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On January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 became law after both houses of Congress overrode President Trump’s December 23, 2020 veto of H.R. 6395.  This Act contains numerous provisions that will impose new requirements, expectations, or opportunities for government contractors.  Crowell & Moring’s Government Contracts Group analyzes key provisions

On December 21, 2020, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that contractors may include restrictive markings on unlimited rights technical data as long as those markings do not restrict the Government’s rights to that technical data.

The Boeing Company (Boeing) entered into two contracts with the United States Air

Yesterday, the Office of the Under Secretary of Defense for Intelligence & Security, Department of Defense (DoD) published a final rule codifying the National Industrial Security Program Operation Manual (NISPOM) (DoDM 5220.22) into 32 C.F.R. Part 117. For the most part, this action simply inserts the long-applicable NISPOM requirements into the CFR, but DoD has

On December 3, 2020, the President issued Executive Order 13960, Promoting the Use of Trustworthy Artificial Intelligence in the Federal Government. The Executive Order signals yet again the Federal Government’s emphasis on the use of AI and the importance of ensuring that AI is used in a manner that does not violate Americans’ privacy,

On May 13, 2020, the Federal Emergency Management Agency (FEMA) will publish an interim final rule establishing the Emergency Management Priorities and Allocation System (EMPAS) pursuant to Title I of the Defense Production Act (DPA). As drafted, EMPAS will apply beyond the current COVID-19 context and will become part of the Federal Priority and Allocations

On March 23, 2020, the President signed an “Executive Order on Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19” delegating additional authorities under the Defense Production Act of 1950 (“DPA”), which builds on Executive Order (EO) No. 13909, issued March 18, 2020, which we discussed here.

On March 18, 2020, President Trump significantly expanded the authority delegated to the Secretary of Health and Human Services (HHS) in his “Executive Order on Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of Covid-19.” The Order is based on a finding that, “to ensure that our healthcare system

On June 27, 2018, in Appeal of CiyaSoft Corporation, the Armed Services Board of Contract Appeals held that the Government can be bound by terms of a commercial software license agreement that the contracting officer (CO) has neither negotiated nor seen.  CiyaSoft Corporation (CiyaSoft) submitted a claim asserting that the Army had breached its contract to purchase computer software by using more copies of the software than were permitted by the contract.  The Army denied the claim, in part, because the contract contained no terms specifying how the government would secure and protect the software.  Instead, CiyaSoft had included license terms limiting the software’s use (i) inside the box containing the CDs with the software, (ii) on a piece of paper inside the software’s shrinkwrap, and (iii) in clickwrap that was displayed during the software’s installation process.  On appeal, the Board found that although the contract included no license terms and the CO never saw or discussed with CiyaSoft the license terms that accompanied the software delivery, the CO had a duty to inquire about what use rights applied to the software and the failure to do so imputed knowledge of the licensing terms on the Army.  Pointing to the longstanding policy embodied in the FAR that that the government should accept commercial computer license terms that are customarily provided to other purchasers, the Board held that “the government can be bound by the terms of a commercial software license it has neither negotiated nor seen prior to the receipt of the software, so long as the terms are consistent with those customarily provided by the vendor to other purchasers and do not otherwise violate federal law.”
Continue Reading Commercial License Terms May Govern Even Without Contracting Officer Knowledge

On Thursday, December 11 at 1 PM Eastern, join our Crowell & Moring attorneys for a webinar entitled: “Intellectual Property Rules in Government Contracts Legal Update: Know Your Technical Data and Patent Rights.” During this 90-minute webinar, we will provide an overview of the key principles governing the rules and regulations relating to rights in

Last month, the Federal Circuit decided a case over 70 years in the making.  Following the bombing of Pearl Harbor in 1941 and full-scale U.S. entrance into World War II, the government entered into a series of contracts with oil companies to ramp up production of aviation gasoline (“avgas”) desperately needed for the war effort.  But along with increased production came increased waste and toxic byproducts, notably spent alkylation acid and “acid sludge.”  Safe waste disposal could not keep up with production, and much of the waste was eventually dumped at a site in Fullerton, California. 

Until last week, the oil companies were on the hook for the cleanup costs.  Thanks to the Federal Circuit’s recent ruling, though, the government must now reimburse the contractors for their remediation costs.  The discussion below traces the course of the litigation, outlines the Federal Circuit’s legal analysis, and discusses how the decision represents but one potential avenue for U.S. government contractors to recover environmental remediation costs.
Continue Reading Federal Circuit Requires Government to Indemnify Contractors for CERCLA Remediation Costs Based on “Taxes” Provision in WWII Contracts