Government Contracts Legal Forum
Legal analysis of government contracting.
Does Government Disclosure of a Company’s Trade Secrets Amount to an Unlawful Taking Under the Fifth Amendment?
In Vanda Pharmaceuticals, Inc. v. United States, No. 23-629C (Fed. Cl. 2024), 2024 WL 201890, the Court of Federal Claims (COFC) addressed whether government disclosure of a company’s trade secrets and commercial information could create a viable claim for a taking under the Fift
Crowell and Moring LLP · Feb 13, 2024
Show Me the Money: Contractors and Subcontractors May Soon Be Subject to Pay Transparency Requirements, Which May Also Trigger New Bid Protest Issues
Following a January 29, 2024 White House announcement and Fact Sheet, on January 30, 2024, the Federal Acquisition Regulation (FAR) Council issued a Notice of Proposed Rulemaking (Proposed Rule) on salary-history bans and pay transparency for applicants and employees of federal c
Crowell and Moring LLP · Feb 9, 2024
Who I(aa)S Your Foreign Customer? Department of Commerce Proposes Foreign Customer Identification Requirements For U.S. IaaS Providers
On January 29, 2024, the Department of Commerce released a proposed rule: Taking Additional Steps To Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities, which solicits comments regarding a proposed new set of regulations that would intro
Crowell and Moring LLP · Feb 8, 2024
DoD is Making its List, and Checking it Twice: DoD Updates 1260H Chinese Military Companies List
On January 31, 2024, the Department of Defense (DoD) updated the 1260H List of entities identified as “Chinese military companies” operating in the United States, as it is required to do at least annually by Section 1260H of the National Defense Authorization Act (NDAA) for Fisca
Crowell and Moring LLP · Feb 7, 2024
Fastest 5 Minutes
Limitations on Subcontracting, National Defense Industrial Strategy, Suspension/Debarment This week’s episode covers a proposed rule regarding limitations on subcontracting, DOD’s National Defense Industrial Strategy, a proposed rule seeking to amend the FAR in order to enhance c
Crowell and Moring LLP · Feb 2, 2024
Wait Too Long and You Might Miss Sum-Thing: ASBCA Again Underscores that Failure to Timely Raise Sum-Certain Defense Can Result in Forfeiture Under New Federal Circuit Precedent
On remand from the U.S. Court of Appeals for the Federal Circuit, in ECC International Constructors, LLC, ASBCA Nos. 59586, 59643, the Armed Services Board of Contract Appeals concluded that, by waiting until after a hearing on the merits and six years after the appeal was filed,
Crowell and Moring LLP · Feb 1, 2024
January 2024 Bid Protest Sustain of the Month
Though not the first sustain of 2024 (click here for our writeup of 2024’s first sustain), GAO’s decision in American Material Handling, Inc. provides an informative discussion of the level of scrutiny agencies face when conducting “brand name or equal” procurements. In American
Crowell and Moring LLP · Jan 30, 2024
Who CARES? The ASBCA Might.
In Aviation Training Consulting, LLC, ASBCA No. 63634 (Jan. 11, 2024), the Armed Services Board of Contract Appeals (ASBCA) confirmed that a contractor’s properly asserted claim for relief under Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act is a c
Crowell and Moring LLP · Jan 29, 2024
Use It or Lose It: ASBCA Finds That the Government Forfeited its Sum-Certain Defense
In JE Dunn Construction Company, ASBCA No. 63183, the Armed Services Board of Contract Appeals (“ASBCA”) issued its first published decision applying the Federal Circuit’s recent holding that the sum-certain requirement of the Contract Disputes Act (“CDA”) is not jurisdictional.
