Procurement Law and Policy Insights
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…
Continue Reading USSC Issues RFP For Report On Supply Chain IT Vulnerabilities From China
On October 30, 2015, the Department of Defense (“DoD” or the “Department”) issued a Final Rule amending the Defense Federal Acquisition Regulation Supplement (“DFARS”) and clarifying the scope of the DoD’s ability to evaluate and exclude contractors that represent “supply chain risks” in solicitations and contracts involving the development or delivery of IT products and services related to National Security Systems (“NSS”). The Final Rule clarifies that the DoD’s exclusion authority is limited to procurement of NSS, explains that decisions apply on a procurement-by-procurement basis, and removes the flow down requirement that was present in the Interim Rule. The Final Rule also encourages contracting officers to consider imposing a Government consent requirement for all subcontracts. Our in-depth analysis of the Final Rule is available here.
Continue Reading DoD Issues Final Rule Addressing Exclusion of Contractors that Present Supply Chain Risk in National Security System Procurements
Supply chain protection has been a point of increasing emphasis by the Government and especially the Department of Defense (“DoD”) in recent years. In no area is this more true than ensuring that Government systems and equipment are free from counterfeit electronic parts, which can raise both security and defect concerns. DoD has accordingly taken several steps, many of which have taken the form of new requirements on contractors, to protect against counterfeit electronic parts. With these requirements has come added risk to contractors that even mistakenly use electronic parts in the goods they sell to DoD. However, an August 30, 2016, final DFARS rule (implemented at DFARS 2301.205-71) seeks to mitigate some of this risk by allowing contractors to recover the cost of replacing counterfeit electronic parts, as long as the contractor has taken certain steps to prevent the use of such parts.
Continue Reading DOD Final Rule Addresses Source Requirements and Cost Recovery for Use of Counterfeit Electronic Parts
The FY 2025 National Defense Authorization Act (“NDAA”) sustains Congress’s continued focus on countering China’s expanding influence and enhancing U.S. resilience in an era of great power competition. This year’s legislation reflects the practice of carrying the State Department and Intelligence Authorization Acts within the NDAA—marking the third consecutive year that these critical measures have been advanced in tandem. The Foreign Relations and Intelligence Committees in both chambers of Congress have increasingly adopted the Armed Services Committees’ playbook, embedding China-focused legislation modeled on past defense measures in their respective authorizations. This blog examines key provisions designed to address what Congress views as strategic challenges posed by China while closing loopholes that could confer military, economic, or technological advantages to Beijing. We divide these provisions into the following five categories: (1) provisions that address potential security risks linked to Chinese-origin technology; (2) provisions that limit the transfer of U.S. technology or data to China; (3) so-called “time to choose” provisions that curtail Department of Defense (“DoD”) engagement with third parties that engage with China; (4) provisions that tackle a range of broader geopolitical concerns; and (5) studies and reports to identify emerging issues and concerns.
Continue Reading FY2025 NDAA: Congressional Efforts to Bolster U.S. Resilience Against Chinese Tech and Influence
Since 1986, the little brother to the civil False Claims Act, known as the Program Fraud Civil Remedies Act of 1986 (“PFCRA”), has seen very little use. Section 5203 of the Fiscal Year 2025 National Defense Authorization Act (“NDAA”) seeks to breathe new life into the law by renaming it…
Continue Reading Congress Attempts to Revitalize the Program Fraud Civil Remedies ActThis is the first blog in a series covering the Fiscal Year 2025 National Defense Authorization Act (“FY 2025 NDAA”). This first blog will cover: (1) NDAA sections affecting acquisition policy and contract administration that may be of greatest interest to government contractors; (2) initiatives that underscore Congress’s commitment to strengthening cybersecurity, both domestically and internationally; and (3) NDAA provisions that aim to accelerate the Department of Defense’s adoption of AI and Autonomous Systems and counter efforts by U.S. adversaries to subvert them. …
Continue Reading President Biden signs the National Defense Authorization Act for Fiscal Year 2025
This is part of 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…
Continue Reading October 2024 Developments Under President Biden’s Cybersecurity Executive Order and National Cybersecurity StrategyOn October 15, 2024, the U.S. Cybersecurity and Infrastructure Security Agency (“CISA”) published software bill of materials (“SBOM”) guidance through the third edition of Framing Software Component Transparency: Establishing a Common Software Bill of Materials (SBOM) (dated September 3, 2024) (the “Guidance”). The Guidance provides “a minimum expectation for creating…
Continue Reading CISA Releases Guidance on Minimum Expectations for Software Bill of MaterialsOn Tuesday, October 22, 2024, Pennsylvania State University (“Penn State”) reached a settlement with the Department of Justice (“DoJ”), agreeing to pay the US Government (“USG”) $1.25M for alleged cybersecurity compliance violations under the False Claims Act (“FCA”). This settlement follows a qui tam action filed by a whistleblower and former employee of Penn State’s Applied Research Laboratory. The settlement agreement provides some additional insight into the priorities of DoJ’s Civil Cyber Fraud Initiative (“CFI”) and the types of cybersecurity issues of interest to the Department. It also highlights the extent to which DoJ is focusing on the full range of cybersecurity compliance obligations that exist in a company’s contract in enforcement actions.Continue Reading Penn State Agrees to Pay $1.25M in Settlement for Cybersecurity Non-Compliance False Claims Act Allegations
The Office of Strategic Capital (“OSC”) within the Department of Defense (“DOD”) has launched a Credit Program, under which it will provide debt financing in critical technology areas that drive national and economic security. As an initial step, OSC is soliciting applications for equipment loans, which may be submitted between…
Continue Reading DOD Office of Strategic Capital Begins Its Direct Lending Efforts to Secure U.S. Industrial Base