Non-incumbent awardees who are defending their awards against a bid protest often view sole-source “bridge” contracts issued to the incumbent as something akin to death and taxes — an unpleasant, yet seemingly inescapable fact of life. But a recent Court of Federal Claims decision offers an important reminder that these types of contracts are not … Continue Reading
After more than eight years in the making, the 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation (the “Rule”) seems to be a rudderless ship on a shoreless sea. On Monday, the Health Resources and Services Administration (HRSA) issued a notice of proposed rulemaking delaying the implementation date of the final … Continue Reading
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
For contractors who are concerned that filing a bid protest in the Government Accountability Office or Court of Federal Claims may alienate their customer, agency-level protests are a welcome, less-confrontational alternative that allows them to raise their concerns in a discreet, non-public fashion. But as shown by GAO’s recent decision in GovSmart, Inc. – Protest … Continue Reading
In a new rule announced yesterday, the FAR Council implemented prior statutory changes to GAO’s bid protest jurisdiction. For task orders issued by the Department of Defense, NASA, or the Coast Guard, the rule provides that GAO will have jurisdiction only over task orders “valued in excess of $25 million.”… 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
Recent news reports have raised a substantial question about who has authority to run the Department of Veterans Affairs (“VA”) in the wake of Dr. David Shulkin’s departure from the agency. According to the White House, Dr. Shulkin resigned. Meanwhile, Dr. Shulkin himself has publicly insisted that he did not resign and was instead fired. … Continue Reading
Late last month, the National Institute of Standards and Technology (“NIST”) released a set of documents for public comment that are aimed at helping contractors assess and implement compliance with NIST Special Publication (“SP”) 800-171, which establishes the standards for protecting Covered Defense Information (“CDI”), among other forms of Controlled Unclassified Information (“CUI”). First, NIST … Continue Reading
A few years ago, we reported on regulations governing federal contractors’ nondiscrimination obligations with respect to LGBT employees. The Trump Administration has taken steps to roll back many Obama-era efforts, although the Executive Order and rules establishing LGBT-related protections for employees of federal contractors remain in force, at least for now. The Second Circuit recently … 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
Federal contractors may be subject to a slate of new regulations in 2018, including rules that increase cyber reporting burdens, expand small business competition, and change the procedures for competitively awarding IDIQ contracts. Among the proposed rules, announced in the Semiannual Regulatory Agenda of the FAR Council and the General Services Administration (“GSA”), are changes … 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
Ahead of the upcoming December 31, 2017 deadline for federal defense contractors to implement National Institute of Standards and Technology (“NIST”) Special Publication 800-171 (“SP 800-171”), NIST has released a new draft publication designed to assist organizations in assessing compliance under SP 800-171, Draft Special Publication 800-171A, Assessing Security Requirements for Controlled Unclassified Information (“CUI”) … 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
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
The U.S. Government’s research and development (“R&D”) spending is on the rise. For instance, the U.S. Government spent $139 billion in on R&D in FY 2015 and approximately $148 billion in FY 2016. It is slated to spend as much as $154 billion on R&D in FY 2017. With this funding comes great opportunities for … Continue Reading
[This article was originally published in Law360.] On July 21, 2017 – and during “Made in America Week” – President Trump issued Executive Order 13806 on “Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States” (the “Manufacturing EO”). The Manufacturing EO sets forth a policy stressing the … Continue Reading
The Department of State has released its 2017 Trafficking in Persons (“TIP”) Report. As with prior versions of the annual report, the State Department reviewed efforts made by more than 180 countries to address the minimum Prosecutorial, Protective, and Preventative standards necessary for effective anti-trafficking measures, as these standards are outlined in the United States’ … Continue Reading
[This article also was published in Law360.] On June 30, 2017, Commerce Secretary Ross and OMB Director Mulvaney issued a Memorandum to Federal agencies regarding the “assessment and enforcement of domestic preferences in accordance with Buy American Laws,” which includes the Buy American Act (“BAA”). Although the Memorandum purports to provide guidance to help agencies … Continue Reading
The Department of Defense (“DoD”) held an “Industry Information Day” on June 23, 2017 to address questions regarding DFARS Case 2013-D018 “Network Penetration and Reporting for Cloud Services,” including DFARS clauses 252.204-7012 “Safeguarding Covered Defense Information and Cyber Incident Reporting” and 252.239-7010 “Cloud Computing Services.” DoD’s presentation lasted approximately four hours and covered a wide range of … Continue Reading
In a recent False Claims Act (“FCA”) case, United States ex rel. Louis Scutellaro v. Capitol Supply, Inc., the U.S. District Court for the District of Columbia held that the defendant’s failure to retain Country of Origin (“COO”) documentation for the products it sold to the government entitled the relator and the government to an … Continue Reading
Alex Acosta was confirmed by the Senate to be the next Secretary of Labor. He now takes responsibility for several high-profile issues with critical implications for government contractors. As we have previously written, the Labor Department was an exceptionally active regulator from 2013 through the end of the Obama Administration. Although few of us expect … Continue Reading
Under a new FAR rule, standard language in confidentiality agreements could lead to disqualification from contracting or False Claims Act liability.… Continue Reading
