Tag Archives: Rulemaking

Takeaways from DoD’s Proposed Changes to Certain Sourcing Restrictions

Pursuant to Sections 817 and 881(b) of the FY 2017 National Defense Authorization Act (“NDAA”), the Department of Defense (“DoD”) recently issued a proposed rule to amend certain sourcing restrictions found in DFARS subpart 225.70 and related clauses.  Specifically the proposed rule would amend the DFARS to: extend the Berry Amendment’s domestic sourcing restrictions to … Continue Reading

Takeaways From DoD’s Proposed Changes to Commercial Item Contracting

[This article was originally published in Law360 and has been modified for the blog.] Over the summer, pursuant to Section 874 of the FY 2017 National Defense Authorization Act (“NDAA”)[1], the Department of Defense (“DoD”) issued a proposed rule[2] to exclude the application of certain laws and regulations to the acquisition of commercial items, including … Continue Reading

Congress Aims to Redefine the “Subcontract”

[Updated August 13, 2018] If an agreement qualifies as a “subcontract” under a government contract, then it may be subject to certain flow-down, compliance, and reporting requirements.  These requirements are intended to protect the government’s interests, and have significant ramifications for contractors, e.g., increasing transaction costs, expanding potential areas of exposure.  These compliance obligations and … Continue Reading

Cybersecurity Update: DoD Releases Long-Awaited Final Rule

On October 21, 2016, the Department of Defense (DoD) issued its long-awaited Final Rule—effective immediately—imposing safeguarding and cyber incident reporting obligations on defense contractors whose information systems process, store, or transmit covered defense information (CDI). The Final Rule has been years in the making and is the culmination of an initial rule issued in November … Continue Reading

Changes to Small Business Subcontracting On the Horizon

Last week, the Federal Acquisition Regulation (“FAR”) Council issued a Final Rule to implement regulations adopted by the Small Business Administration in 2013.  The Final Rule significantly amends FAR Parts 19 and 52 by imposing additional small business-related obligations on prime contractors and clarifying the consequences of failing to satisfy those obligations.  The Final Rule … 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

Time Is On My Side: DoD Hears Industry Concerns – Additional Time Provided to Implement Security Controls Under New Cyber Rule

On December 30th, the Department of Defense (DoD) issued a Second Interim Rule amending its “Network Penetration Reporting and Contracting for Cloud Services” Interim Rule and giving  contractors until December 31, 2017 to implement the NIST SP 800-171 security controls required by DFARS 252.204-7012.  As noted in a previous post, DoD has already issued a … Continue Reading

HRSA Proposes Calculation of 340B Ceiling Prices, Implementation of Manufacturer Civil Monetary Penalties

On June 17, 2015, the Health Resources and Services Administration (HRSA) published a proposed rule to clarify how manufacturers should calculate the ceiling price for covered outpatient drugs under the 340B program, and to provide for civil monetary penalties (CMPs) on manufacturers that “knowingly and intentionally” overcharge 340B covered entities.[1]  The ceiling price provisions are … Continue Reading

FAR Council Beefs Up Small Business Subcontracting Rules

The FAR Council has released a proposed rule calling for significant revisions to the provisions in FAR Parts 19 and 52 addressing small business subcontracting plans.  The proposed changes, which are intended to implement regulations adopted by the Small Business Administration (SBA) in 2013, should serve as a not-so-subtle reminder of the range of small … Continue Reading

Proposed “Fair Pay and Safe Workplaces” Regulations Clarify New Responsibilities for Government Contractors

On May 28, 2015, the Federal Acquisition Regulatory (FAR) Council published proposed regulations that create additional obstacles for offerors seeking to obtain government contracts.  As we previously discussed, these regulations implement the “Fair Pay and Safe Workplaces” Executive Order 13673 that President Obama signed on July 31, 2014.  The regulations, which were accompanied by and … 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

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

Judge Requires PhRMA To Initiate New 340B Orphan Drug Lawsuit to Challenge Interpretive Rule

A Washington, D.C., federal judge has declined requests from Pharmaceutical Research and Manufacturers of America(“PhRMA”) to invalidate a new interpretive rule applicable to orphan drugs in the 340B drug discount program, saying the trade group must file a new complaint in order to proceed. Last week, the D.C. District Court ruled that PhRMA must bring … Continue Reading
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