On May 12, 2025, the Defense Counterintelligence and Security Agency (DCSA) released a new SF-328[1] consisting of 9 questions and 6 pages of instructions that detail the types of supporting documentation requested and identify information required by different responding entities (e.g., corporate, non-profit, academic, etc.). With this SF-328, DCSA is seeking certain frequently requested information and documents with initial SF-328 submissions rather than obtaining these documents through communications or revised SF-328 submissions. Additionally, when completed, the new SF-328 is considered Controlled Unclassified Information (CUI).Continue Reading New SF-328 Released and Embedded Guidance Seeks More Information Up Front
DoD Releases IP Guidebook
On May 1, 2025, the Department of Defense announced the release of the long-anticipated 81-page Intellectual Property Guidebook for DoD Acquisition, which is aimed primarily at assisting acquisition professionals to develop, execute, and manage IP strategies that support functional area requirements and objectives across program life cycles. The Guidebook also provides guidance on the
Fastest 5 Minutes: Executive Order – “Modernizing Defense Acquisitions and Spurring Innovation in the Defense Industrial Base”
This week’s episode features a deep-dive on Executive Order 14265, Modernizing Defense Acquisitions and Spurring Innovation in the Defense Industrial Base, which calls for a “comprehensive overhaul” of the DoD acquisition system to deliver state‐of‐the‐art capabilities at speed and scale. This episode is hosted by Yuan Zhou, Jon Baker, and Eric Ransom. Crowell & Moring’s
Agencies to Curtail Unique, Customized Acquisitions in Favor of Commercial Products and Services
On April 16, 2025, the White House issued an Executive Order (“EO”), “Ensuring Commercial, Cost-Effective Solutions in Federal Contracts,” requiring agencies to meet their needs with commercially available products and services to the maximum extent practicable. The EO reiterates and builds upon the requirements set forth in the Federal Acquisition Streamlining Act of 1994 (“FASA”), which similarly encourages the use of commercial acquisition procedures. Specifically, the EO institutes a required review procedure for certain open acquisition actions and establishes an oversight procedure to be implemented for all acquisitions hereafter.Continue Reading Agencies to Curtail Unique, Customized Acquisitions in Favor of Commercial Products and Services
Final DOD Rule Codifies 20-Year SBIR Data Protection Period and Other SBIR Program Protections While Punting Potential Changes To Marking Requirements
On December 17, 2024, the Department of Defense (DOD) published a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the data rights portions of the Small Business Innovation Research Program (SBIR) and Small Business Technology Transfer (STTR) Program Policy Directive, which itself was most recently amended in May 2023. The changes from this final rule will be effective as of January 17, 2025. Continue Reading Final DOD Rule Codifies 20-Year SBIR Data Protection Period and Other SBIR Program Protections While Punting Potential Changes To Marking Requirements
Federal Circuit Affirms COFC Decision Limiting Infringement Damages to Copies of Software Actually Used Rather Than Made
In Bitmanagement Software GMBH v. United States, Case No. 23-1506 (Fed. Cir. Jan. 7, 2025), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) denied the appeal of Bitmanagement Software Gmbh (Bitmanagement) challenging the Court of Federal Claims’ (COFC) $154,400 damages award, and denying its demand for $85 million in damages resulting from the Navy’s infringement of Bitmanagement’s software copyright. The Federal Circuit affirmed the COFC’s (1) use of a hypothetical negotiation approach to compute damages; and (2) decision to award damages using a “per use” rather than a “per copy” approach.Continue Reading Federal Circuit Affirms COFC Decision Limiting Infringement Damages to Copies of Software Actually Used Rather Than Made
Commerciality Guidance for Major Weapon System Procurements
On May 30, 2024, the Department of Defense (DoD) issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 803 of the 2023 National Defense Authorization Act, which modified 10 U.S.C. § 3455 to provide additional guidance regarding data requirements needed to support determinations of commerciality and price reasonableness under procurements for major weapon systems. The rule applies to products that (i) have not previously been deemed commercial by the DoD; and (ii) are proposed as either a subsystem of a major weapon system or as a component or spare part of a major weapon system or subsystem. Continue Reading Commerciality Guidance for Major Weapon System Procurements
Why Should They Have All the Fun? DoD Instruction Expands DCSA’s FOCI Reach Beyond Cleared Contractors
On May 13, 2024, the Department of Defense (DoD) issued an instruction implementing policies and procedures that DoD will use to identify contractors (including uncleared contractors) requiring foreign ownership, control, and influence (FOCI) determinations, review related information, and address FOCI concerns. These policies and procedures were put in place pursuant to Section 847 of the 2020 National Defense Authorization Act[1] (Section 847). These FOCI requirements will, for the first time, subject many uncleared DoD contractors to rigorous disclosure requirements, scrutiny, and potential mitigation by the Defense Counterintelligence and Security Agency (DCSA). Continue Reading Why Should They Have All the Fun? DoD Instruction Expands DCSA’s FOCI Reach Beyond Cleared Contractors
Contractor’s Copyright Infringement Claims Raise Issues That “Must be Addressed at Trial”
On May 3, 2024, in Geospatial Technology Associates, LLC v. United States, COFC No. 16-346C, the U.S. Court of Federal Claims denied the government’s motion to dismiss for lack of jurisdiction and, alternatively, for summary judgment due to alleged inaccuracies in a copyright registration, holding that plaintiff Geospatial Technology Associates, LLC’s (“plaintiff” or “GTA”) patent and copyright infringement claims pursuant to 28 U.S.C. § 1498 raise issues that “must be addressed at trial.” This newest development follows GTA’s original March 2016 lawsuit against several government agencies—including the Department of the Army, the Department of the Air Force, and the National Geospatial-Intelligence Agency (“NGA”)—alleging patent and copyright infringement of the underlying software code of its product, “NINJA.pro.” Continue Reading Contractor’s Copyright Infringement Claims Raise Issues That “Must be Addressed at Trial”
Just Trust Me on This: Allegation of Contract’s Existence Is Sufficient to Establish Jurisdiction Under Contract Disputes Act
The U.S. Court of Appeals for the Federal Circuit held in Avue Technologies Corp. v. Department of Health and Human Services that an appellant’s non-frivolous allegation of a contract with the government via an end-user license agreement (EULA) incorporated into another contractor’s Federal Supply Schedule (FSS) agreement was sufficient to establish jurisdiction under the Contract Disputes Act (CDA).Continue Reading Just Trust Me on This: Allegation of Contract’s Existence Is Sufficient to Establish Jurisdiction Under Contract Disputes Act