Archives: Defense Industry

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What’s in a Brand Name? DoD to Limit Use of “Brand Name or Equal” Contract Competitions

The Department of Defense (“DoD”) has proposed a new rule limiting the use of “brand name or equal” contract competitions, calling on contracting officers to publicly justify their need for a brand name-type product before issuing a solicitation.  The rule would implement Section 888(a) of the National Defense Authorization Act of 2017, which directed the … Continue Reading

“Economic Security Is National Security”: Key Takeaways from the Defense Industrial Base Report

(This article was originally published in Law360 and has been modified for this blog.) Peter Navarro, assistant to the president for trade and manufacturing policy, recently offered in a New York Times op-ed that “[a] strong manufacturing base is critical to both economic prosperity and national defense.” The Trump Administration’s maxim that “economic security is … Continue Reading

How Well Do You Know Your Supply Chain? New Policy Developments Affect Defense and Security Contractors

This post first appeared on Covington’s Global Policy Watch blog on September 7, 2018 Generating and sustaining the United States’ global economic and military superiority over more than the last half century has depended on a dominant U.S. global economic position and perpetual technological innovation. The United States has increasingly relied on a global industrial … Continue Reading

2018 DoD Cyber Strategy: The DoD Defends Forward While the DIB Must Defend its Cyber Practices

The Department of Defense (“DoD”) recently released the summary of its cyber strategy for 2018.  The 2018 DoD Cyber Strategy, which replaces the DoD’s 2015 cyber strategy, is focused broadly on “defending forward,” shaping day-to-day competition, and preparing for conflict.  But the strategy includes items that are sure to be of interest to contractors and … Continue Reading

Takeaways From DoD’s Proposed Changes to Commercial Item Contracting

[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

NIST to Host CUI Information Security Workshop

The National Institute of Standards and Technology (NIST), in coordination with the Department of Defense (DoD) and the National Archives and Records Administration (NARA), will host a Workshop providing an overview of Controlled Unclassified Information (CUI) on October 18, 2018. The agenda for the Workshop shows a full day of panels, including those addressing DoD’s “Safeguarding Covered Defense Information … Continue Reading

Covington Artificial Intelligence Update: Department of Defense Establishes Joint Artificial Intelligence Center

In a memorandum issued June 27, 2018, Deputy Secretary of Defense Patrick Shanahan ordered the establishment of the Joint Artificial Intelligence Center (“JAIC”) within DoD.  The JAIC will report to DoD Chief Information Officer (“CIO”) Dana Deasey and has the “overarching goal of accelerating the delivery of AI-enabled capabilities, scaling the Department-wide impact of AI, … Continue Reading

Senate Largely Leaves Bid Protests Alone in Passed Version of FY 2019 NDAA After Threatening Major Revisions

For the first time in several years, the version of the FY 2019 National Defense Authorization Act (NDAA) that just passed the Senate does not contain any major reforms to limit bid protests.  But the bill the Senate sent to the conference committee process does contain two provisions aimed at bid protests.  Although they are … Continue Reading

Waiting For the Final Government Audit May Be Too Late

In a case of first impression, a Court of Appeals has held that a government subcontractor’s claim for reimbursement of its actual indirect costs was time-barred. Fluor Fed’l Solns. LLC v. PAE Applied Techs, LLC, No. 17-1468, 2018 WL 1768233 (4th Cir. Apr. 12, 2018) (per curiam) (unpublished). It is the first case to directly … Continue Reading

DoD Seeks Streamlined Procurements of Innovative Technologies – Other Transaction Agreements and the Commercial Solutions Opening Pilot Program

The Department of Defense (DoD) has once again emphasized its willingness to engage with commercial companies and other non-traditional contractors to try to expedite and simplify its procurement of innovative technologies. In particular, the Defense Information Systems Agency (DISA) indicated that it plans to enter directly into Other Transaction Authority (OTA) agreements, and DoD issued a … Continue Reading

Senate Armed Services Committee Proposes Expansive but Unclear Software Review Provisions

As the Senate approaches the end of its debate on the National Defense Authorization Act for Fiscal Year 2019, provisions of the bill regarding access to and review of information technology code deserve close attention.  These sections, if enacted, would significantly impact Department of Defense contractors and also would affect matters associated with investments subject … Continue Reading

Any Questions? : Department of Defense Implements FY 2018 NDAA Requirement for Post-Debriefing Q&A Process

