MSLaw Blog

Although qui tam relators filed a record 1,297 complaints in 2025, they face an uncertain future. Multiple circuit courts of appeal are evaluating whether qui tam provisions of the False Claims Act (FCA) can withstand constitutional scrutiny. Arguments before the 11th U.S. Circuit Court of Appeals illustrate the issues also pending in the 3rd and 5th circuits on a legal practice William Shakespeare experienced personally.   Overview of the Qui Tam Provisions The qui tam provisions of the FCA authorize private

President Donald Trump signed an Executive Order (EO) on March 26, “Addressing DEI Discrimination by Federal Contractors,” reinforcing the Trump Administration’s stance on DEI programs and escalating the related restrictions on what the Administration considers “racially discriminatory DEI activities.” The Executive Order, which took effect immediately, mandates that all federal government prime contracts, “contract-like” instruments and subcontracts, including lower-tier subcontracts, include a specific contract clause, requiring contractors to comply with the clause or risk potential False Claims Act (FCA) liability. Contractors

Government contractors generally look for stable and predictable partnerships to best serve their government customers. Contractors must establish and maintain well-structured compliance systems and frameworks to ensure they conform to federal statutes, regulations and guidance. But the only constant in government contracting is, not surprisingly, change. Sometimes the change is minor and requires small adjustments; other times the change is more like a punch to the throat. The Department of Defense’s recent action concerning artificial intelligence company Anthropic and its AI

Doing business with the federal government historically has been competitive but relatively stable. Now, while the competition may remain, stability and certainty have all but disappeared. The uncertainty began with the flurry of Executive Orders issued during the first year of the second Trump Administration, including the kickoff of the “Revolutionary” Federal Acquisition Regulation (FAR) Overhaul (RFO). The RFO represents an ambitious effort to fundamentally overhaul the FAR. Whether the RFO is necessary or prudent is a matter on which reasonable

Government contractors and grant recipients should heed the warning bell represented by the record haul of recoveries in 2025 under the federal False Claims Act (FCA). Although more than $6.8 billion was collected, according to the Department of Justice (DOJ), more troubling is the record number of 1,297 qui tam suits filed. This growth of whistleblower lawsuits comes just as DOJ has voiced its intent to use the FCA to combat diversity, equity and inclusion (DEI) initiatives. DOJ Investigations The DOJ is

On Dec. 18, 2025, the Department of Defense (DoD) issued deviations to over half of the Defense Federal Acquisition Regulation Supplement (DFARS) Parts, all of which became effective Feb. 1, 2026. Two days later, DoD issued a deviation for DFARS Part 204, which became effective Feb. 17. These deviations reorganize and streamline some of the DFARS regulations and contract clauses that define contractors’ cybersecurity requirements. Technically, they are “temporary” exceptions to the DFARS that were issued on an emergency basis in

(A version of this blog post has been previously published with the possibility of a federal government shutdown. After weathering the longest government shutdown in U.S. history last fall, government contractors now face an imminent partial shutdown Jan. 31. Full-year appropriations for the Departments of Agriculture, Veterans Affairs, Justice, Energy, Interior and Environment, as well as the legislative branch, military construction, science (including NASA and the National Science Foundation) and water development have already passed. However, appropriations bills for the Departments of Labor, Homeland

W.C. Fields once said that there comes a time in everyone’s life when they “must take the bull by the tail and face the situation.” For contractors in the Defense Industrial Base (DIB), that time has apparently come when, at long last, the Cybersecurity Maturity Model Certification (CMMC) Program began its phased rollout Nov. 10. As previously discussed, Phase 1 sees the incorporation of the new DFARS CMMC clause into all solicitations involving the handling of Federally Controlled Information (FCI) or

The Federal Acquisition Regulatory Council (FAR Council) recently released the rewrite of FAR Part 19, a notoriously complex set of regulations that covers the policies, procedures and programs designed to maximize small business participation in federal contracting. This rewrite is intended to enhance the intuitiveness and ease of applying regulations to small businesses in the federal procurement process. The FAR Council also issued a Practitioner Album, which summarizes proposed changes to the regulations and provides helpful guidance and resources for

