On January 15, 2025, the Federal Acquisition Regulatory Council issued a Proposed Rule that would implement changes to the Federal Acquisition Regulation (FAR) Organizational Conflict of Interest (OCI) rules as required by the 2022 Preventing Organizational Conflicts of Interest in Federal Acquisition Act (P.L. 117-324). Comments on the Proposed Rule are due on March 17, 2025. (Note that pursuant to President Trump’s January 20, 2025 “Regulatory Freeze Pending Review” Executive Order, the Proposed Rule is subject to further review, which may result in revisions and an extension of the 60-day comment period.)Continue Reading FAR Council Proposes Substantial Changes to OCI Regulations
OMB Releases Guidance to Advance Federal AI Acquisition
On September 24, 2024, the Office of Management and Budget (OMB) released Memorandum M-24-18, Advancing the Responsible Acquisition of Artificial Intelligence in Government (Memo). The 36-page Memo builds on OMB’s March 2024 guidance governing federal agencies’ use of AI, Memorandum M-24-10, which we reported on here. The Memo addresses requirements and guidance for agencies acquiring AI systems and services, focusing on three strategic goals: (i) ensuring collaboration across the federal government; (ii) managing AI risks and performance; and (iii) promoting a competitive AI market.Continue Reading OMB Releases Guidance to Advance Federal AI Acquisition
Natural Intelligence: NIST Releases Draft Guidelines for Government Contractor Artificial Intelligence Disclosures
On August 21, 2024, the National Institute of Standards and Technology (NIST) released the Second Public Draft of Digital Identity Guidelines (hereinafter, “Draft Guidelines”) for final review. The Draft Guidelines introduce potentially notable requirements for government contractors using artificial intelligence (AI) systems. Among the most significant draft requirements are those related to the disclosure and transparency of AI and machine learning (ML). By doing so, NIST underscores its commitment to fostering secure, trustworthy, and transparent AI, while also addressing broader implications of bias and accountability. For government contractors, the Draft Guidelines are not just a set of recommendations but a blueprint for future AI standards and regulations.Continue Reading Natural Intelligence: NIST Releases Draft Guidelines for Government Contractor Artificial Intelligence Disclosures
Harmonizing AI with EEO Requirements: OFCCP’s Blueprint for Federal Contractors
Now more than ever, federal contractors find themselves at the intersection of innovation and regulation, particularly in the realm of Artificial Intelligence (AI). AI is now incorporated into a broad range of business systems, including those with the potential to inform contractor employment decisions. For that reason, the Office of Federal Contract Compliance Programs (OFCCP) has issued new guidance entitled “Artificial Intelligence and Equal Employment Opportunity for Federal Contractors” (the “AI Guide”). OFCCP issued the AI Guide in accordance with President Biden’s Executive Order 14110 (regarding the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence”), which we reported on here. The AI Guide provides answers to commonly asked questions about the use of AI in the Equal Employment Opportunity (EEO) context. The AI Guide also offers “Promising Practices,” which highlight a number of important considerations for federal contractors. Focusing on federal contractors’ obligations and attendant risks when utilizing AI to assist in employment-related decisions, the AI Guide also provides recommendations for ensuring compliance with EEO requirements while harnessing the efficiencies of AI.Continue Reading Harmonizing AI with EEO Requirements: OFCCP’s Blueprint for Federal Contractors
OMB Releases Final Guidance Memo on the Government’s Use of AI
On March 28, 2024, the Office of Management and Budget (OMB) released Memorandum M-24-10, Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence (Memo), updating and implementing OMB’s November 2023 proposed memorandum of the same name. The Memo directs agencies “to advance AI governance and innovation while managing risks from the use of AI in the Federal Government.” In the Memo, OMB focuses on three major areas – strengthening AI governance, advancing responsible AI innovation, and managing risks from the use of AI. Continue Reading OMB Releases Final Guidance Memo on the Government’s Use of AI
The FY 2024 National Defense Authorization Act: Key Provisions Government Contractors Should Know
The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024, signed into law on December 22, 2023, 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 impose a new conflict of interest regime for government contractors with a connection to China, impose new restrictions and requirements, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2024 NDAA also includes the Federal Data Center Enhancement Act, the American Security Drone Act, and the Intelligence Authorization Act for FY 2024.Continue Reading The FY 2024 National Defense Authorization Act: Key Provisions Government Contractors Should Know
Be Careful What You Wish For: Limited Commercial Subcontract Flowdowns May Increase Administrative Burdens
The Department of Defense recently issued a long-awaited final rule prohibiting DoD prime contractors from “flowing down” FAR and DFARS clauses in subcontracts for commercial products or services, unless flowdown is specified by regulation. This rule implements language, dating from the 2017 National Defense Authorization Act, intended to reduce administrative burdens on DoD contractors and subcontractors by adding a prohibition on extraneous flowdowns at DFARS 252.244-7000 Subcontracts for Commercial Products or Commercial Services.Continue Reading Be Careful What You Wish For: Limited Commercial Subcontract Flowdowns May Increase Administrative Burdens
Biden’s Executive Order on Artificial Intelligence
On October 30, 2023, President Biden released an Executive Order (EO) on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). This landmark EO seeks to advance the safe and secure development and deployment of AI by implementing a society-wide effort across government, the private sector, academia, and civil society to harness “AI for good,” while mitigating its substantial risks.Continue Reading Biden’s Executive Order on Artificial Intelligence
Speak Now Or Forever Hold Your Protest: Intervenor’s Silence Waives Future Protest Grounds
When is the deadline to file a bid protest, and what actions or inactions can cause potential future protest arguments to be waived? These seemingly simple questions can have surprising answers. In a recent bid protest decision, GAO held that a contract awardee can waive potential protest grounds by failing to raise them when intervening
One-Two Punch: President Biden Issues Made in America Executive Order Mere Days After FAR Council Issues Final Rule Tightening Federal “Buy American” Requirements
Contractors barely had time to digest the prior administration’s changes designed to tighten the Buy American Act restrictions when, on January 25, 2021, President Biden issued Executive Order 14005 on “Ensuring Future of America is Made in America by all of America’s Workers” directing further tightening and perhaps even a new approach to determining what