Tag Archives: Regulations

New Policies on Sustainable Acquisition: Among the Last Proposed FAR Rules of the Obama Administration

Just two days before Donald Trump’s Inauguration, the Federal Acquisition Regulatory Council published a proposed rule to implement Executive Order 13693, Planning for Federal Sustainability in the Next Decade, and certain biobased acquisition provisions of the Agricultural Act of 2014.  The Council characterized the rule as advancing policies put into effect by an interim rule … Continue Reading

Reining in Regulation: New Year, New Administration, New Confusion

A new administration will often articulate its approach to the management of executive agencies through the issuance of an executive order.  President Clinton issued E.O. 12866 in the fall of 1993 and set forth both the process of regulatory review and a regulatory philosophy meant to guide executive agencies.  E.O. 12866 placed an emphasis on … Continue Reading

GSA Doubles Down on CSA/EULA Deviation

Recently, the General Services Administration (“GSA”) issued a proposed rule to codify a class deviation regarding GSA’s approach to common Commercial Supplier Agreement (“CSA”) and End User License Agreement (“EULA”) terms.  We have previously addressed the class deviation here and in an article for the Coalition for Government Procurement available here.  While the Proposed Rule … Continue Reading

HRSA Seeks a Second Round of Comments on 340B Penny Pricing, New Drug Estimates, and Civil Monetary Penalties

On Monday, April 18th, the Health Resources and Services Administration (“HRSA”) and the Department of Health and Human Services (“HHS”) reopened the comment period for their proposed rule “340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation” (“Proposed Rule”).  Originally issued on June 17, 2015, the Proposed Rule sought to implement the … Continue Reading

Strict DoD Sourcing Requirements for PV Devices

As part of an ongoing Department of Defense (“DoD”) effort to increase its energy efficiency,  late last month the U.S. Army committed to develop its largest renewable energy project to date — a 65MW  wind and solar  project at Fort Hood.  This ambitious project will need to comply with the latest DoD rules regarding sourcing … Continue Reading

Contracting Officers Must Soon Separately Justify Awards to Offerors Proposing High-Percentage or “Pass-Through” Subcontracting

Over the past decade, Congress has focused on eliminating excessive “pass-through” charges—charges defined as overhead costs or profits passed to the Government by contractors adding negligible value over work done by lower-tier contractors.  The efforts began with the Post-Katrina Emergency Management Reform Act of 2006, which introduced limitations on tiered subcontracts after allegations that the … Continue Reading

SEC and State OIG Allege that Contractors’ Policies, Procedures, and Agreements Suppress Whistleblowing

In a span of two days, two separate agencies took action against contractor policies and agreements that may discourage whistleblowers.  On March 30, 2015, the U.S. Department of State Office of Inspector General (“State OIG”) issued a report contending that certain contractor policies and agreements have a “chilling effect” on whistleblowers.  On April 1, 2015, … Continue Reading

Senator McCain Renews Focus on Ending Cost-Plus Contracts

A longtime and well-known proponent of defense acquisition reform, Senator John McCain assumed the chairmanship of the U.S. Senate Armed Services Committee (“SASC”) on January 6.  Sen. McCain has been particularly outspoken concerning cost overruns on major systems procurement projects.  He has characterized the “cost-plus” contract structure as among the key causes of these overruns, … Continue Reading

DOL Implements New Rule: Government Contractors and Subcontractors Prohibited from Discriminating Against LGBT Workers.

Today, the Department of Labor (“DOL”) published a new final rule “prohibiting discrimination on the bases of sexual orientation and gender identity in the federal contracting workforce.”  This rule implements Executive Order 13672, signed by President Obama on July 21, and marks the first federal action ensuring LGBT workplace equality that implicates the private sector. … Continue Reading

Executive Orders Impose New Labor Requirements on Contractors

President Obama recently issued two Executive Orders designed to ensure that federal contractors maintain strict compliance with various labor-related laws and regulations if they wish to remain eligible for federal contracts.  Taken together, these Executive Orders place significant new compliance burdens on federal contractors.  Please see our attached article for an in-depth analysis of these requirements and … Continue Reading

Request for Public Comments on “Alternative Measures” for Calculating Allowable Employee Compensation Costs

A Federal Register notice has requested public comments on “alternative measures” for capping the reimbursement of contractor employee compensation.  This notice follows a June 24, 2014 interim rule from the Department of Defense (“DOD”), the General Services Administration, and the National Aeronautics and Space Administration that implements Section 702 of the Bipartisan Budget Act of … Continue Reading

DOD Rapid Reporting Regulations Further Delayed

The Department of Defense (“DOD”) has once again delayed the promulgation of regulations requiring DOD contractors to rapidly report data breaches and allowing DOD to access the contractor’s equipment to conduct a forensic analysis.  The National Defense Authorization Act for Fiscal Year 2013 originally required an ad hoc committee to provide a report to the Defense Acquisition Regulations Council in March 2013.  The … Continue Reading

Court of Federal Claims Stays Decision Requiring Commercial Item Contractor to Comply with Non-Commercial Practices

Contractors supplying commercial products and services to the U.S. Government under the Federal Supply Schedule (“FSS”) or General Services Administration (“GSA”) Schedules program may be required to comply with non-commercial requirements. Until recently, it was thought that rules in Part 12 of the Federal Acquisition Regulation (“FAR”) applicable to commercial item purchases—rules that restricted agencies … Continue Reading

Will the “Inversion” Backlash Flow-Down to Subcontractors?

Washington policymakers are criticizing corporate “inversions”—i.e., U.S. companies that reincorporate abroad under lower corporate income tax rates—and contractors should take note.  Currently, U.S. law bars an inverted domestic corporation (“IDC”) from receiving funds under a prime U.S. contract.  See Consolidated Appropriations Act of 2014 (H.R. 3547); see also FAR 9.108-2.  On July 29, 2014, lawmakers proposed a bill—the … Continue Reading

Cleared Intelligence Contractors Readying for New Cybersecurity Reporting Requirements

When it became law on July 7, 2014, the 2014 Intelligence Authorization Act (“IAA”) gave the Director of National Intelligence (“DNI”) 90 calendar days to issue new regulations addressing the requirement that “cleared intelligence contractors” report any “successful penetration” of their networks and information systems.  With the DNI on the clock, what can these contractors … Continue Reading
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