This 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
NDAA
November 2024 Developments Under President Biden’s Cybersecurity Executive Order and National Cybersecurity Strategy
This is part of a series of Covington blogs on the 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 November 2024 Developments Under President Biden’s Cybersecurity Executive Order and National Cybersecurity StrategyNDAA Increases Threshold for Task Order Protests and Directs Another Study on Whether Losing Protesters Should Pay
In what has become an annual tradition, this year’s National Defense Authorization Act (“NDAA”) — just passed by the Senate and sent to the President for signature — contains a provision addressing bid protests at the Government Accountability Office (“GAO”).
Likely of greatest interest to contractors is that Section 885 contains language increasing the dollar threshold for protests of task order awards under a Department of Defense indefinite-delivery, indefinite-quantity (“IDIQ”) contract, from $25,000,000 to $35,000,000. The increased threshold would further limit the universe of task orders that can be protested under DoD IDIQ contracts.
Section 885 also requires GAO to prepare a “Proposal for Payment of Costs for Certain Government Accountability Office Bid Protests.” This provision is likely part of the Department of Defense’s years-long campaign to impose a “loser pays” penalty on protesters in an effort to curb what it says is a problem of frivolous protests — even though GAO’s annual bid protest statistics show that the majority of protests result in relief to the protester, as evidenced by an effectiveness rate of 52%. DoD’s effort has dated back at least to the Fiscal Year 2018 NDAA, which included an analogous pilot program proposal. More recently, as discussed in our August 21, 2023, post entitled “Should Bid Protest Losers Pay?” Section 804 of the House-enacted NDAA for Fiscal Year 2024 included a pilot proposal for a “loser pays” program.Continue Reading NDAA Increases Threshold for Task Order Protests and Directs Another Study on Whether Losing Protesters Should Pay
Department of Defense Publishes Notice of Proposed Rulemaking on Disclosure of Computer and Source Code to Foreign Entities
On November 15, 2024, the Department of Defense (“DoD”) published a Notice of Proposed Rulemaking (“Proposed Rule”) entitled “Defense Federal Acquisition Regulation Supplement: Disclosure of Information Regarding Foreign Obligations.” The Proposed Rule would impose new disclosure obligations on “Offeror[s]” (pre-award) and “Contractor[s]” (post-award) that are triggered in certain…
Continue Reading Department of Defense Publishes Notice of Proposed Rulemaking on Disclosure of Computer and Source Code to Foreign EntitiesChips on the Table: FAR Council Releases Advance Notice of Proposed Rulemaking to Implement Prohibition on Purchase and Use of Certain Semiconductors
Today, the Federal Acquisition Regulatory Council (“FAR Council”) released an Advance Notice of Proposed Rulemaking (the “ANPRM”) describing the agencies’ plan to implement Section 5949 of the National Defense Authorization Act (“NDAA”) for FY 23 (Pub. L. 117-263).
Section 5949 prohibits the Federal Government from procuring certain semiconductor parts, products, or services traceable to named Chinese companies and potentially other foreign countries of concern. To that end, the ANPRM invites public comment on the proposed contents of an implementing FAR clause, to take effect December 23, 2027.
As discussed below, the FAR Council proposed applying the regulations broadly to all solicitations and contracts, including commercial item and commercially available off-the-shelf (“COTS”) contracts, subject only to a limited waiver. Although not set out in the statute, the clause would require contractors to conduct a “reasonable inquiry” into their supply chain to detect potential violations. It would also require both disclosure and the taking of corrective action in the event that nonconforming products or services are discovered.
More details are below, and our previous coverage of Section 5949 is available here.Continue Reading Chips on the Table: FAR Council Releases Advance Notice of Proposed Rulemaking to Implement Prohibition on Purchase and Use of Certain Semiconductors
U.S. Government Brings Criminal Charges Against Individual Alleged to be Responsible for Falsely Representing that Cameras Sold to Government Customers were Compliant with Section 889 Requirements
On January 4, 2024, the U.S. Attorney’s Office for the District of New Jersey announced that it has filed criminal wire fraud and false statement charges against the Chief Executive Officer (CEO) of a company that knowingly sold certain surveillance and security cameras to prosecutors’ offices, sheriffs’ offices, and police…
Continue Reading U.S. Government Brings Criminal Charges Against Individual Alleged to be Responsible for Falsely Representing that Cameras Sold to Government Customers were Compliant with Section 889 RequirementsKey Supply Chain Provisions of the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2024
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
Implications of the Unidentified Anomalous Phenomena (UAP) Amendment in the 2024 National Defense Authorization Act (NDAA)
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)
Key Cyber Security and Software Security Provisions of the House and Senate Versions of the Fiscal Year (FY) 2024 National Defense Authorization Act (NDAA)
Following our recent overview of topics to watch in the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2024, available here, we continue our coverage with a “deep dive” into NDAA provisions related to cybersecurity and software security in each of the Senate and House bills. For the past three years, the NDAA has dedicated a separate Title to cyber and cybersecurity, reflecting the increased importance of these issues in Department of Defense (“DoD”) operations. As expected, both the Senate and House versions of the NDAA bill continue this tradition. Many of the cyberspace related provisions in both chambers’ bills would have direct or indirect impacts on DoD contractors and other members of the Defense Industrial Base (“DIB”). We summarize below the cyber-related provisions that are most likely to impact the DIB. Continue Reading Key Cyber Security and Software Security Provisions of the House and Senate Versions of the Fiscal Year (FY) 2024 National Defense Authorization Act (NDAA)

Key Domestic Sourcing Provisions of the House and Senate Versions of the Fiscal Year (FY) 2024 National Defense Authorization Act (NDAA)
Domestic sourcing requirements are not new, but the Government is always developing new tools for increasing the sourcing of goods from the U.S. and allied countries. Both sides of the political aisle have marched to a drumbeat of increased domestic sourcing for the past several years. Most recently, the Biden Administration implemented Executive Order 14005 to “maximize” the U.S. Government’s purchase of goods and services produced in the United States and Executive Order 14104 to increase domestic manufacturing and commercialization in certain research and development supported by federal funding. The ongoing bi-partisan support for bolstering domestic sourcing is illustrated no better than through this year’s NDAA, which focuses on expanding the domestic supply chain for materials and supplies critical to the U.S. military, encouraging the purchase of domestic end items, and providing more opportunities for the Department of Defense (“DoD”) to engage with and purchase from domestic businesses.Continue Reading Key Domestic Sourcing Provisions of the House and Senate Versions of the Fiscal Year (FY) 2024 National Defense Authorization Act (NDAA)