Government Contracts Regulatory Compliance

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

On January 30, 2024, the Federal Acquisition Regulatory Council (“FAR Council”) proposed a new “Pay Equity and Transparency in Federal Contracting” rule for government contractors.  The proposed rule intends to increase race and gender equity for employees of federal prime contractors and subcontractors by prohibiting them from requesting and relying on certain information about job applicants’ compensation history and requiring contractors to disclose compensation rates in job announcements for certain positions.  These requirements would apply to all prime contracts and subcontracts – including for commercial products and services – where the principal place of performance is within the United States, regardless of dollar amount or tier.  The proposed rule is the latest in a number of steps the Biden Administration has taken to address discriminatory pay practices in federal procurement and contracting since announcing an Executive Order on Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency in March 2022. 

The proposed rule’s potential impact and implications for contractors — as well as opportunities to submit comments on the issue — are discussed below.Continue Reading New Proposed Rule on Pay Equity and Transparency in Federal Contracting

The Civilian Board of Contract Appeals has published its annual report for FY 2023, providing data regarding the number of appeals and contractor success rates at the Board.  The data illustrated a number of noteworthy points — and a few welcome trends — for the contracting community.Continue Reading Contractors Had a Strong Success Rate Before the CBCA in FY 2023

This post continues our ongoing coverage of the FY 2024 NDAA. 

The FY 2024 NDAA includes numerous supply chain and stockpile management provisions aimed at addressing a host of perceived vulnerabilities and weaknesses in Department of Defense (“DoD”) supply chain networks used to secure goods and services for our national defense.  Of particular note, this year’s NDAA seeks to address China’s and Russia’s continued dominance in the global supply chain for many critical materials and rare earth elements.  Supply chain- and stockpile-related measures in the NDAA could present significant opportunities for contractors poised to support the U.S. Government’s efforts to on-shore and friend-shore U.S. and DoD sourcing and manufacturing, but Congress’s focus on increasing supply chain visibility could also herald new rounds of compliance and reporting requirements attached to federal procurements.Continue Reading Key Supply Chain Provisions of the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2024

On December 22, 2023, President Biden signed into law the 2024 National Defense Authorization Act (“FY 2024 NDAA”).  Sections 1841 through 1843 of the new law address Unidentified Anomalous Phenomena (“UAP”).

The version of the FY 2024 NDAA enacted in the Senate in July of this year incorporated the Unidentified Anomalous Phenomena Disclosure Act of 2023—which would have mandated the Federal Government’s exercise of eminent domain over UAP-related material controlled by private persons or entities.  As discussed in greater detail below, the eminent domain mandate was not included in the final version of the NDAA passed by both chambers of Congress.  The newly enacted law requires only the establishment of a government wide UAP records collection; that government offices transfer UAP records to the collection; and that records be reviewed for disclosure (or not) against a set of criteria under which public release could be “postponed.”  Nonetheless, the substance of these final UAP provisions and Congress’s renewed interest in UAP may be a harbinger of things to come for government contractors and research entities, especially those involved in defense, intelligence, and other national security projects.  We expand on the background, evolution, and national security implications of the UAP amendment—and its potential impacts on contractors and other private entities—below.Continue Reading Implications of the Unidentified Anomalous Phenomena (UAP) Amendment in the 2024 National Defense Authorization Act (NDAA)

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

The requirement to pay “prevailing wages” to covered workers is a perennial aspect of many types of government contracting, including construction contracts subject to the Davis-Bacon Act (“DBA”) and certain related laws (collectively referred to as the Davis-Bacon and Related Acts or “DBRA”).  In recent years, Congress has also expanded the reach of prevailing wage requirements to new industries: clean energy projects seeking to take advantage of federal tax credits under the Inflation Reduction Act are required to ensure that prevailing wages are paid or may be forced to forfeit valuable credits.  Semiconductor manufacturers — as well as manufacturers of materials and equipment used to make semiconductors — that seek to take advantage of the incentives established by the CHIPS Act are likewise required to follow the prevailing wage requirements of the DBA. 

It was in this context that the Department of Labor (“DOL”) introduced a 222-page final rule, “Updating the Davis-Bacon and Related Acts Regulations,” that substantially rewrote the implementing regulations under the DBRA.  Among other things, the final rule alters how DOL calculates the prevailing wage rates for each locality, and expands the definition of the “site of work” and categories of workers subject to the DBA.  Moreover, the final rule imposes the DBA by operation of law on federal construction contracts that would otherwise be covered, but that nevertheless do not include the requisite FAR clauses and wage determinations used to inform contractors of the DBA’s requirements.  The potential impact of these changes has not gone unnoticed:  last month, two trade associations — the Associated Builders and Contractors of Southeast Texas, Inc. (“ABCSETX”) and the Associated General Contractors of America (“AGC”) — filed separate suits challenging multiple aspects of the final rule, including the changes to prevailing wage calculation methodology and the revised definition of the site of work.  We expand on the final rule’s changes — and on the pending legal challenges — below. Continue Reading Whose Site Is It Anyway: Trade Groups Challenge DOL’s Prevailing Wage Calculation and Expanded Definition of the Site of Work Under the Davis-Bacon Act

On October 5, 2023, the Federal Acquisition Regulatory Council (FAR Council) issued an interim Federal Acquisition Regulation rule (FAR rule) that implements the Federal Acquisition Supply Chain Security Act (FASCSA).  This FAR rule implements the requirements of the Federal Acquisition Supply Chain Security Act of 2018 and the Federal Acquisition Security Council (FASC) final rule for complying with exclusion or removal orders. The FAR rule represents yet another step by the Government to mitigate the security risks that the Government perceives with the use of information technology that may be produced or provided by countries considered to be foreign adversaries.  Like similar supply chain prohibitions, the rule requires contractors to conduct diligence to ensure that articles and sources covered by a FASCA exclusion or removal order are not provided to the Government, to make an affirmative representation to the Government that such articles and sources will not be provided, and to promptly report if any are identified.  The FAR rule will become effective on December 4, 2023, and will apply to new contracts and contracts subject to extension or renewal.  The rule instructs that existing IDIQ contracts should be modified by the Government within six months of December 4, 2023 to apply the requirements to future orders.

Additional information about the rule and its relationship to existing FASCSA regulations is outlined below.Continue Reading FAR Council Issues Interim Rule Outlining Procedures Relating to Excluded Covered Articles and Sources