Government Contracts Legal Forum
Legal analysis of government contracting.
Treasury and IRS Release Proposed Guidance on Domestic Content Requirement for Clean Energy Bonus Credit
On May 12, 2023, the Department of Treasury and the Internal Revenue Service (IRS) released Notice 2023-38 (Notice), stating that they intend to propose regulations to address the requirements taxpayers must satisfy when claiming domestic content bonus credit amounts provided by
Crowell and Moring LLP · May 19, 2023
All Things Protest: The Federal Circuit Re-Writes the Rules on Standing, Jurisdiction, and Mid-Protest OCI Considerations
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. Listen: Crowell.com | PodBean | SoundCloud | Apple Podcasts The post All Th
Crowell and Moring LLP · May 19, 2023
Debt Limit Default
Concerns about the federal debt limit have simmered since the Government reached the limit in January, but things are coming to a boil with the Treasury Department’s confirming that, as early as June 1, “extraordinary measures” may be insufficient to prevent the U.S. from default
Crowell and Moring LLP · May 16, 2023
In Control: Supreme Court Reigns-In Second Circuit Fraud Theories
On May 11, 2023, the Supreme Court issued two opinions limiting the reach of the federal fraud statutes and eliminating often-used theories from the government’s arsenal. In Ciminelli v. US, 598 U. S. \\ (2023), the Supreme Court decided that the “right to control” theory—long us
Crowell and Moring LLP · May 16, 2023
Fastest 5 Minutes: Software Security, OFCCP, Claims Timeliness
This week’s episode covers the proposed Secure Software Self-Attestation Common Form issued by CISA, OFCCP’s issuance of a modified version of its initial proposed revisions to the Scheduling Letter and Itemized Listing, and a Civilian Board of Contract Appeals decision about jur
Crowell and Moring LLP · May 15, 2023
Spring Has Sprung New Cyber Requirements: NIST Unveils Draft Revision 3 to NIST SP 800-171
On May 10, 2023, the National Institute of Standards and Technology (NIST) released a draft of NIST Special Publication (SP) 800-171 Revision 3, containing new and revised cybersecurity controls that, when finalized, will be required for federal contractors handling Controlled Un
Crowell and Moring LLP · May 12, 2023
Federal Circuit Reverses COFC and Awards Attorneys’ Fees to Combat Disabled Veteran
On April 26, the Federal Circuit issued a decision in Crawford v. United States (a C&M case), holding that a U.S. Army combat veteran is entitled to recover his attorneys’ fees arising from a dispute related to obtaining medical retirement benefits earned during his service. In t
Crowell and Moring LLP · May 11, 2023
Let’s Talk FCA: FCA’s Knowledge Element Gets Its Day In Court
In this episode, Jason Crawford, Brian Tully McLaughlin, and Agustin Orozco explore the issues before the Supreme Court in two consolidated cases involving the False Claims Act. The hosts discuss the April 18 oral argument in Schutte/Proctor where the question before the Justices
Crowell and Moring LLP · May 10, 2023
Biden Administration Announces End of Contractor COVID Vaccine Mandate
On May 1, 2023, the Biden Administration announced its plan to issue an Executive Order in the coming days to rescind the existing executive order that imposes COVID vaccine requirements and safety protocols on federal contractors. Specifically, Executive Order 14042 on Ensuring
Crowell and Moring LLP · May 2, 2023
CISA Releases Draft Secure Software Development Self-Attestation Form
On April 28, 2023 the Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA) published its long-awaited draft Secure Software Development Self-Attestation Form. The form is a key component of the mandatory software supply chain security requ
Crowell and Moring LLP · May 2, 2023
Fastest 5 Minutes: False Claims Act, Emergency Contracting Measures
This week’s episode covers resolution of False Claims Act allegations relating to alleged payments in violation of the Anti-Kickback Act, cessation of certain emergency contracting measures deployed early in the COVID-19 pandemic, and DoD Instruction 8310.01 relating to DoD IT, a
Crowell and Moring LLP · Apr 28, 2023
If At First You Don’t Succeed: Contractor Successfully Challenges Disallowed IR&D and Compensation Costs
In Voxtel, Inc., ASBCA No. 60129 (March 9, 2023), the Armed Services Board of Contract Appeals (ASBCA) issued a decision that presents a primer on the resolution of indirect cost rate disputes. The ASBCA granted the contractor’s appeal in part, finding that its claimed executive
Crowell and Moring LLP · Apr 24, 2023
YOLO: CBCA Finds that a Contractor Cannot Revive Its Expired Appeal Rights by Resubmitting a Claim
On April 6, 2023, the Civilian Board of Contract Appeals (CBCA), in BES Design/Build, LLC, CBCA 7585.pdf), dismissed a contractor’s appeal for lack of jurisdiction, finding the appeal untimely, and underscoring that a contractor cannot reset the 90-day appeal window by resubmitti
