McCarter & English, LLP

The Trump administration’s focus on enhancing “Buy American” requirements in federal procurement took a leap forward on July 15, 2019, with the issuance of an Executive Order (EO) on Maximizing Use of American-Made Goods, Products, and Materials.  Unlike the administration’s previous executive orders – Executive Order 13788 of April 18, 2017 (Buy American and Hire American) and Executive Order 13858 of January 31, 2019 (Strengthening Buy American Preferences for Infrastructure Projects), this EO contains…
As DOD continues to expand its supply chain cybersecurity demands on federal contractors, McCarter & English Government Contracts and Export Controls co-leaders Alex Major and Franklin Turner provide critical guidance for federal contractors in a two-part Feature Comment for Thomson Reuters’ The Government Contractor. In the comprehensive article they address not only the recent and planned updates to NIST publications, but also weigh those efforts against Defense Contract Management Agency’s (DCMA) auditing efforts, the revised…
DoD’s recent efforts to address cybersecurity have caused confusion and chaos for Government contractors. As we all know, cybersecurity is an issue that is impossible to ignore, and the sobering reality is that compliance with federal cybersecurity requirements is critical to avoiding catastrophic liability. Recently, McCarter & English Government Contracts and Export Controls co-leaders Alex Major and Franklin Turner provided much-needed guidance for federal contractors in a two-part Feature Comment for Thomson Reuters’ The Government…
As we stated last month, further restrictions are afoot on the use of Chinese technology in federal acquisitions. An Interim Rule issued by the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) (collectively, the “FAR Council”) implements the first phase of Section 889 of the FY2019 National Defense Authorization Act (NDAA). The Interim Rule, effective August 13, 2019, broadly prohibits federal agencies, federal contractors, and grant or…
Changes to the Federal Acquisition Regulation’s (FAR) small business subcontracting rules have been slow in coming, but the FAR Council is finally catching up with the Small Business Administration (SBA) in making regulatory modifications to implement a few changes intended to help prime contractors reach their small business subcontracting goals as required by Section 1614 of the National Defense Authorization Act of 2014 (2014 NDAA). Specifically, the changes focus on aiding prime contractors possessing an…
As we reported last month, the Department of Defense (DoD) has been engaging in an unusual rollout of its new cybersecurity certification program by way of  road tours—led by Katie Arrington, the Special Assistant to the Assistant Secretary of Defense for Acquisition and Sustainment for Cyber—that address the tiered, five-level Cybersecurity Maturity Model Certification (CMMC). At bottom, DoD intends for the CMMC to help streamline the acquisition process by providing acquiring agencies and consenting…
Every government contractor hesitates and ponders whether information confidential and valuable to its business that is disclosed – either voluntarily or by compulsion – in a submission to a U.S. Government agency will be protected from release to a third party pursuant to that dreaded four-letter acronym: F-O-I-A. In a June 24, 2019, landmark decision, the U.S. Supreme Court, in Food Marketing Institute v. Argus Leader Media[1], has spoken for the first time…
Cough…cough…ahem…cough… Any contractor who has had the misfortune of dealing with the Defense Contract Audit Agency (DCAA) likely knows all too well that the agency is the Will Rogers of costs – it never met a cost it didn’t question.  Indeed, DCAA auditors typically question costs with reckless abandon and based often on a patent misreading of applicable regulations.  The net effect, of course, is that contractors have to expend significant time and money trying…
Cybersecurity. It’s never over, is it? In what can only be described as a “soft” release, the Department of Defense (DoD) has slowly and quietly begun to reveal its intent to provide federal contractors with formal cybersecurity certification as early as next year. The program, known as the Cybersecurity Maturity Model Certification (CMMC), is an effort to streamline the acquisition process by providing acquiring agencies and consenting contractors with more exacting cybersecurity requirements for forthcoming…
Here’s another reminder of limitations that exist when there is a third party claim of infringement against a U.S. Government agency. In such a case, the patent owner must sue in the United States Court of Federal Claims and may recover only “reasonable and entire compensation” for the unauthorized use. See 28 U.S.C. Section 1498(a). No injunctive relief is afforded the plaintiff.  Within the context of that proceeding, the Government agency is free to seek a determination that…