The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a final rule, effective September 10, 2021, that updates the Federal Acquisition Regulation to conform to two changes regarding small business subcontracting, namely by providing examples of what does—and what does not—constitute good faith efforts to comply with a small business subcontracting plan, as well as when indirect costs must be used in commercial subcontracting plans. The…

Government Contracts Legal Forum

FAR Conformed to the “New” Limitations on Subcontracting Methodology at 13 C.F.R. § 125.6

By Amy Laderberg O'Sullivan, Olivia Lynch, Michael Samuels & Zachary Schroeder

September 15, 2021

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a final rule, effective September 10, 2021, that finally updates the methodology to calculate compliance with the limitations on subcontracting. The NDAA: Section 1651 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (15 U.S.C. 657s) revised and standardized the limitations on subcontracting, including the nonmanufacturer rule, that apply to small business concerns. Implementation…

Government Contracts Legal Forum

GAO Rules that DoD May Not Require a Small Business Joint Venture Itself to Hold Facility Clearance

By Peter J. Eyre, Adelicia R. Cliffe, Jonathan M. Baker, Olivia Lynch & Michael Samuels

September 8, 2021

In an August 27, 2021 decision, GAO sided with protester InfoPoint LLC (“InfoPoint”), and the Small Business Administration (“SBA”) which was invited to submit comments, in finding that a Department of Defense (“DoD”) solicitation provision requiring a small business joint venture offeror to itself hold a facility clearance was inconsistent with the National Defense Authorization Act for Fiscal Year 2020 (“2020 NDAA”) and SBA’s regulation at 13 C.F.R. §121.103. GAO ruled that the 2020…

Government Contracts Legal Forum

Byte-Sized Q&A: Part 2 – The NIST DoD Assessment Clauses

By Kate M. Growley, CIPP/G, CIPP/US & Evan D. Wolff

September 7, 2021

Crowell & Moring’s “Byte-Sized Q&A” podcast takes the complex world of government contracts cybersecurity and breaks it down into byte-sized pieces. In this second episode of a three-part series, hosts Kate Growley and Evan Wolff overview the high points from the new DFARS clauses 252.204-7019 and -7020. Listen: Crowell.com | PodBean | SoundCloud | Apple Podcasts …

Government Contracts Legal Forum

Fastest 5 Minutes – Procurement Integrity Act, COVID Contracting, and Small Business

By Peter J. Eyre & Monica DiFonzo Sterling

August 23, 2021

This week’s episode covers a bid protest relating to a Procurement Integrity Act matter, government reports about COVID contracting, and final rules relating to small businesses and subcontracting, and is hosted by Peter Eyre and Monica Sterling. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without. Listen: Crowell.com | PodBean |…

Government Contracts Legal Forum

Fastest 5 Minutes: Buy American Act, the False Claims Act, and COVID Vaccines and Protocols for Contractors

By Peter J. Eyre & M.Yuan Zhou

August 10, 2021

This week’s episode covers a White House announcement about COVID vaccines and safety protocols for contractors working at government sites, proposed rule regarding Buy American Act, GSA announcement about transitioning from the Data Universal Numbering System (DUNS) system in SAM.gov, and pending legislative amendments to the False Claims Act, 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 significant…

Government Contracts Legal Forum

Multiple Post-Argus Decisions Hold No “Assurance of Confidentiality” Required for FOIA Exemption 4

By Daniel W. Wolff, Anuj Vohra, John E. McCarthy Jr. & Monica DiFonzo Sterling

August 6, 2021

In a string of recent cases following the Supreme Court’s 2019 decision in Food Marketing Institute v. Argus Leader Media, multiple courts have held that a party submitting information to the government need not demonstrate it obtained an assurance of confidentiality from the government in order for the agency to justify withholding that information in response to an information request made under the Freedom of Information Act (FOIA). (Crowell & Moring previously wrote about the…

Government Contracts Legal Forum

A focus on multinationals: Whistleblower incentives on the international stage

By Preston Pugh

August 5, 2021

2020 was one of the first years in memory when many multinationals saw a reduction in the number of internal whistleblower complaints, and a sharp increase in the number of external whistleblower complaints. In this environment, several countries around the world are finding ways to incentivize external whistleblower complaints, including—following the United States’ lead—providing bounties tied to money that governments recover as a result of those complaints. In this article by Crowell & Moring Partner…

Government Contracts Legal Forum

The ASBCA Rejects the Navy’s Attempt to Use a Default Termination as a Sword and Shield

By Nicole Owren-Wiest, Erin Rankin & Matthew Lewis

August 4, 2021

n Ultra Electronic Ocean Systems, Inc., ASBCA No. 62804 (June 17, 2021), the Armed Services Board of Contract Appeals (the “Board”) held that a contracting officer’s letter terminating the contract for default “effective immediately” constituted a Contracting Officer’s Final Decision for the purpose of granting the Board jurisdiction over the contractor’s appeal. In Ultra, the Navy issued a “Notice of Intent to Terminate for Default,” stating that “effective immediately . . . , the Government hereby exercises its…

Government Contracts Legal Forum

Buy (Even More) American – FAR Council Proposes New Rules Implementing Executive Order 14005, “Ensuring the Future is Made in All of America by All of America’s Workers”

By Adelicia R. Cliffe, Alan W. H. Gourley, Abi Stokes & Liam O'Reilly

August 3, 2021

On July 30, 2021, the FAR Council published a Proposed Rule to implement President Biden’s January 2021 Executive Order seeking to maximize the use of American-made products and materials in federal procurements. Coming just six months after a recent January 2021 Final Rule increasing both the domestic content percentage and the price evaluation preferences for U.S. products and materials under the Buy American Act, the Proposed Rule would further increase the domestic content percentage for…

Government Contracts Legal Forum

Providing Legal Insight for Government Contractors

Blog Authors

Assessing Good Faith Efforts to Comply with a Small Business Subcontracting Plan

FAR Conformed to the “New” Limitations on Subcontracting Methodology at 13 C.F.R. § 125.6

GAO Rules that DoD May Not Require a Small Business Joint Venture Itself to Hold Facility Clearance

Byte-Sized Q&A: Part 2 – The NIST DoD Assessment Clauses

Fastest 5 Minutes – Procurement Integrity Act, COVID Contracting, and Small Business

Fastest 5 Minutes: Buy American Act, the False Claims Act, and COVID Vaccines and Protocols for Contractors

Multiple Post-Argus Decisions Hold No “Assurance of Confidentiality” Required for FOIA Exemption 4

A focus on multinationals: Whistleblower incentives on the international stage

The ASBCA Rejects the Navy’s Attempt to Use a Default Termination as a Sword and Shield

Buy (Even More) American – FAR Council Proposes New Rules Implementing Executive Order 14005, “Ensuring the Future is Made in All of America by All of America’s Workers”

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