security Documents for Public Comment

On July 24, 2015, the Defense Information Security Agency (“DISA”) issued three draft documents (available here for download) concerning the adoption of secure cloud computing systems by the Department of Defense (“DoD”).  DISA is tasked with developing DoD’s security requirements guides for cybersecurity policies, standards, architectures, security controls, and validation procedures.  Here, the just-released, draft … Continue Reading

New Zealand to Join WTO Government Procurement Agreement, Will Become a “Designated Country” Under the TAA

Effective August 12, 2015, New Zealand will become the 45th country to join the World Trade Organization’s (“WTO”) Government Procurement Agreement (“GPA”).  As we have previously discussed, this plurilateral agreement promotes open, fair, and transparent competition in the government procurement markets of participating countries.  Importantly, the GPA requires member countries to treat suppliers of goods … Continue Reading

D.C. Circuit Creates Circuit Split Regarding Jurisdictional Nature of the False Claims Act’s First-to-File Rule

In the recently decided U.S. ex rel. Heath v. AT&T Inc., No. 14-7094 (June 23, 2015), the D.C. Circuit rejected the general consensus of the circuit courts and held that the False Claims Act’s (“FCA”) first-to-file rule is not jurisdictional.  This decisions creates a circuit split between the D.C. Circuit and the First, Fourth, Fifth, … Continue Reading

Supreme Court grants certiorari in VA procurement case

Last week the Supreme Court granted certiorari to hear arguments in Kingdomware Technologies, Inc. v. United States, Docket Number 14-916, an ongoing dispute over whether the Veterans Benefits, Health Care, and Information Technology Act (“the Act”), 38 U.S.C. § 8127, requires the Department of Veterans Affairs’ (“VA”) to set aside all of its procurements for … Continue Reading

An Acceptable Proposal: Set Appropriately High, Clear Standards for DoD’s Auditors and LPTA Competitions

On April 30, 2015, the House Armed Services Committee passed H.R. 1735, the National Defense Authorization Act for Fiscal Year (“FY”) 2016, with an amendment (Log #325rl) that could shape how the Department of Defense (“DoD”) acquires audit and audit readiness services for its Financial Improvement and Audit Readiness (“FIAR”) Plan. Under the FIAR Plan, … Continue Reading

College’s Falsification of Grades and Attendance Records May Trigger FCA Liability

On Wednesday, April 29, the Eighth Circuit issued an opinion holding that evidence of a for-profit college’s falsification of grades and attendance records may support a claim that it “fraudulently induced the Department of Education [“DOE”] to provide [it] funds,” and was thus liable under the False Claims Act (“FCA”).  Specifically, the claim alleged that, … Continue Reading
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