Government Contracts Legal Forum
Legal analysis of government contracting.
FAR Council’s Cyber Harvest: New Incident Reporting and Federal Information System Requirements Await Government Contractors
Almost a decade after the Department of Defense developed rules requiring mandatory reporting of cyber incidents, on October 3, 2023, the Federal Acquisition Regulation (FAR) Council released new proposed rules—one addressing cyber incident reporting and another addressing cybers
Crowell and Moring LLP · Oct 4, 2023
Biden Administration Moves Closer to Establishing Framework for Giving Preference to Bids and Contractors with Lower GHG Emissions
On September 21, 2023, the White House directed federal agencies to incorporate interim Social Cost of Greenhouse Gases (SC-GHG) estimates into a wide range of federal agency actions, including each agency’s procurement function. This most recent direction builds upon the Adminis
Crowell and Moring LLP · Oct 3, 2023
A Brief Primer on the Impact of a Federal Government Shutdown
I. Introduction A U.S. federal government shutdown creates a number of direct and indirect consequences that impact U.S. companies, individuals and virtually every aspect of the U.S. economy. Although the federal government has experienced previous lapses in funding that have led
Crowell and Moring LLP · Sep 29, 2023
Fastest 5 Minutes Special Edition: Answering Questions About A Potential Government Shutdown
This special edition of the Fastest 5 Minutes podcast covers common questions—and answers—about a potential government shutdown. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory dev
Crowell and Moring LLP · Sep 25, 2023
Common Questions—and Answers—About A Potential Government Shutdown
Congress has not passed crucial funding bills for the start of the fiscal year 2024. If Congress does not act by September 30, the government may be forced to shut down for lack of funding. While Congress may yet act, agencies across the government are preparing for a shutdown, a
Crowell and Moring LLP · Sep 20, 2023
DOE Class Deviation Softens FAR Requirement for Continuous SAM Registration
On September 6, 2023, the Department of Energy (DOE) issued a Class Deviation removing the FAR 52.204-7 requirement that a contractor maintain its System for Award Management (SAM) registration for the entire time from proposal submission until contract award, without any lapse.
Crowell and Moring LLP · Sep 19, 2023
Fastest 5 Minutes: Claims and False Claims Act
This week’s episode covers a Federal Circuit decision about jurisdiction under the Contract Disputes Act, a claim for additional costs relating to COVID related delays, and a False Claims Act settlement touching on cybersecurity and self-disclosure, and is hosted by Peter Eyre an
Crowell and Moring LLP · Sep 15, 2023
Civil Cyber-Fraud Settlement Highlights Potential for Cooperation Credit
A False Claims Act (FCA) settlement recently announced by the U.S. Department of Justice stands at the intersection of two evolving trends: DOJ’s increasing focus on cybersecurity lapses by government contractors as part of its Civil Cyber-Fraud Initiative, and DOJ policies incen
Crowell and Moring LLP · Sep 12, 2023
BABA Black Sheep, Have You Final Rules? OMB Issues Final Implementation Guidance on Build America, Buy America Requirements for Federally Funded Infrastructure Projects
On August 23, 2023, the Office of Management and Budget (OMB) released its final rule and notification of final guidance addressing implementation of the Build America, Buy America Act (BABA) provisions enacted with the Infrastructure Investment and Jobs Act (IIJA), which require
Crowell and Moring LLP · Sep 8, 2023
Strike When the Iron is Hot: Court of Federal Claims Found a Contractor’s Defense to a Termination Was Precluded by its Failure to Previously Assert Those Claims in Litigation Before the ASBCA
On August 25, 2023, in ECC CENTCOM Constructors, LLC v. United States, COFC No. 21-1169, the U.S. Court of Federal Claims (“the Court” or “COFC”) barred ECC CENTCOM Constructors, LLC (“ECC”) from asserting claims that should have been asserted before the Armed Services Board of C
Crowell and Moring LLP · Sep 8, 2023
COVID Costs Claim Succeeds: Contractor Entitled to Recover for Performance of Contract Despite Base Closure
In StructSure Projects, Inc., ASBCA No. 62927, the Armed Services Board of Contract Appeals (Board) granted an appeal seeking recovery for increased costs resulting from the COVID-19 pandemic. The underlying task order involved design and alteration services for existing medical
Crowell and Moring LLP · Sep 5, 2023
Sum-Thing Is Missing from the Contract Disputes Act: Federal Circuit Holds that “Sum Certain” Requirement is Non-Jurisdictional
In ECC Int’l Constructors Inc. v. Army, No. 2021-2323 (Fed. Cir. Aug. 22, 2023), the Court of Appeals for the Federal Circuit overturned longstanding precedent by holding that the requirement to state a “sum certain” in a claim submitted under the Contract Disputes Act (CDA) is n
