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In a big change for defense contractors, Congress has amended 10 U.S.C. § 3372 to make clear that a Department of Defense (DoD) contracting officer’s unilateral definitization of an undefinitized contract action is directly appealable to the Armed Services Board of Contract Appeals (ASBCA) or the Court of Federal Claims. Congress’s change (made under Section 803 of the Servicemember Quality of Life Improvement and National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2025) (we report on the FY 2025 NDAA here) is contrary to recent ASBCA and Federal Circuit decisions.

Continue Reading Congress Has Spoken: DoD Unilateral Definitizations are Appealable Government Claims
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On January 3, 2025, the FAR Council released a proposed rule titled Strengthening America’s Cybersecurity Workforce (the Proposed Rule).  The Proposed Rule would amend the Federal Acquisition Regulation (FAR) by standardizing workforce criteria for cybersecurity and information technology support services contracts.  The Proposed Rule implements a 2019 executive order, America’s Cybersecurity Workforce, which emphasized the strategic importance of a strong cybersecurity workforce.  Comments will be accepted until March 4, 2025, and the FAR Council specifically invites comments on the Proposed Rule’s impact on small entities.

Continue Reading NICE and Easy: Proposed Cybersecurity FAR Amendment Incorporates NICE Framework, Standardizing Cybersecurity Workforce Descriptions
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Mandatory climate disclosures for US federal contractors are officially off the table—at least, for the foreseeable future.  On January 10, 2025, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration announced that they are withdrawing a proposed rule, “Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk,” which would have required thousands of federal contractors to inventory and publicly disclose their Scope 1 and Scope 2 greenhouse gas (GHG) emissions and would also have required  “major” contractors to also establish and validate GHG emission-reduction targets tailored to the goals of the Paris Agreement.  The proposed rule, discussed in further detail here, was introduced in November 2022 and resulted in thousands of public comments from the government contractor community and beyond. 

Continue Reading FAR Council Withdraws Proposed Mandatory Climate Disclosures for Federal Contractor Rule
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On January 2, 2025, the U.S. Department of Defense (DoD) updated the 1260H List of entities identified as “Chinese military companies” (CMC) operating in the United States, as required by section 1260H of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 (Section 1260H), adding new entities and removing others.  The updated 1260H List now includes 76 entities. 

Continue Reading New Year, Updated List: The U.S. Department of Defense Updates Its List of Chinese Military Companies with Ancillary Supply Chain and USG Contracting Impacts
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The Civilian Board of Contract Appeals (CBCA or Board) recently published its Annual Report for FY 2024, providing statistics regarding the adjudication of appeals between contractors and civilian agencies. This year, the civilian agencies with the highest number of docketed claims at the Board were the Department of Veterans Affairs, the General Services Administration, the Department of State, the Department of Homeland Security, and the Department of Agriculture. These agencies accounted for 126, or 76%, of the 165 Contract Disputes Act (CDA) appeals docketed at the Board. 

Continue Reading CBCA’s FY 2024 Report – Examining the Numbers
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On December 17, 2024, the Civilian Board of Contract Appeals (Board) announced its plan to launch a new Electronic Docketing System (EDS).  Once implemented, the Board will require use of the new EDS for most submissions. 

For individuals already registered with the Government Accountability Office’s Electronic Protest Docketing System (EPDS), the EDS interface and functionality will be similar.  As with EPDS, it appears that EDS submissions will be accessible only to those private-party and agency representatives litigating the matter.

The Board originally planned to launch the new EDS on January 1, but the Board has temporarily postponed the launch to allow practitioners more time to register.  In the meantime, contractors and their counsel should be aware of this impending change and review the Board’s guidance (linked here) to ensure timely and appropriate filings in CDA appeals and FEMA arbitrations.

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Labor and Employment under the New AdministrationThis week’s special edition focuses on what contractors can expect from the incoming administration relating to labor and employment matters, and is hosted by Peter Eyre and Kris Meade. 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 | SoundCloud | Apple Podcasts 

The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, 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 Consultant Cherie Owen discusses DecisionPoint Corporation- fka Emesec Inc., in which GAO sustained a protest where the agency failed to consider the impact of a recent corporate transaction on an offeror’s pending proposal.

Continue Reading November 2024 Bid Protest Sustain of the Month: GAO Reminds Agencies that They Must Consider the Impact of a Corporate Transaction When Evaluating Proposals
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New Administration – Domestic Preferences and Supply Chain Security

This week’s special edition focuses on what contractors can expect from the incoming administration relating to domestic preferences, supply chain security and sourcing, and evolving requirements and enforcement, and is hosted by Yuan Zhou, Addie Cliffe, and Alex Barbee-Garrett. 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 | SoundCloud | Apple Podcasts 

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On Monday, November 18, 2024, the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) announced that it had finalized the regulatory changes previewed in April that will enhance certain CFIUS procedures and sharpen its penalty and enforcement authorities.[1]  The changes go into effect on December 26, 2024 and as described in more detail below: (a) expand the types of information that CFIUS can require transaction parties and other persons (i.e., third-parties) submit when engaging with them on transactions that were not filed with CFIUS; (b) broaden the instances in which CFIUS may use its subpoena authority, including when seeking to obtain information from third persons not party to a transaction notified to CFIUS and in connection with assessing national security risk associated with non-notified transactions; and (c) substantially increase monetary penalties for violations of CFIUS regulations from a maximum of U.S. $250,000 to U.S. $5 million per violation, or the value of the transaction, whichever is greater.

Continue Reading CFIUS Finalizes Regulations to Increase Penalties, Expand Subpoena Authority, and Enhance Enforcement Authorities to Protect National Security