On September 26, 2024, the Department of Defense (DoD) issued a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS), implementing requirements for contractors to submit cost and pricing data under Section 811(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018, Section 814 of the NDAA for FY 2021, and Section 804 of the NDAA for FY 2022, which updated the Truthful Cost or Pricing Data statute (formerly Truth in Negotiations Act (TINA) and still referred to as TINA). Continue Reading DoD Proposes To Amend the DFARS to Update TINA Requirements
Putting the “AI” in Compliance—DOJ Updates its Corporate Compliance Program Guidance to Address Emerging AI Risks and Leveraging Data
On Monday, September 23, 2024, the Department of Justice (DOJ), released an update to its Evaluation of Corporate Compliance Programs (ECCP) guidance. The ECCP guidance was last revised in March 2023, which brought a number of significant changes, including a focus on compensation and incentive structures (e.g., clawbacks), and third party messaging applications. This 2024 update, while not as significant in scope as its predecessor, nonetheless highlights the DOJ’s focus on new and emerging technologies, such as artificial intelligence (AI), as part of its evolving assessment of what makes a corporate compliance program truly effective, and how prosecutors should evaluate risk assessments and other management tools at the time of a corporate resolution.Continue Reading Putting the “AI” in Compliance—DOJ Updates its Corporate Compliance Program Guidance to Address Emerging AI Risks and Leveraging Data
OMB Final Rule Rewrites the Uniform Guidance for Grants, Cooperative Agreements, and Other Federal Financial Assistance
On April 22, 2024, the Office of Management and Budget (OMB) issued a Final Rule significantly revising the Uniform Guidance for grants, cooperative agreements, and other federal financial assistance. The Final Rule (titled “OMB Guidance for Federal Financial Assistance”), and OMB’s accompanying memorandum to agencies and reference guide, state that the revisions aim to streamline and clarify the grant rules and improve management, transparency, and oversight of federal financial assistance. Agencies must implement the Final Rule by October 1, 2024; however, agencies may apply it to federal awards as early as June 21, 2024.Continue Reading OMB Final Rule Rewrites the Uniform Guidance for Grants, Cooperative Agreements, and Other Federal Financial Assistance
Recent Developments from the Federal Government Relating to AI
AI remains a critical focus of both the federal government and industry, with multiple efforts in recent weeks to address governance of the development and use of AI in the United States. On February 26, 2024, a U.S. Department of State-commissioned report, titled “Defense in Depth: An Action Plan to Increase the Safety and Security of Advanced AI” (Action Plan), proposed multiple U.S. Government and partner nation lines of effort to address growing national security risks posed by rapidly expanding AI capabilities, including the expectation of achieving artificial general intelligence (AGI). Just days later, on March 5, 2024, House Chairman Comer and Ranking Member Raskin introduced the Federal AI Governance and Transparency Act. This bipartisan bill would focus government resources on increasing transparency, oversight, and responsible use of federal AI systems and centrally codifying federal governance of agency AI systems. Additionally, on March 28, 2024 the Office of Management and Budget released the final guidance on Memorandum M-24-10, Advancing Governance, Innovation, and Risk Management for Agency Use of AI as we address here.Continue Reading Recent Developments from the Federal Government Relating to AI
DoD Releases Additional Guidance on the Department’s Artificial Intelligence Strategy
On November 2, 2023, the Department of Defense (DoD) released its 2023 DoD Data, Analytics, and Artificial Intelligence Adoption Strategy (2023 Strategy), and an accompanying Fact Sheet, to accelerate the adoption of analytics, data, and artificial intelligence (AI) technologies that will enable better and faster decision-making at all levels and across the DoD. The 2023 Strategy builds upon and supersedes the DoD’s first AI Strategy published in 2019, reported on here, and the revised Data Strategy published in 2020 to continue the DoD’s digital transformation, unifying previous guidance and enabling stronger alignment and synchronization to scale advanced capabilities for use across the DoD. Continue Reading DoD Releases Additional Guidance on the Department’s Artificial Intelligence Strategy
Congress Discusses How To Govern The Acquisition of AI
On September 14, 2023, the Senate Committee on Homeland Security & Governmental Affairs hosted a hearing called “Governing AI Through Acquisition and Procurement” (Hearing). Senator Gary Peters (D-MI) opened the Hearing, explaining that the purpose was to explore how the U.S. government would purchase AI technologies and establish guidelines and standards for the development and use of those technologies. Sen. Peters noted that over half of AI tools used by the federal government are purchased from commercial vendors and that the U.S. government should be careful in its procurement and use of these tools.
The hearing covered a wide range of topics, including: (i) how the U.S. government can establish standards for AI data to better serve the needs of AI vendors/contractors when procuring AI technology; (ii) potential changes to procurement training; (iii) how the acquisition process can be changed to adapt to the unique demands of AI procurement; (iv) how the procurement process can be used to influence the development of AI technologies; and (v) other topics including potential censorship, AI bias, and government overreach as discussed below.Continue Reading Congress Discusses How To Govern The Acquisition of AI
Watchdog Says: DoD Needs Department-Wide AI Acquisition Guidance
On June 29, 2023, the Government Accountability Office (GAO) released its second report[1] on Department of Defense (DoD) artificial intelligence (AI) acquisition efforts. This latest report examines the DoD’s lack of formal AI acquisition guidance and identifies key principles from the private sector that can be applied to the DoD’s AI acquisition efforts.
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President Biden Signs Bipartisan Legislation Requiring Agencies to Refer Potential Human Trafficking Matters for Suspension/Debarment Consideration
On October 17, 2022, President Biden signed the End Human Trafficking in Government Contracts Act of 2022 (“the Act”) into law, amending the 2013 National Defense Authorization Act (“2013 NDAA”) to require U.S. government agency heads to refer any suspected instances of human trafficking to the agency’s suspension and debarment official (“SDO”) for consideration and
A Deeper Dive into the State Actions Targeting Russia that May Impact Government Contractors
As Congress considers legislation prohibiting government contractors from doing business in Russia, over 20 states have already acted. In this alert, we highlight: (i) how different states are defining Russian business operations, and the corresponding risks to differently situated government contractors; and (ii) unique aspects of certain state actions that contractors need to be aware
Updates to Federal Bill Targeting Government Contractors Operating in Russia
As we covered in a prior alert, the recently introduced Federal Contracting for Peace and Security Act (H.R. 7185) could have a profound impact on government contractors. The Act would require termination of existing contracts and prohibit awards, extensions, and renewals of prime contracts and subcontracts with companies doing business in the