NDAA

After failing to be included in the Fiscal Year (“FY”) 2025 National Defense Authorization Act (“NDAA”) or passed as a standalone piece of legislation, the BIOSECURE Act has moved closer to finally being enacted after it was included in the final FY 2026 NDAA text released by Congress on December 7, 2025.  Section 851 of the FY 2026 NDAA is titled “Prohibition on Contracting with Certain Biotechnology Providers,” but includes in substance what was previously introduced and considered in Congress as the BIOSECURE Act. 

The bill has the potential to impose significant restrictions on the use of certain Chinese companies in the supply chain for products procured by the U.S. Government and accordingly has been of interest to industry over the last few years.  This blog post summarizes the scope of the bill, highlights the changes in the FY 2026 NDAA text as compared to prior iterations of the bill, and flags key considerations for government contractors in the life sciences space.Continue Reading BIOSECURE Act Moves Closer to Enactment with Inclusion in FY 2026 NDAA Text

Two cornerstone authorities for federal contracting quietly expired on September 30, 2025, creating ripple effects that contractors—small and large—cannot afford to overlook.  The Small Business Innovation Research/Small Business Technology Transfer (“SBIR/STTR”) programs, commonly known as “America’s Seed Fund” for their role in fueling early-stage innovation, and the Defense Production Act…

Continue Reading Expired:  SBIR/STTR and DPA Authorities in Limbo

The Defense Production Act (DPA) has long been viewed as the primary federal mechanism for managing and supporting defense production.  Since it was enacted in September 1950—just months after the Korean War began—the DPA has armed the President with wartime-style powers to prioritize contracts, allocate scarce materials, and finance surge defense production capacity.  These DPA industrial authorities are subject to periodic reauthorization, with the current sunset set for September 30, 2025.  While the reauthorization of the DPA remains pending, the Senate Armed Services Committee (SASC) has advanced a new NDAA provision that would convert the extant Industrial Base Fund (IBF) (10 U.S.C. section 4817) into a Pentagon-controlled toolkit that closely mirrors—but is not identical to—DPA’s Title III authorities.  The introduction of section 849A of the FY 2026 NDAA suggests that the SASC is no longer willing to entrust the re-armament of the Pentagon and revitalization of the Defense Industrial Base (DIB) solely to reauthorization of the DPA—a process that lives or dies in other committees’ jurisdictions. Continue Reading Forging a Modern Strategic Production Base:  Senate Proposes Stand-Alone Defense-Production Powers for the Pentagon

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

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 Strategy

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

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 Entities

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

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 Requirements

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