Crowell and Moring LLP · Jan 26, 2024
FY 2024 NDAA Pumps the Brakes on Mandatory GHG Emissions Disclosure Requirements for DoD Contracts
Front of mind for many federal contractors is the proposed FAR rule that would make federal contract awards contingent upon meeting mandatory greenhouse gas (GHG) emissions requirements. But a provision in the recently enacted National Defense Authorization Act (NDAA) for Fiscal
Crowell and Moring LLP · Jan 26, 2024
Fastest 5 Minutes
NDAA, SDVOSB Eligibility, FedRAMP This week’s episode covers highlights of the NDAA for FY24, a Class Deviation relating to SDVOSB eligibility, an ASBCA decision involving pandemic-related claims, and DOD guidance detailing what it means for a cloud service provider to FedRAMP Mo
Crowell and Moring LLP · Jan 25, 2024
Contractor Discovers the High Cost of Misrepresenting a Material Fact: Summary Judgment Denied in Part
On December 19, 2023, the United States District Court for the District of Utah denied summary judgment in part to Vanderlande Industries (Vanderlande), holding that a reasonable jury could find that Vanderlande negligently misrepresented the viability of subcontractor Ludvik Ele
Crowell and Moring LLP · Jan 25, 2024
GAO’s First Sustain of 2024 Emphasizes the Need for Documented Analysis of Offerors’ Proposals Against Solicitation Requirements
In its first published bid protest sustain decision of the new year, the Government Accountability Office (GAO) highlights agencies’ obligation to adequately document a substantive analysis of proposals against the solicitation requirements, even in FAR Part 16.5 procurements. In
Crowell and Moring LLP · Jan 22, 2024
DoD Announces First Ever Strategy for a Modernized Defense Industrial Ecosystem
On January 11, 2024, the Department of Defense (DoD) announced its first-ever National Defense Industrial Strategy (NDIS) focused on building a modernized industrial ecosystem that provides a sustained competitive advantage to the US over its adversaries. Specifically, the NDIS p
Crowell and Moring LLP · Jan 17, 2024
When Determining Task Order Value for GAO Protest Jurisdiction, Look to What the Task Order Says, Not What the Agency May Do
Subject to limited exceptions, GAO’s bid protest jurisdiction over Department of Defense (DoD) awards of task orders under multiple-award contracts is limited to those “valued in excess” of $25 million. While that seems straightforward enough, GAO’s recent decision in ELS, Inc.,
Crowell and Moring LLP · Jan 16, 2024
Let’s Talk FCA
Cost Accounting and the False Claims Act In this episode, Jason Crawford, Agustin Orozco, and Erin Rankin look back at one of the more noteworthy settlements of 2023—the $377M settlement by Booz Allen Hamilton to resolve allegations arising out of the company’s purported non-comp
Crowell and Moring LLP · Jan 12, 2024
ASBCA Allows Subcontractors’ Pandemic-Related Claims to Move Forward
On December 20, 2023, the Armed Services Board of Contract Appeals (Board) denied the government’s motion to dismiss a prime contractor’s pandemic-related claims filed on behalf of its subcontractors. The Board rejected the government’s arguments that the claims failed to state a
Crowell and Moring LLP · Jan 12, 2024
December Bid Protest Sustain of the Month
The following is the final installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series. All through 2023, Crowell’s Government Contracts Practice kept you up to date with a summary of the most notable bid protest sustain decision each month. Below, we cap off 2
Crowell and Moring LLP · Jan 11, 2024
No Longer Cloudy: DoD Issues New Guidance on FedRAMP Moderate Equivalency Cloud Security Requirements
The Department of Defense (DoD) recently published a memorandum clarifying what it means for a cloud service provider (CSP) to be Federal Risk and Authorization Management Program (FedRAMP) Moderate baseline “equivalent” and meet incident reporting requirements under Defense Fede
Crowell and Moring LLP · Jan 10, 2024
501(c)(4) HOA to Pay Over $2M to Resolve FCA Allegations in Connection with PPP Loan
The San Diego Union-Tribune reports that a homeowners association (HOA) in California has reached an agreement with the Department of Justice (DOJ) to resolve allegations that the HOA obtained approximately $1.5 million in loans through the Paycheck Protection Program (PPP) that
Crowell and Moring LLP · Jan 5, 2024
CBCA’s FY 2023 Report – Examining the Numbers
The Civilian Board of Contract Appeals (CBCA) recently published its Annual Report for FY 2023, providing statistics regarding the adjudication of appeals between contractors and civilian agencies such as the Department of State, the Department of Veterans Affairs, the General Se
Crowell and Moring LLP · Jan 5, 2024
The FY 2024 National Defense Authorization Act: Key Provisions Government Contractors Should Know
The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024, signed into law on December 22, 2023, makes numerous changes to acquisition policy. Crowell & Moring’s Government Contracts Group discusses the most consequential changes for government contractors here. The
Crowell and Moring LLP · Jan 5, 2024
Special Edition of the Fastest 5 Minutes:
CMMC This special edition covers DoD’s proposed rule for the Cybersecurity Maturity Model Certification Program, and is hosted by Peter Eyre, Michael Gruden, and Nkechi Kanu. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant
Crowell and Moring LLP · Jan 4, 2024
DoD’s New Year Resolution: A Cybersecurity Maturity Model Certification Program (CMMC) Proposed Rule
On December 26, 2023, the Department of Defense (DoD) released the highly anticipated proposed rule for the Cybersecurity Maturity Model Certification Program (CMMC), a cybersecurity regulatory program that will likely impact most of the government contractor community. Every con
Crowell and Moring LLP · Dec 27, 2023
All Things Protest
Year-End Trends and a Look Ahead to 2024 Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, host Rob Sneckenb
Crowell and Moring LLP · Dec 20, 2023