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William B. O’Reilly is a counsel in Crowell & Moring’s Washington, D.C. office, where he is a member of the firm’s Government Contracts Group.

Liam assists clients with all phases of government contracting, including contract formation and award controversies, performance counseling, and claims and disputes litigation. His practice includes representing clients in bid protests before the Government Accountability Office and U.S. Court of Federal Claims. Liam also regularly advises clients on supply chain risk management, addressing issues such as cybersecurity, country of origin and domestic preferences, and counterfeit part detection and avoidance, as well as conducting internal investigations and mandatory disclosures for performance breaches and potential violations of the False Claims Act (FCA).

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

On August 23, 2023, the Office of Management and Budget (OMB) released its final rule and notification of final guidance addressing implementation of the Build America, Buy America Act (BABA) provisions enacted with the Infrastructure Investment and Jobs Act (IIJA), which requires the use of domestic iron, steel, manufactured products, and construction materials in infrastructure projects supported with federal financial assistance.  The final rule goes into effect October 23, 2023, and applies to federal awards for infrastructure projects awarded after November 15, 2021.  We previously reported on OMB’s February 9, 2023 proposed guidance here.Continue Reading BABA Black Sheep, Have You Final Rules? OMB Issues Final Implementation Guidance on Build America, Buy America Requirements for Federally Funded Infrastructure Projects

In a polarized political environment, one area of bipartisan agreement in recent years has been renewed interest in leveraging government purchasing power to promote the domestic manufacturing base by expanding and strengthening federal “Buy America” requirements.  For direct federal procurements subject to the Buy American Act (BAA), this has resulted in revised rules increasing the amount of U.S. content required to qualify a product as domestic, as well as heightened scrutiny of when waivers may be issued exempting a procurement in whole or in part from those requirements (covered here and here).    Continue Reading Float Like a Butterfly (Valve), Sting Like a B(AA Requirement): GAO Issues Rare Decision Sustaining Challenge to Agency’s Application of the Buy American Act

Last week, the Federal Register published President Biden’s Executive Order on Federal Research and Development in Support of Domestic Manufacturing and United States Jobs [1] (Executive Order), which requires federal agencies [2] to emphasize domestic manufacturing in research and development agreements, contracts, and plans. Continue Reading “Made” in America redux: President Biden Proposes Leveraging Federal Research Funding to Further Promote the Domestic Manufacturing Base

On May 12, 2023, the Department of Treasury and the Internal Revenue Service (IRS) released Notice 2023-38 (Notice), stating that they intend to propose regulations to address the requirements taxpayers must satisfy when claiming domestic content bonus credit amounts provided by the Inflation Reduction Act under Internal Revenue Code (IRC) Sections 45, 45Y, 48, and

On April 26, the Federal Circuit issued a decision in Crawford v. United States (a C&M case), holding that a U.S. Army combat veteran is entitled to recover his attorneys’ fees arising from a dispute related to obtaining medical retirement benefits earned during his service.  In the underlying dispute on remand to the Army Board

As previewed in President Biden’s State of the Union Address, the Office of Management and Budget (OMB) issued a proposed rule and notification of proposed guidance on February 9, 2023 to improve uniformity and consistency in the implementation of Build America, Buy America (BABA) requirements applicable to federally funded infrastructure projects pursuant to the Infrastructure Investment and Jobs Act (IIJA).

This proposed rulemaking builds on preliminary guidance OMB issued on April 18, 2022, shortly before the BABA requirements became effective in May 2022. While the preliminary guidance focused heavily on agency waivers (both in terms of process and criteria), the proposed rule describes how the requirements related to manufactured products, iron and steel, and construction material will be interpreted. Continue Reading Buy America, by Americans—Office of Management and Budget Solicits Industry Input on Harmonizing Domestic Preference Regimes

Not to be outdone by the Department of Defense’s commitment to consider inflation relief, on September 12, 2022, the General Services Administration (“GSA”) Federal Acquisition Service published a Supplement to Acquisition Letter MV-22-02, extending and enhancing policies to provide inflation relief to GSA Schedule contractors.  As we previously explained, the original Acquisition Letter relaxed

On July 18, the GSA Office of the Inspector General (OIG) issued an Alert Memorandum both broadcasting and criticizing the Federal Acquisition Service’s (FAS) apparent decision to expand the Transactional Data Reporting (TDR) rule to the entire Multiple Award Schedule (MAS). The TDR Pilot Program studied the potential for TDR to reduce the compliance burdens of the MAS program by replacing the various requirements Federal Supply Schedule (FSS) contractors must fulfill to ensure the pricing offered to GSA customers is fair and reasonable, including the obligation to make Commercial Sales Practice disclosures and to track commercial pricing and discounts to the negotiated Basis of Award customer under the Price Reductions Clause. The GSA OIG previously criticized the TDR Pilot Program. Continue Reading TDR Wars—Episode V: OIG Strikes Back