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Michelle D. Coleman is a counsel in the Government Contracts Group in Crowell & Moring’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and requests for equitable adjustments, fiscal law questions, prime-sub disputes, and bid protests.

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

On March 28, 2024, the Office of Management and Budget (OMB) released Memorandum M-24-10Advancing 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

On remand from the U.S. Court of Appeals for the Federal Circuit, in ECC International Constructors, LLC, ASBCA Nos. 59586, 59643, the Armed Services Board of Contract Appeals concluded that, by waiting until after a hearing on the merits and six years after the appeal was filed, the government forfeited its right to challenge the contractor’s satisfaction of the FAR’s sum-certain requirement for Contract Disputes Act claims.Continue Reading Wait Too Long and You Might Miss Sum-Thing: ASBCA Again Underscores that Failure to Timely Raise Sum-Certain Defense Can Result in Forfeiture Under New Federal Circuit Precedent

In Aviation Training Consulting, LLC, ASBCA No. 63634 (Jan. 11, 2024), the Armed Services Board of Contract Appeals (ASBCA) confirmed that a contractor’s properly asserted claim for relief under Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act is a claim under the Contract Disputes Act (CDA) and denied the Air Force’s motion to dismiss for lack of jurisdiction.Continue Reading Who CARES? The ASBCA Might.

On December 19, 2023, the United States District Court for the District of Utah denied summary judgment in part to Vanderlande Industries (Vanderlande), holding that a reasonable jury could find that Vanderlande negligently misrepresented the viability of subcontractor Ludvik Electric Co.’s (Ludvik) pass-through claims during the parties’ settlement negotiations over the claims. Continue Reading Contractor Discovers the High Cost of Misrepresenting a Material Fact: Summary Judgment Denied in Part 

On December 20, 2023, the Armed Services Board of Contract Appeals (Board) denied the government’s motion to dismiss a prime contractor’s pandemic-related claims filed on behalf of its subcontractors.  The Board rejected the government’s arguments that the claims failed to state any claims for relief that could be granted, were barred by the affirmative defense of sovereign acts, and failed to provide separate sums certain for purported sub-claims.   Continue Reading ASBCA Allows Subcontractors’ Pandemic-Related Claims to Move Forward

The Civilian Board of Contract Appeals (CBCA) recently published its Annual Report for FY 2023, providing statistics regarding the adjudication of appeals between contractors and civilian agencies such as the Department of State, the Department of Veterans Affairs, the General Services Administration, the Department of Transportation, the Department of Agriculture, the Department of the Interior

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

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

On November 1, 2023, the Armed Services Board of Contract Appeals (ASBCA) published its FY 2023 Report of Transactions and Proceedings, which provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, Central Intelligence Agency, National Aeronautics and Space Administration, Defense Logistics Agency, Defense Contract Management