Photo of Adelicia R. Cliffe

Adelicia Cliffe is a partner in the Washington, D.C. office, a member of the Steering Committee for the firm's Government Contracts Group, and a member of the International Trade Group. Addie is also co-chair of the firm’s National Security practice. Addie has been named as a nationally recognized practitioner in the government contracts field by Chambers USA.

This special edition of the Fastest 5 Minutes podcast covers recent developments related to the Infrastructure Bill and Inflation Reduction Act, and key areas to watch in 2023. The podcast features a cross practice team of Crowell partners, so we offer perspectives from tax, energy, labor and employment, government contracts, ESG, environmental, and government affairs.

The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023, signed into law on December 23, 2022, makes numerous changes to acquisition policy. Crowell & Moring’s Government Contracts Group discusses the most consequential changes for government contractors here. These include changes that provide new opportunities for contractors to recover inflation-related costs, authorize new programs for small businesses, impose new clauses or reporting requirements on government contractors, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2023 NDAA also includes the Advancing American AI Act, the Intelligence Authorization Act for FY 2023, and the Water Resources Development Act of 2022, all of which include provisions relevant for government contractors.

Continue Reading FY 2023 National Defense Authorization Act: Key Provisions Government Contractors Should Know

The Department of Justice has announced a $14 million False Claims Act (FCA) settlement with Coloplast, a medical product manufacturer, after Coloplast self-disclosed violations of the Trade Agreements Act (TAA) and Price Reduction Clause (PRC) while under contract with the Department of Veterans Affairs (VA).  The TAA requires contractors to furnish end products that are U.S.-made or “substantially transformed” in designated countries.  Coloplast disclosed that it misapplied the substantial-transformation standard, causing Coloplast to report incorrect countries of origin for products and to improperly retain certain products on contract after manufacturing moved to non-designated countries.  Coloplast also disclosed that it overbilled the Government by failing to provide the VA with discounts pursuant to the terms of the PRC, which normally requires tracking discounts offered to designated commercial customers and offering corresponding downward price adjustments to VA customers. 

Continue Reading FCA Settlement Offers Reminder of the Importance of TAA and PRC Compliance

On December 1, 2022, Department of Defense (DoD) Secretary Lloyd J. Austin III announced the establishment of the DoD Office of Strategic Capital (OSC).  The mission statement of the OSC is to build an “enduring technical advantage” for the United States by helping partner contractors with private investment to develop national security critical technologies, including those related to advanced materials, next-generation biotechnology, and quantum science.  OSC will coordinate with existing organizations such as the Defense Advanced Research Projects Agency (DARPA) and the Defense Innovation Unit (DIU), which promotes acceleration of the military use of commercial technologies.

The OSC intends to offer what it characterizes as “patient” extended-term capital to help contractors obtain financing between the early laboratory-testing and prototyping phases and the full-scale development of products that can be used by the DoD warfighter.  In addition to traditional vehicles like contracts and grants, this investment will likely take the form of loans and loan guarantees.

Continue Reading Department of Defense Establishes Office of Strategic Capital to Enhance Investment in National Security Critical Technology

On September 15, 2022, the Biden Administration issued a new executive order (“EO”) and accompanying fact sheet, designed to sharpen the current U.S. foreign investment screening process as administered by the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”). [1] This EO is the first to specifically identify certain additional national security factors for CFIUS to consider when evaluating transactions involving foreign investors. 

While the EO does not expand the jurisdiction of CFIUS or establish new requirements, the EO formally directs CFIUS to focus on transactions that could give foreign parties access to U.S. technologies, data, or critical supply chains that the Biden Administration has identified as important for maintaining U.S. economic and technological edge. The EO does not mention any specific country, but underscores the threat posed by inbound investments “involving foreign adversaries or other countries of special concern,” which may appear to be only economic transactions for commercial purposes but could “actually present an unacceptable risk to United States national security due to the legal environment, intentions, or capabilities of the foreign person, including foreign governments involved in the transaction.” [2]

Continue Reading Biden Administration Announces Presidential Directive on Sharpening Foreign Investment Screening by CFIUS

Not to be outdone by the Department of Defense’s commitment to consider inflation relief, on September 12, 2022, the General Services Administration (“GSA”) Federal Acquisition Service published a Supplement to Acquisition Letter MV-22-02, extending and enhancing policies to provide inflation relief to GSA Schedule contractors.  As we previously explained, the original Acquisition Letter relaxed

On September 8, 2022, the Department of Defense (“DoD”) issued Class Deviation 2022-O0009 (the “Deviation”) immediately authorizing contracting officers to allow active registration in the System for Award Management (“SAM”) within 30 days of contract award or three days prior to submission of the first invoice (whichever comes first) rather than at the time of award—provided the contractor can prove it has initiated or attempted to start the SAM registration process.  The Deviation is in effect through October 31, 2022 unless rescinded or extended.

The SAM registration process, which changed in April 2022 when GSA switched from the DUNS number to the Unique Entity Identifier (“UEI”), has suffered from significant delays and system errors.  These system challenges continue, and SAM incident tickets continue to take weeks to process in many cases.  With this Deviation, DoD joins a number of other agencies that have already issued guidance for managing SAM delays that may affect contracts or grants.

Continue Reading DoD Issues Deviation for SAM Registration Requirement Due to Ongoing Processing Delays

This special edition of the Fastest 5 Minutes podcast covers recent developments related to domestic preferences including executive orders, final regulations, the Made in America Office, and the Infrastructure Investment and Jobs Act, and is hosted by Peter Eyre, Addie Cliffe, and Allison Skager. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that

On August 25, 2022 the Defense Acquisition Regulations System published two new DFARS clauses prohibiting the award of covered Department of Defense (“DoD”) contracts to contractors that leverage resources in China unless those resources are disclosed.  Implementing Section 855 of the FY22 National Defense Authorization Act and effective immediately, the clauses are DFARS 252.225-7057 “Preaward Disclosure of Employment of Individuals Who Work in the People’s Republic of China” and DFARS 252.225-7058 “Postaward Disclosure of Employment of Individuals Who Work in the People’s Republic of China.” These clauses will be incorporated into DoD solicitations and contracts with an estimated value over $5 million unless a senior procurement executive waives the disclosure requirements due to national security interests.  The requirements do not apply to contracts for commercial products and commercial services, including contracts for commercially available off-the-shelf (“COTS”) items, or to contracts at or below the simplified acquisition threshold (currently $250,000).

Continue Reading DoD Rule on Reporting Employees in China Published and In Effect This Week

On July 18, the GSA Office of the Inspector General (OIG) issued an Alert Memorandum both broadcasting and criticizing the Federal Acquisition Service’s (FAS) apparent decision to expand the Transactional Data Reporting (TDR) rule to the entire Multiple Award Schedule (MAS). The TDR Pilot Program studied the potential for TDR to reduce the compliance burdens of the MAS program by replacing the various requirements Federal Supply Schedule (FSS) contractors must fulfill to ensure the pricing offered to GSA customers is fair and reasonable, including the obligation to make Commercial Sales Practice disclosures and to track commercial pricing and discounts to the negotiated Basis of Award customer under the Price Reductions Clause. The GSA OIG previously criticized the TDR Pilot Program.

Continue Reading TDR Wars—Episode V: OIG Strikes Back