This past March marked the beginning of a more fulsome required debriefing process for defense contracts.  The Director of Defense Procurement and Acquisition Policy (“DPAP”) issued a class deviation memorandum, effective March 22, 2018, requiring contracting officers to: (1) provide unsuccessful offerors an opportunity to submit additional questions within two days after receiving a debriefing; … Continue Reading

DoD Final Rule to Promote Post-Award Disclosure of Defective Pricing Arms Contractors with Potentially Impactful Information

On May 4, 2018, the Department of Defense (“DoD”) issued a final rule amending the Defense Federal Acquisition Regulation Supplement (“DFARS”) to state that, in the interest of promoting voluntary disclosures of defective pricing identified by contractors after contract award, DoD contracting officers have more discretion to determine the scope of the involvement of the … Continue Reading

Fourth Circuit Embraces Expansive View of Derivative Sovereign Immunity for Government Contractors

Last week, the Fourth Circuit Court of Appeals affirmed a lower court decision to dismiss a Telephone Consumer Protection Act (“TCPA”) lawsuit against General Dynamics Information Technology, Inc. (“GDIT”), on the basis that GDIT was immune from suit as a government contractor under what is known as the “Yearsley doctrine.”  Craig Cunningham v. GDIT, No. … Continue Reading

Fourth Circuit Further Defines Scope of Contractor Risks in the FMS Sales Context

The Court of Appeals for the Fourth Circuit recently published a decision that expanded on its prior Trimble ruling that a foreign government customer cannot sue a U.S. contractor in the Foreign Military Sales (“FMS”) context (at least in U.S. courts).  In BAE Sys. Tech. Solution & Servs., Inc. v. Republic of Korea’s Def. Acq. … Continue Reading

DIUx and DoD Other Transaction Prototype Agreements: The Fast Track to DoD Funding

On February 7, the Department of Defense (DoD) awarded REAN Cloud a contract valued at up to $950 million to work with defense agencies to migrate existing applications to commercial cloud solutions. The award is of significant relevance to efforts currently underway in connection with the upcoming DoD Joint Enterprise Defense Infrastructure—or “JEDI”—procurement. However, the … Continue Reading

Third Time Around: Inconsistencies Persist with Final DFARS Commercial Items Rule

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

DoD Implements Streamlining Awards for Innovative Technology Projects

On January 9, 2018, Department of Defense (“DoD”) issued Class Deviation 2018-O0009, designed to reduce barriers to entry for innovative entities through streamlining the awards process for research and development contracts. This Class Deviation allows for the use of simplified acquisition procedures and excuses certain procurement obligations when DoD awards contracts and subcontracts valued at … Continue Reading

RAND Report Concludes That Protests of Department of Defense Procurements Are Rare, Effective

Last week, the RAND Corporation published a report entitled “Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, And Drivers.”  In it, RAND analyzed the prevalence and impact of bid protests of U.S. Department of Defense (“DoD”) acquisitions, and concluded that DoD bid protests are both “exceedingly uncommon” and, on the whole, … Continue Reading

Senate Democrats Continue Efforts to Strengthen “Buy American” Requirements

Over the last few months, various Senate Democrats have pushed to strengthen “Buy American” requirements applicable to Federal Government procurements. This month is no different. On December 6, 2017, Senator Chris Murphy (D-CT) reintroduced the 21st Century Buy American Act (S.2196), which aims to “strengthen existing Buy American standards to ensure that the U.S. government … Continue Reading

DoD Class Deviations Allow for Greater Contracting Flexibility in Times of Crisis

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

Senate Democrats Notch a “Buy American” Victory

As we reported late last month, one-third of the Senate Democratic caucus doubled down on efforts to keep “Buy American” protections intact for certain defense items. Now Senate Democrats are declaring a “Buy American” victory as the FY 2018 NDAA conference report revealed that some of these protections will remain.… Continue Reading

DoD Issues Further Guidance on Implementation of DFARS Cyber Rule

On September 21, 2017, the Director of the Defense Pricing/Defense Procurement and Acquisition Policy (DPAP) issued guidance to Department of Defense (DoD) acquisition personnel in anticipation of the December 31, 2017 date for contractors to implement the security controls of NIST Special Publication (SP) 800-171.  The guidance outlines (i) ways in which a contractor may … Continue Reading
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