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Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

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

On March 7, 2024, the Department of Transportation’s (“DOT”) Federal Highway Administration (“FHWA”) announced a proposed rule to rescind a longstanding general waiver of Buy America requirements for manufactured products (the “Manufactured Products Waiver”).  If finalized, this would be a major change for the agency, reversing a policy that has been in place for more than 40 years.

FHWA has imposed Buy America requirements for domestic iron and steel on its projects since 1978 (see 23 U.S.C. § 313; 23 CFR § 635.410), but in 1983, the agency determined that it was in the public interest to waive the requirement as to manufactured products based on the agency’s belief that manufactured products were not used in federal highway projects in sufficient quantities to have an effect on the overall cost of a project and therefore did not require Buy America protections.  That general waiver has been in place ever since.

This change in policy comes in the wake of the 2021 Infrastructure Investment and Jobs Act’s Build America, Buy America (“BABA”) provisions, which expanded Buy America coverage broadly in federal financial assistance programs for infrastructure.  BABA requires that all steel, iron, construction materials, and manufactured products used in such products be “produced in the United States.”  BABA also discourages the use of general applicability waivers like FHWA’s Manufactured Products Waiver and required review of existing waivers. 

FHWA sought comments on its longstanding manufactured products waiver in March 2023 and received over 9,400 comments from the public.  Commenters included manufacturers, labor organizations, construction contractors, industry associations, State departments of transportation, and even members of Congress.  Based on a consideration of this feedback and in recognition of other domestic content policies, including Executive Order 14005, “Ensuring the Future Is Made in All of America by All of America’s Workers,” FHWA is proposing to discontinue its Manufactured Products Waiver and modify its regulations to include domestic content requirements for manufactured products.Continue Reading Federal Highway Administration Announces Proposed Rule Ending Longstanding Buy America Waiver for Manufactured Products

On February 15, 2024, the Department of Defense (“DOD”) issued a final rule that increases the domestic content requirements for defense procurements. 

The new rule amends the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement Executive Order 14005 (“EO”).  The EO was intended to strengthen the requirements of the Buy American Act (“BAA”) by, among

This is the thirty-third in 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

This is the thirty-second in 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 2021 through November 2023.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during December 2023.  It also describes key actions taken during December 2023 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 December 2023 Developments Under President Biden’s Cybersecurity Executive Order, National Cybersecurity Strategy, and AI Executive Order

In keeping with the trend of increased attention on the False Claims Act’s (“FCA”) qui tam provisions, the Second Circuit recently weighed in on a seeming conflict between the statute and the relator’s obligations under the Federal Rules of Civil Procedure (“FCRP”). Under Rule 4(m) of the FRCP, the court generally must dismiss a complaint if the plaintiff fails to serve the defendant with a complaint and summons within 90 days of filing. Fed. R. Civ. P. 4(m). But a relator bringing suit under the qui tam provisions of the FCA may not serve a defendant until the complaint is unsealed and “until the court so orders.” 31 U.S.C. § 3730(b)(2). In cases brought under the qui tam provisions of the FCA, this creates the potential for questions regarding when the Rule 4(m) service-of-process clock begins to tick.

These questions seldom arise because courts ordinarily unseal a relator’s complaint and simultaneously order the relator to serve the defendant. In which case, the express order to serve the defendant plainly triggers the service-of-process clock under Rule 4(m). But what if the court unseals the relator’s complaint and then delays (or never issues) the order to serve the defendant? This was the question before the Second Circuit last month in U.S. ex rel. Weiner v. Siemens AG, No. 22-2656, 2023 WL 8227913, at 3 (2d Cir. Nov. 28, 2023).Continue Reading Tick-tock, the Court Starts the Clock: Deconflicting the FCA and Rule 4(m) of the FRCP

On October 3, 2023, the Federal Acquisition Regulation (FAR) Council released two new proposed cybersecurity rules. The first of the two, covered in a separate blog, is titled “Cyber Threat and Incident Reporting and Information Sharing,” and adds new requirements to the cybersecurity incident reporting obligations of federal contractors. The second rule, titled “Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems,” covers cybersecurity contractual requirements for unclassified Federal information systems.

Both rules arise from Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”). We have covered developments under this Executive Order as part of a series of monthly posts. 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 November 2023. This blog describes key requirements imposed by the proposed “Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems” rule (the “Proposed Standardizing Rule”)

Proposed Cybersecurity Requirements for Unclassified Federal Information Systems

As directed by the Cyber EO, the Proposed Standardizing Rule would establish cybersecurity policies, procedures, and requirements for contractors that develop, implement, operate, or maintain Federal Information Systems (“FIS”). Under the rule, a FIS is defined as “an information system used or operated by an agency, by a contractor of an agency, or by another organization on behalf of an agency.”Continue Reading Proposed FAR Rule: “Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems”

This is the thirty first in 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 actions taken by various government agencies to implement the Cyber EO from June 2021 through October 2023.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during November 2023.  It also describes key actions taken during November 2023 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 November 2023 Developments Under President Biden’s Cybersecurity andArtificial Intelligence Executive Orders and National Cybersecurity Strategy

Through the Infrastructure Investment and Jobs Act (“IIJA”) and the Inflation Reduction Act, the Department of Energy (“DOE”) has awarded billions of dollars to a series of new infrastructure and clean energy programs.  The scope and size of these programs have, in turn, attracted scrutiny from the DOE’s Office of Inspector General (“OIG”), as evidenced most recently by an OIG Special Report (“Report”) detailing what the OIG characterized as “Management Challenges” at DOE.  The Report is notable for several reasons, but most striking is its sharp criticism of DOE’s apparent reluctance to fully accede to the OIG’s request for vast quantities of agency and contractor data in connection with preventative fraud detection efforts.  This blog will cover the key findings of this Report and the most important takeaways for current and prospective DOE implementing partners.Continue Reading Department of Energy Office of Inspector General Management Challenges Report: Key Findings and Insights