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Photo of Adelicia R. CliffePhoto of Evan D. WolffPhoto of Alexander UrbelisPhoto of M.Yuan ZhouPhoto of Michael G. Gruden, CIPP/GPhoto of Alexandra Barbee-GarrettPhoto of Jacob Harrison

On June 2, 2023, the FAR Council issued an Interim Rule with immediate effect that prohibits the presence or use of the TikTok app on “information technology” (IT) equipment used by government contractors and contractor personnel in the performance of a contract. The interim rule mirrors the Office of Management and Budget’s guidance, which directed federal agencies to remove TikTok and successor apps made by Chinese company ByteDance Limited from federal devices (to implement the No TikTok on Government Devices Act).

Continue Reading Save the Last (Byte) Dance: New Interim Rule Bars TikTok and Successor ByteDance Apps

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Federal contractors must be registered on SAM.gov to be eligible for award of federal contracts.  Failure to do so can have significant consequences, as the recent U.S. Court of Federal Claims (CFC) decision in Myriddian, LLC v. United States, No. 23-443 makes clear. 

In Myriddian, the Centers for Medicare & Medicaid Services (CMS)…

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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 the underlying dispute on remand to the Army Board…

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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 requirements introduced by last fall in Office of Management and Budget (OMB) Memorandum M-22-18. The Form requires certain software developers to attest to specific security elements of their software development life cycle (SDLC) and their development environment. 

Background

In May 2021, the Biden Administration issued Executive Order (EO) 14028, “Improving the Nation’s Cybersecurity.”  The EO directed the federal government to prioritize software supply chain security, including by creating secure software development practices for federal software acquisitions.  Pursuant to the EO, in February 2022 the National Institute of Standards and Technology (NIST) published NIST Special Publication 800-­218 and the NIST Software Supply Chain Security Guidance (collectively, the NIST Secure Software Development Framework, or NIST SSDF), providing software development-focused security controls and best practices for federal agencies and their commercial software partners. 

OMB Memorandum M-22-18, published on September 14, 2022, requires companies providing software to the federal government to complete the self-attestation form to certify that they comply with the NIST SSDF controls and guidance whenever third-party software is used on government information systems or otherwise affects government information. …

Continue Reading CISA Releases Draft Secure Software Development Self-Attestation Form

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Last week, on March 9, 2023, in Percipient.ai, Inc. v. United States, the Court of Federal Claims held that Percipient.ai, Inc. (“Percipient”) had standing to protest a National Geospatial-Intelligence Agency (“NGA”) procurement called “SAFFIRE” intended to improve the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s complaint, filed in January of this year, argued that SAFFIRE violates the statutory mandate at 10 U.S.C. § 3453 to procure commercial items “to the maximum extent practicable.”  The Court’s conclusion that Percipient had standing to protest is notable because (1) NGA issued the SAFFIRE solicitation in January 2020 (over three years ago); (2) NGA awarded the SAFFIRE contract to CACI, Inc. – Federal (“CACI”) in January 2021 (over two years ago); and (3) Percipient never submitted a proposal in response to the solicitation. 

The Government and CACI moved to dismiss Percipient’s complaint, arguing, among other things, that Percipient lacked standing to protest because it had not submitted a proposal and therefore was not an “interested party,” and because the protest—filed two years after contract award—was in fact a challenge to NGA’s administration of the SAFFIRE contract.  The Government and CACI also argued that the protest was untimely under the Federal Circuit’s decision in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), which generally requires that protests challenging the terms of a solicitation be filed before the proposal due date.

Continue Reading Court of Federal Claims Holds Non-Bidder Has Standing to Protest Two Years After Contract Award

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On March 8, 2023, the Biden Administration announced a further opportunity for companies to take advantage of significant federal funding intended to promote clean manufacturing and reduce greenhouse gas emissions in federal procurement.  In line with the Biden Administration’s push to implement a clean energy economy (as we have previously covered, for example, here and …

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On February 28, 2023, the Commerce Department released the first Notice of Funding Opportunity (“First NOFO”) under the recently enacted CHIPS and Science Act (CHIPS Act), P.L. 117-167.  The First NOFO seeks applications for assistance—including direct funding, loans, and loan guarantees—for projects to construct, expand, or modernize commercial semiconductor facilities.  

