In Lockheed Martin Aeronautics Company, ASBCA No. 62209 (a C&M case), the Armed Services Board of Contract Appeals (Board) awarded $131,888,860 in damages plus applicable interest in connection with Lockheed Martin’s claim for the cumulative disruptive impacts it experienced in performing over and above work on the C-5 Reliability Enhancement and Re-Engining Program. The
Civilian Board Denies Department of Energy Motion to Dismiss
In the Crowell & Moring case Parsons Government Services, Inc. v. Department of Energy, CBCA 7822, the Civilian Board of Contract Appeals (Board) denied the government’s motion to dismiss concerning Parsons’ claim for additional incentive fee in connection with its performance operating a salt waste processing facility at DOE’s Savannah River Site. The underlying
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
You Need to Calm Down: Board Swift-ly Denies Motion to Dismiss for Failure to Prosecute Filed Just Days After Party Misses Deadline
In MLU Services, Inc. v. Department of Homeland Security, CBCA No. 8002, the Civilian Board of Contract Appeals (Board) denied a Federal Emergency Management Agency (FEMA) motion to dismiss for failure to prosecute, which the agency filed just four days after MLU failed to timely submit one of its initial pleadings.
This case
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
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
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
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
Who CARES? The ASBCA Might.
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.
Contractor Discovers the High Cost of Misrepresenting a Material Fact: Summary Judgment Denied in Part
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
ASBCA Allows Subcontractors’ Pandemic-Related Claims to Move Forward
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