National Defense Authorization Act

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Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without, with the latest edition hosted by partners David Robbins and Peter Eyre and including updates on the National Defense Authorization Act for

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Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without. This latest edition is hosted by partners David Robbins and Peter Eyre and includes updates on a FAR proposed rule, the National

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On February 17, the Federal Register published a proposed rule that would amend the FAR to implement section 857 of the National Defense Authorization Act, making unallowable any “costs incurred by a contractor in connection with a Congressional investigation or inquiry into an issue that is the subject of a proceeding resulting in a disposition

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The Department of Defense (DoD) Office of Inspector General (IG) recently released a July 6, 2015 Memorandum announcing that it will “immediately” begin the field work for its assessment of DoD compliance with Section 847 of the 2008 National Defense Authorization Act (NDAA), “Requirements for Senior Defense Officials Seeking Employment with Defense Contractors.” Section 847

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On May 16, 2013, the Department of Defense (“DoD”) published long awaited proposed regulations regarding efforts contractors must take to prevent the entry of counterfeit electronics into the DoD supply chain. As previously discussed on this blog, Section 818 of the National Defense Authorization Act for FY2012 required DoD to revise its acquisition regulations

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At 2:00 p.m. EST on February 27, 2013, Crowell & Moring Attorneys Peter Eyre, Andy Liu, Rebecca Springer, and Jason Lynch will conduct a webinar on the implications of the FY2013 NDAA’s new whistleblower protections for government contractors. The webinar will offer analysis of the expanded protections, define and discuss “retaliation” as defined under the

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On May 21, the Senate Committee on Armed Services published a troubling report on the results of its year-long inquiry into counterfeit electronic parts in the DoD supply chain. The report found approximately 1,800 cases of suspect counterfeit electronic parts in the defense supply chain during 2009 and 2010 involving over one million individual parts. Over 70 percent of the parts were traced back to China. It concluded there was overwhelming evidence of large numbers of counterfeit parts making their way into critical defense systems, failures by defense contractors and DoD to report counterfeit parts, and gaps in DoD’s knowledge of the scope and impact of such parts on defense systems.

The report praised the amendment offered by Senators Levin and McCain, Section 818 of the 2012 National Defense Authorization Act, seeks to stop the importation of counterfeit parts, strengthen the defense supply chain, and promote the adoption of aggressive counterfeit avoidance practices by DoD and the defense industry. The regulations currently being developed by DoD in response to that legislation, which was signed into law on December 31, 2011, will have significant impact on DoD contractors.

Section 818 requires DoD to assess its policies and systems for the detection of counterfeit electronic parts, implement a risk-based approach to minimize the impact of counterfeit or suspect counterfeit parts on DoD (a similar requirement applies to the Department of Homeland Security), and promulgate regulations that: (1) place on contractors the responsibility for “detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit electronic parts in such protects and for any rework or correction action that may be required to remedy the use or inclusion of such parts”; (2) renders unallowable costs of rework or corrective action necessary to remedy the use or inclusion of counterfeit parts under DoD contracts (this may be amended by the 2013 NDAA); and (3) require, wherever possible, that DoD contractors and subcontractors obtain electronic parts from the original manufacturers, authorized dealers, or “trusted suppliers.” DoD is also required to issue or revise guidance on remedial actions to be taken against suppliers who repeatedly fail to detect and avoid counterfeit electronic parts, including consideration of whether to suspend or debar them.


Continue Reading The Fight Against Counterfeit Electronic Parts – Increasing Burdens on DoD Contractors

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CORRECTION (5/15/12): A prior version of this blog post first posted on May 11, 2012, analyzed the proposed amendment to the Tucker Act discussed herein under the mistaken impression that it had been part of the committee mark version of the 2013 National Defense Authorization Act. We have since learned that the proposed amendment to the Tucker Act was not included in the bill that went to committee vote. The below analysis has been altered to examine the proposed legislation in the proper context. We apologize for the error.

On April 25, 2012, the Department of Defense submitted proposed legislation to the House Armed Services Committee for consideration in the 2013 National Defense Authorization Act (NDAA) that would dramatically amend the Tucker Act, 28 U.S.C. § 1491(b), by importing essentially all of the GAO’s rigid timeliness rules with regard to bid protest actions and applying them to protests filed before the U.S. Court of Federal Claims (COFC). Amongst the GAO timeliness rules currently contained in 4 C.F.R. § 21 that DoD proposed to be added to the Tucker Act and apply to the COFC include: 

  • The absolute rule that pre-award solicitation challenges must be filed before the submission date for proposals; 
  • The rule that any post-award protest must be filed within 10 days of when an offeror knows or should have known of the basis for protest, unless subject to a mandatory debriefing, in which case the protest must be filed within 10 days of that debriefing, and;
  • In the event that an agency protest has been filed, the rule that a COFC protest must be filed within 10 days of when the offeror knew or should have known of the adverse decision in the agency protest. 


Continue Reading Proposed Revisions to the Tucker Act Would Dramatically Change the Bid Protest Landscape

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On January 7, 2011, President Obama signed the National Defense Authorization Act for Fiscal Year 2011, which, among other things, extends the Government Accountability Office’s (“GAO”) protest jurisdiction over certain Department of Defense (“DoD”) task and delivery orders through September 30, 2016.  However, absent congressional action, GAO’s jurisdiction over protests of task and delivery orders