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Photo of Adelicia R. CliffePhoto of Evan D. WolffPhoto of M.Yuan ZhouPhoto of Michael G. Gruden, CIPP/GPhoto of Alexandra Barbee-GarrettPhoto of Jacob Harrison

On June 2, 2023, the FAR Council issued an Interim Rule with immediate effect that prohibits the presence or use of the TikTok app on “information technology” (IT) equipment used by government contractors and contractor personnel in the performance of a contract. The interim rule mirrors the Office of Management and Budget’s guidance, which directed federal agencies to remove TikTok and successor apps made by Chinese company ByteDance Limited from federal devices (to implement the No TikTok on Government Devices Act). Continue Reading Save the Last (Byte) Dance: New Interim Rule Bars TikTok and Successor ByteDance Apps

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On March 22, 2023, the Department of Defense (DoD) issued a proposed rule that would amend the Defense Federal Acquisition Regulation Supplement (DFARS) to require certain contractors to provide export authorizations to the Defense Authorization Management Agency (DCMA).

DCMA performs quality assurance reviews for manufacturing operations to ensure contractors have the appropriate systems in place to meet quality and functionality standards along with contractual requirements regarding testing and validation.  In some cases, DCMA will engage a foreign auditor to perform the quality assurance review.  However, to do so DCMA needs insight into applicable export authorizations to see if engaging the foreign auditor is permissible.      

The proposed rule would require contractors to provide export authorizations to DCMA when the contract requires (i) government quality assurance surveillance oversight and (ii) performance in or delivery to a government quality assurance country (Australia, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Israel, Italy, Republic of Korea, Netherlands, Norway, Poland, Romania, Slovakia, Spain, Sweden, Turkey, and the United Kingdom).  Export authorizations include export licenses, exemptions, exceptions, and other approvals.  The contractor must also provide the contact information for an empowered official or export point of contact.   Continue Reading Proposed Rule Requires Certain Contractors to Provide Export Authorizations to DCMA

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On December 30, 2022, New York Governor signed into law Labor Law Section 240-i, establishing a registration system for contractors and subcontractors engaged in public work and covered private projects in New York. This law will require contractors to register with the New York State Department of Labor (the “Department of Labor”) every two years, by submitting various disclosures about their businesses, in order to ensure that contractors do not have previous labor law violations, and will abide by New York labor laws and regulations, including prevailing wage requirements. The Department of Labor will establish and maintain a public on-line system where registrations and disclosures are available. Continue Reading New Registration Requirement for Contractors and Subcontractors Performing Public Works and Covered Private Projects in New York

Photo of Alexandra Barbee-GarrettPhoto of Adelicia R. CliffePhoto of Stephanie CrawfordPhoto of Jana del-CerroPhoto of Christopher D. GarciaPhoto of Rina GashawPhoto of Lyndsay GortonPhoto of Michael G. Gruden, CIPP/GPhoto of Jacob HarrisonPhoto of Olivia LynchPhoto of John E. McCarthy Jr.Photo of Rachel SchumacherPhoto of Zachary SchroederPhoto of Rob SneckenbergPhoto of Anuj VohraPhoto of Per MidboePhoto of Alexis WardPhoto of Darianne Young

The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023, signed into law on December 23, 2022, 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 provide new opportunities for contractors to recover inflation-related costs, authorize new programs for small businesses, impose new clauses or reporting requirements on government contractors, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2023 NDAA also includes the Advancing American AI Act, the Intelligence Authorization Act for FY 2023, and the Water Resources Development Act of 2022, all of which include provisions relevant for government contractors. Continue Reading FY 2023 National Defense Authorization Act: Key Provisions Government Contractors Should Know

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On December 23, 2022, the Department of Defense (“DoD”), General Services Administration (“GSA”), and National Aeronautics and Space Administration (“NASA”) extended the comment period on the proposed rule, “Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk,” from January 13, 2023 to February 13, 2023.  As we summarized previously, the proposed rule would, if…

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The Boeing Company (Boeing) and the U.S. Air Force have settled their long-standing data rights marking dispute two years after the U.S. Court of Appeals for the Federal Circuit held that contractors may include restrictive markings on unlimited rights technical data as long as those markings do not restrict the Government’s rights.  A copy of the settlement agreement is attached to the Armed Services Board of Contract Appeals’ order of dismissal.

Under the settlement agreement, the Air Force agreed to accept noncommercial unlimited rights technical data with the following legend, which puts third parties on notice of Boeing’s “continuing ownership of such deliverables”:

Although the settlement is limited to this particular dispute, the Air Force’s acceptance of the legend to preserve the company’s rights vis-à-vis unauthorized third parties without compromising the Government’s unlimited rights suggests that a carefully drafted legend like the one included in the settlement agreement may be an acceptable marking for other contractors with similar concerns under their contracts with the Air Force (and even other agencies).  The key is to ensure that the marking does not impermissibly restrict the Government’s rights in the data, as further illustrated by the ASBCA’s November 29, 2022 decision in FlightSafety International, ASBCA No. 62659.  Continue Reading Contractors May Mark Unlimited Rights Technical Data So Long as the Government’s Rights Are Not Impermissibly Restricted: A Study in Contrasts

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On November 1, 2022, the Armed Services Board of Contract Appeals (ASBCA) published its FY 2022 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 Agency…

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This special edition of the Fastest 5 Minutes podcast covers new rules issued last week by the Department of Defense that implement various requirements of recent National Defense Authorization Acts, including a new rule that imposes additional requirements for contractors to provide cost or pricing data to the government, and is hosted by Peter Eyre…

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On October 28, 2022, the Department of Defense (DoD) amended the Defense Federal Acquisition Regulation Supplement (DFARS) by issuing two final rules related to contract cost and pricing.  Specifically:

  • Requiring Data Other Than Certified Cost or Pricing Data – DoD issued a final rule to implement a section of the Fiscal Year (FY) 2020 National
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The Safer Federal Workforce Task Force issued updated guidance for federal contractors on October 14, 2022, announcing that it will reevaluate enforcement of the federal contractor vaccine mandate and safety requirements issued under Executive Order 14042.  This is the first pronouncement from the Task Force after it had indicated that it would not enforce the…