This is the twenty-sixth 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…

Continue Reading June 2023 Developments Under President Biden’s Cybersecurity Executive Order and National Cybersecurity Strategy

On June 21, 2023, DHS published a final rule that amends the Homeland Security Acquisition Regulation (HSAR) both by modifying the existing regulations through removing and updating existing clauses and by adding new contract clauses to include certain requirements for the safeguarding of Controlled Unclassified Information (CUI).  The final rule…

Continue Reading DHS Releases Final Rule on Safeguarding CUI After Six Year Wait

This is the twenty-fifth 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 April 2023.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during May 2023. 

Continue Reading May 2023 Developments Under President Biden’s Cybersecurity Executive Order and National Cybersecurity Strategy

Earlier this month, the Federal Circuit provided new guidance on the high burden that the government must carry to terminate a contract for default.  In Dep’t of Transp. v. Eagle Peak Rock & Paving, Inc., the Federal Circuit held that the validity of a termination decision does not depend exclusively on the contracting officer’s reasoning — rather, the government must produce evidence during litigation to prove the contractor’s default under a de novo standard of review.  The Eagle Peak decision illustrates that, absent a threshold showing that the contracting officer’s decision was pretextual, contractors challenging a default decision should focus on developing the “clean slate” record needed to rebut the government’s allegations, rather than disputing the contracting officer’s rationale (or lack thereof) for termination.

Continue Reading It Makes No Deference: Fed Circuit Confirms Proper Standard of Review in Default Termination Challenges

As the House and Senate Armed Services Committees prepare to mark up the Fiscal Year 2024 National Defense Authorization Act (NDAA), they are very likely to consider a number of China-related measures that have been recommended by the national security community and which could enjoy bipartisan support.  These recommendations are generally focused on countering Chinese influence in the United States or increasing the United States’ relative power advantage in the Pacific region. 

Continue Reading Fiscal Year 2024 National Defense Authorization Act: More China-Related Measures on the Horizon

On May 19, 2023, the National Institutes of Health (“NIH”) issued notice that it would be updating its requirements for consortium/subaward agreements on NIH-funded grants.  This update, which will be effective October 1, 2023, will bring NIH’s subaward and consortium requirements in line with the Office of Management and Budget Guidance set forth in Title 2 and push NIH grant recipients and subrecipients towards a higher degree of formality in their agreements.  Failure to formalize these relationships may endanger eligibility for NIH funding. 

Continue Reading Show Me the Documentation: NIH Pushes Grantees to Formalize Subaward / Consortium Agreements   

On May 10, 2023, the United States Court of Appeals for the Federal Circuit issued a decision regarding bid protest standing in CACI, Inc.-Federal v. United States et al.  In that decision, the court declared previous decisions to no longer be good law and held that the Court of Federal Claims erred in finding the protester to lack standing.

Continue Reading Federal Circuit Weighs in on Bid Protest Standing and Departs from Prior Cases

This is the twenty-fourth 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 March 2023.  This blog describes key actions taken to implement the Cyber EO, as well as the U.S. National Cybersecurity Strategy, during April 2023. 

Continue Reading April 2023 Developments Under President Biden’s Cybersecurity Executive Order and National Cybersecurity Strategy

On May 12, 2023, the Department of Treasury issued long-awaited guidance addressing the so-called domestic content “bonus credit” available under the Inflation Reduction Act of 2022 (“IRA”).  As we have discussed elsewhere in detail, the IRA incorporates extensions of the existing clean energy tax credits under IRC section 45 and section 48 and establishes new “technology neutral” versions of these credits (pursuant to sections 45Y and 48E) that will become available starting in 2025.  At the same time, the IRA also establishes a new 10% domestic content bonus credit that may be claimed in combination with these tax credits provided that the taxpayer: (1) uses U.S.-made iron and steel during construction of the energy-generation facility; and (2) ensures that the cost of any domestic manufactured products that are components of the facility meets a specified domestic content threshold.

The IRA statutory provision left open several key questions regarding how these domestic content requirements would work in practice (including, for example, how the threshold percentage would be calculated).  Last Friday, Treasury issued long-awaited guidance (Notice 2023-38 or the “Notice”) that, among other things, addresses: (1) the contours of the “iron and steel” requirement; and (2) the method by which the adjusted percentage is to be calculated.  While the guidance is consistent with traditional Buy America principles in certain respects, it also introduces both new concepts and new terminology — particularly with regards to the domestic content percentage calculation — which we discuss in detail below. 

Continue Reading Treasury Releases Long-Awaited Guidance for Domestic Content Bonus Credit Under Inflation Reduction Act

Summary

The Department of Defense, General Services Administration, and the National Aeronautics and Space Administration have issued a proposed rule that would revise the Federal Acquisition Regulations (“FAR”) to implement section 5(b)(i) of Executive Order (“E.O.”) 14030, Climate-Related Financial Risk, requiring government contractors to publicly disclose greenhouse gas (“GHG”) emissions…

Continue Reading Final FAR Climate Disclosure Rule Likely to Impose Increased Compliance Burden and Responsibility Risks