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 AgreementsFederal Circuit Weighs in on Bid Protest Standing and Departs from Prior Cases
By Kayleigh Scalzo on
Posted in Bid Protests
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 CasesApril 2023 Developments Under President Biden’s Cybersecurity Executive Order and National Cybersecurity Strategy
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 StrategyTreasury Releases Long-Awaited Guidance for Domestic Content Bonus Credit Under Inflation Reduction Act
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 ActFinal FAR Climate Disclosure Rule Likely to Impose Increased Compliance Burden and Responsibility Risks
By Robert Huffman on
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 RisksMarch 2023 Developments Under President Biden’s Cybersecurity Executive Order
This is the twenty-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 implement the Cyber EO from June 2021 through February 2023. This blog describes key actions taken to implement the Cyber EO during March 2023.
Continue Reading March 2023 Developments Under President Biden’s Cybersecurity Executive OrderCISA Publishes International Guidance on Implementing Security-by-Design and Security-by-Default Principles for Software Manufacturers and Customers
Posted in Cybersecurity
Last week, the U.S. Cybersecurity and Infrastructure Security Agency released guidance on Security-by-Design and Security-by-Default principles for technology manufacturers that was jointly developed by the Federal Bureau of Investigation and the National Security Agency, as well as cybersecurity authorities in Australia, Canada, United Kingdom, Germany, Netherlands, and New Zealand. The…
Continue Reading CISA Publishes International Guidance on Implementing Security-by-Design and Security-by-Default Principles for Software Manufacturers and CustomersCommerce Department Issues First Funding Notice for Wireless Innovation Fund
By Holly Fechner & Matthew Shapanka on
Posted in Information Technology Contracting
Today the National Telecommunications and Information Administration (NTIA) released its first notice of funding opportunity for development of next-generation wireless infrastructure under the new Public Wireless Supply Chain Innovation Fund (“Innovation Fund”). According to NTIA’s announcement, this first tranche of funding will include up to $140.5 million in grants, ranging from $250,000 to $50 million, specifically to support expanded testing and evaluation of the performance, security, or interoperability of open, interoperable (“open-RAN”) wireless networks. Companies (both for- and nonprofit), higher education institutions, industry groups, and consortia of multiple organizations are eligible to apply.
Continue Reading Commerce Department Issues First Funding Notice for Wireless Innovation FundAmici Curiae Submit Brief Urging Supreme Court to Adopt “Objectively Reasonable” FCA Knowledge Standard
The Coalition for Government Procurement and the National Defense Industrial Association filed an amicus brief in the consolidated Supreme Court cases United States ex rel. Schutte v. SuperValu, Inc. and United States ex rel. Proctor v. Safeway, Inc. The brief urges the Court to hold, consistent with the decisions of multiple federal courts of appeals, that a defendant cannot be liable under the False Claims Act (“FCA”) for “knowingly” submitting a “false” claim if (1) it acted in accordance with an objectively reasonable reading of an ambiguous statute, regulation, or contract provision and (2) there was no authoritative guidance warning it away from that interpretation. The Amici are represented by Covington & Burling LLP.
In SuperValu and Safeway, the Court is asked to resolve questions over the role that subjective intent plays in evaluating whether a defendant satisfies the FCA’s “knowledge” requirement. Petitioners argue that a contractor can be liable under the FCA for submitting a claim that is premised on an objectively reasonable interpretation of an ambiguous legal provision if the contractor recognized that the provision could be interpreted a different way. However, as the amicus brief explains, such a claim cannot be false for alleged noncompliance with the ambiguous legal provision that has not otherwise been clarified by authoritative guidance. Nor can such a contractor knowingly submit a false claim just because it was aware that the legal obligation may be interpreted differently.
Continue Reading Amici Curiae Submit Brief Urging Supreme Court to Adopt “Objectively Reasonable” FCA Knowledge StandardNational Security Update – Departments of Commerce and Treasury Release Notice of Proposed Rulemaking Regarding CHIPS “Guardrails”
By Jonathan Wakely, Michael Wagner, David Fagan & Brian Kim on
Posted in CHIPS Act, Domestic Preferences
On March 21, 2023, the Department of Commerce (“Commerce”) published a Notice of Proposed Rulemaking (the “Commerce Proposed Rule”) to implement certain provisions of the CHIPS and Science Act of 2022 (“CHIPS Act”) that place restrictions on certain activities of businesses receiving federal funding pursuant to the CHIPS Act (“Commerce Guardrails”). On the same day, the Department of the Treasury (“Treasury”) also published a Notice of Proposed Rulemaking (together with the Commerce Proposed Rule, the “Proposed Rules”) to implement the Advanced Manufacturing Investment Credit (“ITC”), including its own restrictions on certain activities that, in broad strokes, parallel the Commerce Guardrails (together with Commerce Guardrails, “CHIPS Guardrails”) (Covington alert).
Continue Reading National Security Update – Departments of Commerce and Treasury Release Notice of Proposed Rulemaking Regarding CHIPS “Guardrails”