In addition, the Commerce Department’s CHIPS Program Office announced that it will issue two additional NOFOs this year—a second NOFO for semiconductor materials and manufacturing equipment facilities in the spring of 2023, and a third NOFO for research and development facilities in the fall of 2023.

The First NOFO is focused on the fabrication of leading-edge, current-generation, and mature-node semiconductors and includes both front-end wafer fabrication and back-end assembly, testing, and packaging.  According to the CHIPS Program Office’s webinar on February 28, the Commerce Department has begun accepting statements of interest for all potential applicants.  It will begin accepting full applications on a rolling basis beginning March 31, 2023 for leading-edge manufacturing facilities, and June 26, 2023 for current-generation, mature-node, or back-end manufacturing facilities.

Continue Reading Commerce Department Opens First Round of CHIPS Act Funding for Semiconductor Manufacturers

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On January 23, 2023, in AttainX, the Government Accountability Office (GAO) sustained the protest of an award to an 8(a) joint venture based on, among other reasons, a finding that the agency’s evaluation of the joint venture’s experience was inconsistent with the Small Business Administration (SBA) regulations concerning joint ventures (JVs), citing 13 C.F.R. § 125.8(e) and 13 C.F.R. § 124.513(f).

The protest involved a General Services Administration (GSA) solicitation for IT services to maintain and modernize the USDA Farm Loan Programs systems and applications. The solicitation required offerors to submit a description of their “similar experience” on other contracts. In response, an 8(a) joint venture (MiamiTSPi) submitted two experience examples:

  1. One experience example had been performed by both the 8(a) managing venturer, MTS, and the small business minority venturer, TSPi, but as a different 8(a) certified joint venture, MTSPi LLC. 
  2. The second experience example had been performed by only TSPi, the non-8(a) small business minority venturer. 

GSA evaluated MiamiTSPi as Acceptable under the “similar experience” factor and ultimately made award to MiamiTSPi. Disappointed offeror AttainX protested, arguing, among other things, that even though GSA had only rated MiamiTSPi as Acceptable under “similar experience” as opposed to a higher rating, GSA unreasonably neglected to evaluate the risk associated with the fact that the experience examples submitted by MiamiTSPi were not performed by the joint venture proposed as the prime contractor nor performed individually by the “managing member” of the joint venture.…

Continue Reading When it Comes to Joint Venture Experience, Perfection May Be Hard to Attain(X)

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As previewed in President Biden’s State of the Union Address, the Office of Management and Budget (OMB) issued a proposed rule and notification of proposed guidance on February 9, 2023 to improve uniformity and consistency in the implementation of Build America, Buy America (BABA) requirements applicable to federally funded infrastructure projects pursuant to the Infrastructure Investment and Jobs Act (IIJA).

This proposed rulemaking builds on preliminary guidance OMB issued on April 18, 2022, shortly before the BABA requirements became effective in May 2022. While the preliminary guidance focused heavily on agency waivers (both in terms of process and criteria), the proposed rule describes how the requirements related to manufactured products, iron and steel, and construction material will be interpreted. …

Continue Reading Buy America, by Americans—Office of Management and Budget Solicits Industry Input on Harmonizing Domestic Preference Regimes

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On December 30, 2022, New York Governor signed into law Labor Law Section 240-i, establishing a registration system for contractors and subcontractors engaged in public work and covered private projects in New York. This law will require contractors to register with the New York State Department of Labor (the “Department of Labor”) every two years, by submitting various disclosures about their businesses, in order to ensure that contractors do not have previous labor law violations, and will abide by New York labor laws and regulations, including prevailing wage requirements. The Department of Labor will establish and maintain a public on-line system where registrations and disclosures are available.

Continue Reading New Registration Requirement for Contractors and Subcontractors Performing Public Works and Covered Private Projects in New York