This week’s episode covers resolution of False Claims Act allegations relating to alleged payments in violation of the Anti-Kickback Act, cessation of certain emergency contracting measures deployed early in the COVID-19 pandemic, and DoD Instruction 8310.01 relating to DoD IT, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes”
On April 18, 2023, the Department of Defense (“DoD”) issued guidance to DoD contracting officers directing the cessation of certain emergency contracting measures utilized during the COVID-19 pandemic. Following the termination of the COVID-19 national emergency declaration through President Biden’s April 10, 2023 signing of H.J. Res. 7, DoD released a memorandum titled “
In Triple Canopy, Inc., ASBCA Nos. 61415, et al. (March 23, 2023), the Armed Services Board of Contract Appeals (ASBCA) resolved a long-running dispute in favor of the contractor over reimbursement of fees imposed by the Afghan government on large security firms operating in the country. The ASBCA found the fees were akin to after-imposed taxes, reimbursable by the U.S. government, and not penalties for illegal conduct.
Triple Canopy had six fixed-price contracts with the U.S. Department of Defense (DoD) to provide private security services to military bases in Afghanistan. These contracts, awarded between March 2009 and September 2010, required Triple Canopy to comply with local laws. The contracts also included FAR 52.229-6, Taxes-Foreign Fixed Price Contracts, which states that the contract price shall be increased by the amount of any after-imposed tax the contractor is required to pay. In March 2011, the Afghan government issued a directive limiting the number of employees of any private security company to 500, imposing a fee for each employee over the cap. Triple Canopy was assessed a fee in March 2011, with the right to appeal, and that same month, the DoD issued a memo to the Afghan government requesting that Triple Canopy be exempted from the 500-employee limit. Triple Canopy appealed the assessment, which the Afghan government reduced, and Triple Canopy paid the reduced amount in July 2011. Triple Canopy submitted claims to the Contracting Officer (CO) for reimbursement of the fees, and then appealed to the ASBCA on the basis of the CO’s deemed denials. The ASBCA initially found Triple Canopy’s claims were barred by the Contract Dispute Act’s six-year statute of limitations and denied the appeals, which the Federal Circuit reversed and remanded in Triple Canopy, Inc. v. Sec’y of Air Force, 14 F.4th 1332 (Fed. Cir. 2021).
Continue Reading Third Time’s A Charm: Government Must Reimburse Triple Canopy for Afghan Taxes
On March 22, 2023, the Department of Defense (DoD) issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to allow a procuring contracting officer (PCO) to delegate the authority to the contract administration office (CAO) to negotiate and settle direct costs questioned in an indirect cost rate proposal audit. After the delegation
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
On March 22, 2022, the Department of Defense (DoD) issued a final rule requiring contracting officers to consider supplier risk assessments in DoD’s Supplier Performance Risk System (SPRS) when evaluating offers. SPRS is a DoD enterprise system that collects contractor quality and delivery performance data from a variety of systems to develop three risk assessments:
On December 19, 2022, DoD issued a DFARS proposed rule that seeks to (1) implement the data-rights portions of the May 2, 2019 Small Business Innovation Research Program and Small Business Technology Transfer Program Policy Directive (SBIR/STTR Policy Directive), and (2) impose significant changes to technical data and computer software marking requirements. The SBIR/STTR portion of the proposed rule follows DoD’s advance notice of proposed rulemaking issued on August 31, 2020 (see 85 FR 53758) and incorporates the eight written public comments that DoD received. The proposed changes to marking requirements go beyond the SBIR/STTR Policy Directive and respond to the Federal Circuit’s decision in The Boeing Co. v. Secretary of the Air Force, 983 F.3d 1321 (Fed. Cir. 2020).
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
This week’s episode covers the Procurement Collusion Strike Force’s new partnerships and focus areas, DOD OIG’s annual report identifying the DoD’s most serious management and performance challenges, and DOD’s Zero Trust Strategy that provides a roadmap for achieving the DoD’s target cyber defense goals by the end of fiscal year 2027, and is hosted by
On December 1, 2022, Department of Defense (DoD) Secretary Lloyd J. Austin III announced the establishment of the DoD Office of Strategic Capital (OSC). The mission statement of the OSC is to build an “enduring technical advantage” for the United States by helping partner contractors with private investment to develop national security critical technologies, including those related to advanced materials, next-generation biotechnology, and quantum science. OSC will coordinate with existing organizations such as the Defense Advanced Research Projects Agency (DARPA) and the Defense Innovation Unit (DIU), which promotes acceleration of the military use of commercial technologies.
The OSC intends to offer what it characterizes as “patient” extended-term capital to help contractors obtain financing between the early laboratory-testing and prototyping phases and the full-scale development of products that can be used by the DoD warfighter. In addition to traditional vehicles like contracts and grants, this investment will likely take the form of loans and loan guarantees.