Crowell and Moring LLP · Sep 1, 2023
Fastest 5 Minutes: Commercial Solutions Opening, Bid Protests, 8(a) Program
This week’s episode covers a new DFARS provision about Commercial Solutions Opening, a bid protest decision about timeliness, significant developments in the SBA’s 8(a) Business Development Program, and updates to the Davis-Bacon Act and Related Acts, and is hosted by Peter Eyre,
Crowell and Moring LLP · Sep 1, 2023
Bite Your Tongue or Eat Your Words: GAO Reminds Contractors that Correspondence with the Agency Can Be Construed as an Agency-Level Protest, Doubling Down on a Timeliness Trap
When faced with a dissatisfying debriefing, a contractor may choose to respond to the agency to question or even rebut its evaluation. However, the recent Government Accountability Office (GAO) decision in NikSoft Systems Corporation (NikSoft) serves as an important reminder that
Crowell and Moring LLP · Aug 31, 2023
Let’s Talk FCA: Pandemic Relief Fraud
In this episode, Jason Crawford, Olivia Lynch, and Agustin Orozco discuss government investigations and enforcement trends regarding pandemic relief fraud. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act. Listen: Crowell.c
Crowell and Moring LLP · Aug 31, 2023
Current Participants in the SBA 8(a) Program – Be on the Lookout for Outreach on Social Disadvantage
The Small Business Administration has begun outreach to current participants in its 8(a) Business Development Program regarding the impact of the U.S. District Court for the Eastern District of Tennessee’s July 19, 2023 decision enjoining SBA from applying a rebuttable presumptio
Crowell and Moring LLP · Aug 23, 2023
Fastest 5 Minutes: Regulatory Updates, Bid Protests
This week’s episode covers a final DOL rule relating to OFCCP’s pre-enforcement resolution procedures, regulatory updates on sustainable procurement and CMMC, and a bid protest decision regarding unfair competitive advantage, and is hosted by Peter Eyre and Yuan Zhou. Crowell & M
Crowell and Moring LLP · Aug 17, 2023
Executive Order and Rulemaking on U.S. Outbound Investment
Proposed U.S. Outbound Investment Regulations The Outbound Investment Program will be implemented through regulations issued by Treasury that will require notification for, or will otherwise prohibit U.S. persons from undertaking, certain transactions involving “covered national
Crowell and Moring LLP · Aug 16, 2023
No End in Sight: The Long Tail of COVID Relief Fraud Enforcement
Although the COVID-19 public health declaration officially ended in May, government investigations of pandemic relief fraud are from over. As observed in a recent report by the Small Business Administration Office of Inspector General, investigations will likely ensue for years t
Crowell and Moring LLP · Aug 15, 2023
Float Like a Butterfly (Valve), Sting Like a B(AA Requirement): GAO Issues Rare Decision Sustaining Challenge to Agency’s Application of the Buy American Act
In a polarized political environment, one area of bipartisan agreement in recent years has been renewed interest in leveraging government purchasing power to promote the domestic manufacturing base by expanding and strengthening federal “Buy America” requirements. For direct fede
Crowell and Moring LLP · Aug 14, 2023
All Things Protest: COFC Finds Agency’s Reliance on GAO Key Personnel Ruling Irrational
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, hosts Christian Curran and Rob Sneckenberg discuss the lat
Crowell and Moring LLP · Aug 14, 2023
“Made” in America redux: President Biden Proposes Leveraging Federal Research Funding to Further Promote the Domestic Manufacturing Base
Last week, the Federal Register published President Biden’s Executive Order on Federal Research and Development in Support of Domestic Manufacturing and United States Jobs \[1\] (Executive Order), which requires federal agencies \[2\] to emphasize domestic manufacturing in resear
Crowell and Moring LLP · Aug 10, 2023
July 2023 Bid Protest Sustain of the Month
The following is an installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series. All through 2023, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month. Below, Crowell Partne
Crowell and Moring LLP · Aug 8, 2023
Fastest 5 Minutes: False Claims Act, Cybersecurity
This week’s episode covers two notable False Claims Act settlements and the White House National Cybersecurity Strategy Implementation Plan, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of si
Crowell and Moring LLP · Aug 3, 2023
He’s a Material Guy in a Material World: Senator Grassley Proposes FCA Amendments to Weaken Materiality Defense Where Government Pays Despite Knowledge of Non-Compliance
The continual push and pull between the courts and Congress over the contours of the False Claims Act (“FCA”) has once again spawned proposed legislation unfavorable to FCA defendants, this time poised to curtail defense arguments that continued government payment of claims in th
Crowell and Moring LLP · Aug 2, 2023