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 Partner Cherie Owen discusses GAO’s decision in Mandex, Inc., involving organizational conflicts of interest (OCIs).
Continue Reading August 2023 Bid Protest Sustain of the Month
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 cybersecurity requirements for contractors maintaining a Federal Information System (FIS). When enacted, these rules could implement new security measures and incident reporting requirements via FAR clauses for contractors across the entire federal government. The “Cyber Threat and Incident Reporting and Information Sharing” proposed rule focuses on increasing the sharing of information about cyber threats between government and private industry, while the “Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems” proposed rule focuses on implementing policies, procedures, and requirements for contractors maintaining an FIS. These rules implement Biden Administration initiatives pursuant to Executive Order (“EO”) 14028, “Improving the Nation’s Cybersecurity” issued in May 2021.
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 to shutdowns of all or part of the federal government, the current funding impasse and impending shutdown raise a number of unique and unprecedented questions for government workers, government contractors and businesses, and the public at large.
A U.S. federal government shutdown can have serious consequences because of the size of federal spending and its impact on the U.S. economy. The U.S. government spent $6.27 trillion dollars in fiscal year 2022 which amounted to approximately 25% of total gross domestic product. The federal government funds over 2,200 federal assistance programs for the public. There are over 2.2 million federal employees who will be directly impacted in some way by a federal government shutdown with the majority facing a furlough of an undetermined length. There are over 11 million U.S. federal government contracts signed every year and they may be impacted by a shutdown. Finally, the federal government spends approximately $1.2 trillion dollars every year, or about 19% of all federal spending, on programs that fund or are related to the states.
The purpose of this Client Alert is to explain the consequences of a government shutdown in general, why this one may be different, and to also offer insights to the regulated industries, government contractors and others on what to expect this time around. Our team is ready and available to help advise companies through this shutdown process.
Continue Reading A Brief Primer on the Impact of a Federal 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, and contractors should do so as well.
The issues that contractors would face under a government shutdown may vary with the circumstances of individual contracts, but there are a number of common considerations.
Continue Reading Common Questions—and Answers—About A Potential Government Shutdown
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 security products or technologies” and entities connected to a “country of concern.” Accordingly – concurrent with the Executive Order – Treasury released an Advance Notice of Proposed Rulemaking that provides some potential definitions of these terms, but the exact definitions and the details of the regulations will be developed through public notice and comment that concludes on September 28, 2023. Treasury also published a Fact Sheet that provides additional information on the proposed details and scope of the outbound investment prohibitions and notification requirements, which will likely not be finalized until 2024 sometime after Treasury has published draft regulations and gathered another round of public comments.
Continue Reading Executive Order and Rulemaking on U.S. Outbound Investment
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 federal procurements subject to the Buy American Act (BAA), this has resulted in revised rules increasing the amount of U.S. content required to qualify a product as domestic, as well as heightened scrutiny of when waivers may be issued exempting a procurement in whole or in part from those requirements (covered here and here).
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 Partner Cherie Owen discusses MPZA, LLC, B-421568, B-421568.2, July 3, 2023, 2023 CPD ¶ 165, in which GAO discussed the amount of documentation needed to support an agency’s price analysis.
On June 23, 2023, a coalition of companies, including venture capital firms like Kleiner Perkins, General Catalyst and Founders Fund, and start-up defense technology companies, published an open letter to the Department of Defense (DoD), addressed to Secretary Lloyd J. Austin, petitioning DoD to consider procurement reform to help “overcome barriers to innovation.” The group asserts these barriers create “antiquated methods for developing requirements and selecting technologies that have drastically limited” DoD’s access to “the best commercial innovation.” In particular, the coalition endorsed adopting four recommendations pulled from a report by The Atlantic Council, a non-partisan international affairs think tank.
First, the letter suggests that DoD modernize to align with the 21stcentury industrial base. The letter acknowledges that DoD has already taken a strong step in this direction by establishing the Defense Innovation Unit (DIU), which reports directly to Secretary Austin and whose mission is to accelerate the adoption of commercial technology. The coalition also encouraged DoD to provide DIU with additional staffing and resources to tap into the non-traditional defense industrial base, reinforce “buy before build” commercial practices, and help DoD speed up validation and approval of needs and funding.
On June 27, 2023, the Small Business Administration (SBA) Office of Inspector General (OIG) reported its estimate that SBA disbursed over $200 billion of potentially fraudulent COVID relief, including Economic Injury Disaster Loans (EIDL) and Paycheck Protection Program (PPP) loans. These possibly fraudulent loans represent at least 17% of all EIDL and PPP funds—or 21%
On May 25, 2023, the General Services Administration (GSA) and Small Business Administration (SBA) announced the launch of the 8(a) Multiple Award Schedule (MAS) Pool Initiative.
This Initiative advances President Biden’s commitment to equity and, in particular, the administration’s goal to increase contracts to small disadvantaged businesses (SBD).
Under the Initiative, GSA is establishing an 8(a) MAS Pool that will include new and existing MAS 8(a) contractors who are current, active 8(a) Program participants and whose contracts have been accepted into the pool by SBA.
Continue Reading GSA and SBA Move Forward with Plans to Establish an 8(a) MAS Pool in July 2023