On December 17, 2024, the Small Business Administration (SBA) published a final rule amending multiple aspects of all of the SBA’s small business size and status programs. Among other notable changes, SBA (1) introduced a new rule that changes the impact of a recertification as other than small or as other than the relevant small business status following a merger or acquisition, and (2) introduced a standardized set of permissible negative controls for minority shareholders in all types of small businesses, thereby significantly expanding the controls investors may have in service-disabled veteran-owned small businesses (SDVOSBs), women-owned small businesses (WOSBs), and participants in the SBA’s 8(a) Business Development Program. Continue Reading Brace for Impact: Final SBA Rule Changes to Recertification and Negative Controls Will Reverberate in GovCon M&A and Investment Market
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
SAM Scams: Protect Your Company
Recently, there has been a significant increase in scams targeting users of the System for Award Management (SAM.gov). Active SAM registrations are required for federal government contractors, including to receive contracts and payments. The non-public portions of these registrations include bank account information, tax information, and other sensitive information about a company. Recent phishing scams and efforts to gain access to registrations indicate sophisticated actors are attempting to manipulate SAM registrations, possibly for access to payments from the government, among other reasons. Company SAM registration Administrators should protect the company’s SAM registration from unauthorized access to the greatest extent possible.Continue Reading SAM Scams: Protect Your Company
CMMC Final Rule Includes M&A Trigger for New Assessment
As Crowell covered in a recent alert, the Department of Defense (DoD) on October 11, 2024 released a final rule (the “Final Program Rule”) formalizing the requirements, assessment processes, and related governance for its Cyber Maturity Model Certification Program (CMMC).Continue Reading CMMC Final Rule Includes M&A Trigger for New Assessment
SBA Proposed Rule Would Enact Material Changes as Well as Promote Regulatory Uniformity Across Size and Status Programs
On August 23, 2024, the Small Business Administration (SBA) posted a proposed rule to update and clarify aspects of various SBA small business programs, including but not limited to the HUBZone Program and 8(a) Business Development Program. This proposed rule followed SBA’s July 22, 2024 notification of tribal consultation meeting and request for comments (which Crowell covered here). Continue Reading SBA Proposed Rule Would Enact Material Changes as Well as Promote Regulatory Uniformity Across Size and Status Programs
SBA Seeks Comment on Prospective Policy Change Regarding Mentor-Protégé Joint Venture Eligibility For Multiple Award Contracts
On July 22, 2024, the Small Business Administration (SBA) posted a notification of tribal consultation meeting and request for comments regarding updates to the HUBZone and 8(a) Business Development Programs. Of critical importance for any contractors participating in the SBA’s Mentor-Protégé Program, SBA is also seeking comments on prospective policy changes addressing joint venture participation in SBA’s programs. SBA has identified perceptions that:Continue Reading SBA Seeks Comment on Prospective Policy Change Regarding Mentor-Protégé Joint Venture Eligibility For Multiple Award Contracts
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
The FY 2024 National Defense Authorization Act: Key Provisions Government Contractors Should Know
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
New Guidance on Joint Venture Classified Information Access Determinations
On October 5, 2023, the Information Security Oversight Office issued Joint Notice 2024-01: Joint Ventures and Entity Eligibility Determinations (Joint Notice) with the Small Business Administration (SBA) and in coordination with the Department of Defense (DoD) to provide government contractors with additional guidance concerning joint ventures (JVs) seeking access to classified information (an Entity Eligibility Determination (EED) or Facility Clearance (FCL)). Among other things, this Joint Notice clarifies that companies should not rely on the SBA’s regulations for the proposition that a small business JV will never need to hold an EED. Continue Reading New Guidance on Joint Venture Classified Information Access Determinations