The Department of Defense (DoD) recently announced that it seeks public comments on a proposed change to the contractor business systems regime. The proposed rule would amend the Defense Federal Acquisition Regulation Supplement (DFARS) by replacing the phrase “significant deficiency” with the new defined term “material weakness,” to mean “a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis.” In addition, the term would provide that a “reasonable possibility exists when the likelihood of an event occurring is— (1) Probable; or (2) More than remote but less than likely.” Continue Reading Taking Care of Business (Systems): DoD Proposes to Change the Definition of a Business System Deficiency
At Long Last: CAS Board Seeks Input Regarding CAS Coverage of Indefinite Value Contract Vehicles
The Cost Accounting Standards Board (CASB) recently announced that it seeks public comments on “whether and how” to amend the rules to clarify whether the CAS apply to indefinite value contract vehicles (or IDVs, otherwise known as indefinite-delivery / indefinite-quantity, or IDIQ, contracts). Comments are due no later than August 19, 2024. The full text of the notice is available here. The CASB also published a paper discussing six possible approaches and the criteria it will use to evaluate those approaches, but welcomed the public to identify alternatives for the CASB to consider. Continue Reading At Long Last: CAS Board Seeks Input Regarding CAS Coverage of Indefinite Value Contract Vehicles
Contractor’s Copyright Infringement Claims Raise Issues That “Must be Addressed at Trial”
On May 3, 2024, in Geospatial Technology Associates, LLC v. United States, COFC No. 16-346C, the U.S. Court of Federal Claims denied the government’s motion to dismiss for lack of jurisdiction and, alternatively, for summary judgment due to alleged inaccuracies in a copyright registration, holding that plaintiff Geospatial Technology Associates, LLC’s (“plaintiff” or “GTA”) patent and copyright infringement claims pursuant to 28 U.S.C. § 1498 raise issues that “must be addressed at trial.” This newest development follows GTA’s original March 2016 lawsuit against several government agencies—including the Department of the Army, the Department of the Air Force, and the National Geospatial-Intelligence Agency (“NGA”)—alleging patent and copyright infringement of the underlying software code of its product, “NINJA.pro.” Continue Reading Contractor’s Copyright Infringement Claims Raise Issues That “Must be Addressed at Trial”
Government Contracts
It All Adds Up
Nicole Owren-Wiest and Erin Rankin continue their discussion of TINA. In this episode, they dive into the definition of cost or pricing data. Spoiler alert: the devil’s in the details. “It All Adds Up” is Crowell & Moring’s podcast covering the latest government contract accounting, cost, and pricing developments.
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It All Adds Up
Cards Face Up
Nicole Owren-Wiest and Erin Rankin talk TINA. What is the Truthful Cost or Pricing Data Act, formerly known as the Truth in Negotiations Act? When are contractors and subcontractors required to provide certified cost or pricing data? And what does Nicole’s Cookie Monster coffee mug have to do with it?
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It All Adds Up
What’s the Point?
To set the groundwork for future episodes, Nicole Owren-Wiest and Erin Rankin talk fundamentals: What is the purpose behind the often counter-intuitive and complex government contracts cost and pricing rules? What are the various price analysis techniques available to the world’s largest buyer of goods and services? “It All Adds Up” is
It All Adds Up
Our Two Cents
In this second inaugural episode of It All Adds Up, Nicole Owren-Wiest and Erin Rankin riff on why they care so much about government contracts cost and pricing – and why you should, too. “It All Adds Up” is Crowell & Moring’s podcast covering the latest government contract accounting, cost, and pricing
Start the Clock: Government’s Indirect Cost Rate Claim Accrued upon Submission of Indirect Cost Rate Proposal
In Strategic Technology Institute, Inc. v. Sec’y of Def., 91 F.4th 1140 (Fed. Cir. 2024), the Federal Circuit affirmed a decision by the Armed Services Board of Contract Appeals (ASBCA), which held that the government’s 2018 claim was not time-barred by the Contract Dispute Act’s (CDA) six-year statute of limitations. The ASBCA found that the government’s claim did not begin to accrue until 2014, the date the government received the contractor’s indirect cost rate proposals for fiscal year (FY) 2008 and FY 2009. Continue Reading Start the Clock: Government’s Indirect Cost Rate Claim Accrued upon Submission of Indirect Cost Rate Proposal
Does Government Disclosure of a Company’s Trade Secrets Amount to an Unlawful Taking Under the Fifth Amendment?
In Vanda Pharmaceuticals, Inc. v. United States, No. 23-629C (Fed. Cl. 2024), 2024 WL 201890, the Court of Federal Claims (COFC) addressed whether government disclosure of a company’s trade secrets and commercial information could create a viable claim for a taking under the Fifth Amendment or for breach of an implied-in-fact contract. The company, Vanda Pharmaceuticals (Vanda), claimed that the government’s disclosure of its confidential trade secrets—including its trademarked drugs’ dissolution rates—to competitors seeking U.S. Food and Drug Administration (FDA) approval of generic drug alternatives was an unlawful regulatory taking that diminished the value of Vanda’s brand name drugs and infringed upon Vanda’s right to exclude generics from the market. The government moved to dismiss Vanda’s claims for lack of subject matter jurisdiction and for failure to state a claim. The COFC denied the government’s motion in part, holding as a matter of first impression that Vanda adequately stated a takings claim based on the government’s disclosures but failed to state a claim for breach of an implied-in-fact contract. The COFC also held that Vanda’s claims involving one generic drug manufacturer were outside the Tucker Act’s six-year statute of limitations and were time barred. Continue Reading Does Government Disclosure of a Company’s Trade Secrets Amount to an Unlawful Taking Under the Fifth Amendment?
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.