Last month, the Federal Circuit weighed in on a largely-overlooked provision in the Federal Acquisition Streamlining Act (“FASA”) that requires federal agencies, to the maximum extent practicable, to procure commercially available goods and services to meet their needs. In the case — Palantir USG v. United States — the court affirmed the decision by the … Continue Reading
[This article was originally published in Law360 and has been modified for the blog.] Over the summer, pursuant to Section 874 of the FY 2017 National Defense Authorization Act (“NDAA”)[1], the Department of Defense (“DoD”) issued a proposed rule[2] to exclude the application of certain laws and regulations to the acquisition of commercial items, including … Continue Reading
On July 25, the GSA’s Office of Inspector General (“OIG”) published a report summarizing its audit of the GSA Transactional Data Reporting (“TDR”) pilot program. That ongoing pilot program, which we have covered previously and have been tracking since the beginning, allows participating Federal Supply Schedule (“FSS”) contract-holders to report government-sales data each month, in … Continue Reading
[Updated August 13, 2018] If an agreement qualifies as a “subcontract” under a government contract, then it may be subject to certain flow-down, compliance, and reporting requirements. These requirements are intended to protect the government’s interests, and have significant ramifications for contractors, e.g., increasing transaction costs, expanding potential areas of exposure. These compliance obligations and … Continue Reading
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 … Continue Reading
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 … Continue Reading
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”) … Continue Reading
On February 22, 2018, the General Services Administration (GSA) issued a Final Rule to address common commercial supplier agreement terms that it contends are inconsistent with federal law. The purpose of this rule is to streamline negotiations over commercial supplier agreements (“CSAs”), end-user license agreements (“EULAs”), Terms of Sale (“TOSs”) or similar sets of standard … Continue Reading
Few issues have bedeviled the GSA Schedules program as much as the provision of incidental supplies and services under Schedule orders. For years, it has been unclear how such supplies and services are to be purchased and priced, since they are not themselves on Schedule. But now, with GSA’s new Order-Level Materials (“OLM”) rule, GSA … Continue Reading
On January 31, 2018, the Department of Defense (“DoD” or the “Department”) published a final rule regarding commercial item purchasing requirements. Among other key amendments, the final rule modifies the Defense Federal Acquisition Regulation Supplement (“DFARS”) by: (i) formalizing a presumption of commerciality for items that DoD previously treated as commercial; (ii) providing commercial item … Continue Reading
As part of ongoing efforts to create an online marketplace for government purchasers, GSA officials held a public meeting yesterday to discuss potential market structures and legal requirements. A wide range of stakeholders attended the hearing, responding to questions from GSA on issues such as how many online portals should be implemented, who should have … Continue Reading
In an effort to create a new online market for government contracts, the General Services Administration (“GSA”) has invited industry to comment on the development and design of e-commerce portals for commercial procurements. GSA’s request for comments will be published tomorrow, December 15, 2017. This comment period provides a valuable opportunity for contractors to advise … Continue Reading
The Department of Defense (“DoD”) has issued two Class Deviations that provide defense agencies with greater flexibility when procuring in times of crisis. These Class Deviations allow for the use of simplified acquisition procedures and excuse certain procurement obligations when DoD is responding to a cyber-attack or providing relief in support of domestic or international … Continue Reading
In its Report on the National Defense Authorization Act for Fiscal Year 2018, the Senate Armed Services Committee (the “Committee”) included an “Item of Special Interest” directing the DoD to exercise its rights under the Bayh-Dole Act “to authorize third parties to use inventions that benefited from DOD funding whenever the price of a drug, … Continue Reading
On May 11, 2017, the U.S. China Economic and Security Review Commission (“Commission”) issued a Request for Proposal to “to provide a one-time unclassified report on supply chain vulnerabilities from China in U.S. federal information technology (IT) procurement.” Congress established the Commission in 2000 to monitor and report to Congress on the national security implications … Continue Reading
A U.S. District Court recently dismissed a False Claims Act (FCA) qui tam action alleging that numerous GSA Schedule contractors violated their obligations under the Trade Agreements Act (TAA), resulting in the submission of false claims under the “implied certification” theory of FCA liability. As discussed further below, the court’s decision — United States ex rel. Berkowitz … Continue Reading
On January 27, 2017, the Department of Defense (DoD) issued an updated Frequently Asked Questions (FAQ) regarding the application and requirements of DFARS 252.204.7012 Safeguarding Covered Defense Information and Cyber Incident Reporting. Though questions remain regarding various nuances of the rule, the FAQ is a helpful document for those contractors still working on implementation of … Continue Reading
Federal contractors who require employees to sign confidentiality agreements—including those selling only commercial products or in small quantities—need to examine their agreements closely. For the last two years, the government has sought to prohibit confidentiality agreements that restrict employees’ ability to report fraud, waste, or abuse to “designated investigative or law enforcement representative[s]” for federal … Continue Reading
Earlier this month, the Office of Federal Procurement Policy (OFPP) released a proposed Office of Management and Budget (OMB) Circular, Implementing Category Management for Common Goods and Services, which “institutionalizes” category management as the government-wide model for the acquisition of common goods and services. Contractors should be aware of this trend, as it could impact … Continue Reading
We recently wrote about GSA’s new Transactional Data Reporting (“TDR”) pilot program, which requires participating Federal Supply Schedule (“FSS”) contractors to report 11 items of transactional data to GSA each month. The TDR rule also eliminates the requirement to provide a Commercial Sales Practices (“CSP”) format as well as the Price Reductions Clause. As we … Continue Reading
DoD has issued a Final Rule that gives added protections to the technical data of privately developed commercial items incorporated into major systems, including major weapon systems. This rule implements Section 813(a) of the National Defense Authorization Act (NDAA) for Fiscal Year 2016 and modifies 10 U.S.C.§ 2321(f).… Continue Reading
On August 11, 2016, the Department of Defense (“DoD”) published a revised proposed rule to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement sections of the National Defense Authorization Acts for Fiscal Years 2013 and 2016 relating to commercial item acquisitions. This proposed rule replaces the rule that DoD proposed last August and … Continue Reading
Recently, the General Services Administration (“GSA”) issued a proposed rule to codify a class deviation regarding GSA’s approach to common Commercial Supplier Agreement (“CSA”) and End User License Agreement (“EULA”) terms. We have previously addressed the class deviation here and in an article for the Coalition for Government Procurement available here. While the Proposed Rule … Continue Reading
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