Crowell and Moring LLP · Apr 21, 2023
Class (Deviations) Dismissed: Biden Administration Rolls Back COVID-19 Emergency Measures
On April 18, 2023, the Department of Defense (“DoD”) issued guidance to DoD contracting officers directing the cessation of certain emergency contracting measures utilized during the COVID-19 pandemic. Following the termination of the COVID-19 national emergency declaration throu
Crowell and Moring LLP · Apr 20, 2023
New Jersey Firm Pays $2.2M to Settle FCA Allegations it Received Improper PPP Loan
On April 3, 2023, the U.S. Attorney’s Office for the District of New Jersey announced a settlement with a public relations firm to resolve allegations that the New Jersey company violated the False Claims Act (FCA) by receiving a $2 million second-draw loan from the Paycheck Prot
Crowell and Moring LLP · Apr 14, 2023
Fastest 5 Minutes: 5G Guidance, TikTok, Intracompany Lease Payments
This week’s episode covers GSA’s Acquisition Guidance for Procuring 5G Technology, implementation of OMB’s memo focusing on “No TikTok on Government Devices,” and an ASBCA matter involving intracompany lease payments, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s
Crowell and Moring LLP · Apr 14, 2023
Fair Warning Protection or a “Free Pass to Fleece the Public Fisc”?: SCOTUS Takes Up the Safeco Objective Reasonableness Standard and Subjective Intent Under the FCA
Next Tuesday, April 18, 2023, the highest court in the land will hear arguments in what is poised to be the most influential False Claims Act (FCA) case since the landmark decision in Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). On January 13,
Crowell and Moring LLP · Apr 13, 2023
Third Time’s A Charm: Government Must Reimburse Triple Canopy for Afghan Taxes
In Triple Canopy, Inc., ASBCA Nos. 61415, et al. (March 23, 2023), the Armed Services Board of Contract Appeals (ASBCA) resolved a long-running dispute in favor of the contractor over reimbursement of fees imposed by the Afghan government on large security firms operating in the
Crowell and Moring LLP · Apr 11, 2023
DFARS Final Rule Authorizes ACO to Negotiate and Settle Direct Costs Questioned in Incurred Cost Audits
On March 22, 2023, the Department of Defense (DoD) issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to allow a procuring contracting officer (PCO) to delegate the authority to the contract administration office (CAO) to negotiate and sett
Crowell and Moring LLP · Apr 5, 2023
Proposed Rule Requires Certain Contractors to Provide Export Authorizations to DCMA
On March 22, 2023, the Department of Defense (DoD) issued a proposed rule that would amend the Defense Federal Acquisition Regulation Supplement (DFARS) to require certain contractors to provide export authorizations to the Defense Authorization Management Agency (DCMA). DCMA per
Crowell and Moring LLP · Apr 3, 2023
Fastest 5 Minutes: Supplier Performance Risk System, Procurement Integrity Act
This week’s episode covers a final rule amending the DFARS to incorporate the expanded capabilities of the Supplier Performance Risk System and requirements on contracting officers, a bid protest decision at the Court of Federal Claims regarding standing, and a GAO protest decisi
Crowell and Moring LLP · Mar 30, 2023
Spy Games: Biden Administration Issues Executive Order Restricting Federal Use of Commercial Spyware
Overview On March 27, 2023, President Biden signed the Executive Order on Prohibition on Use by the United States Government of Commercial Spyware that Poses Risks to National Security (EO), restricting federal agencies’ use of commercial spyware. The Biden Administration cited t
Crowell and Moring LLP · Mar 29, 2023
DoD Digs In Its Cyber “SPRS”: New Solicitation Provision Requires Contracting Officers to Consider SPRS Risk Assessments
On March 22, 2022, the Department of Defense (DoD) issued a final rule requiring contracting officers to consider supplier risk assessments in DoD’s Supplier Performance Risk System (SPRS) when evaluating offers. SPRS is a DoD enterprise system that collects contractor quality an
Crowell and Moring LLP · Mar 28, 2023
March Madness: Government Goes for a Slam Dunk and Misses in CAS Dispute
In General Atomics Aeronautical Systems, Inc., ASBCA Nos. 61633, 61731.pdf) (Feb. 8, 2023), released March 14, 2023, the Armed Services Board of Contract Appeals (ASBCA) considered, but declined to answer, the existential question of whether intracompany lease payments are “costs
Crowell and Moring LLP · Mar 24, 2023
Fastest 5 Minutes: National Cyber Security Strategy, CHIPS, Conflicts of Interest
This week’s episode covers the National Cyber Security Strategy, a final DFARS clause requiring disclosure of use of workforce and facilities in the China, the Department of Commerce’s first Notice of Funding Opportunity under the CHIPS and Science Act of 2022, and congressional
Crowell and Moring LLP · Mar 21, 2023