On September 10, 2025, the Department of Defense (DoD) issued a Final Rule officially incorporating the Cybersecurity Maturity Model Certification (CMMC) Program into the Defense Federal Acquisition Regulation Supplement (DFARS). The Final Rule establishes the processes for integrating the CMMC requirements into DoD Contracts and Subcontracts and creates two new contract clauses that make CMMC compliance a condition for award. The Final Rule is effective November 10, 2025, which gives entities a brief window of time to familiarize themselves with

(A version of this blog post has been previously published with the possibility of a federal government shutdown. Federal funding is set to expire Sept. 30 if lawmakers do not reach a deal.) Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal employees, among other considerations. Contractors can minimize the effect

The Court of Appeals for the Federal Circuit has resolved once and for all the question of who can file a bid protest before the Court of Federal Claims (COFC). In Percipient.ai, Inc. v. United States, its Aug. 28 precedential decision, the court – sitting en banc – held that only actual or prospective offerors qualify as “interested parties” under the Tucker Act. As we previously discussed, a panel of the Federal Circuit ruled in June 2024 that Percipient.ai Inc. had standing to

We previously discussed how the work of the Trump administration’s Department of Government Efficiency (DOGE) is making the decision to protest more critical than ever for offerors, particularly as the end of fiscal year rush to award contracts begins to play out. For awardees, the decision to intervene is just as critically important. Every contract won is becoming more valuable in relation to what, for many contractors impacted by the DOGE effect, is a waning universe of contracting opportunities. By intervening,

By now, anyone who has had their finger on the pulse of government contracting is keenly aware of the impact the Trump administration’s Department of Government Efficiency (DOGE) has had on acquisitions. As of this writing, DOGE claims the amount of dollars saved because of the 13,000-plus contracts terminated to be greater than $58 billion. And while that figure has been debated and, even if accurate, would represent only a small fraction of the hundreds of billions of dollars the

The U.S. Supreme Court agreed last week to permit the National Institutes of Health (NIH) to terminate hundreds of grants related to diversity, equity and inclusion (DEI) initiatives worth approximately $800 million. The order was issued in response to the government’s emergency request to stay a lower court injunction barring the termination of the grants. The Supreme Court held that suits challenging these terminations must be brought before the Court of Federal Claims (CFC) and that, conversely, the federal district

This is part of a series discussing state-level bid protests in the DMV. Click here to read about the process in D.C. and click here to read about the process in Virginia. Protest procedures in Maryland are less centralized than D.C. but more centralized than Virginia. Generally Relevant Law The majority of relevant authorities in Maryland are found in Division II of the State Finance and Procurement Article in the Maryland Code (SF&P) and Title 21 of the Maryland Code of Regulations (COMAR). Authority to

This is part of a series discussing state-level bid protests in the DMV. Click here to read about the process in D.C. and click here to read about the process in Maryland. In the Commonwealth of Virginia, decentralization is the rule. Virginia state law generally vests procurement authority in the individual agency or locality, where a protest can move very quickly from submission to the awarding procurement authority onto appeal at the circuit court. With these principles in mind, here is a

On July 8, 2025, President Trump issued an order to unwind the acquisition of Jupiter Systems, Inc., a U.S. company, by Hong Kong-based Suirui International Co., Ltd., a subsidiary of China’s Suirui Group (collectively Suirui), five years after the transaction closed. According to the Treasury Department’s July 11 statement, the Committee on Foreign Investment in the United States (CFIUS) had “identified a national security risk arising from Suirui’s ownership of Jupiter relating to the potential compromise of Jupiter’s products used

This is part of a series discussing state-level bid protests in the DMV. Click here to read about the process in Virginia and click here to read about the process in Maryland. For a contractor who just expended significant time and money to bid on a DMV state-level government contract, only to watch the award go elsewhere, disappointment is understandable. But is this the end? What if the contractor believes that the state agency got it wrong? Can the contractor do anything? If so,

President Donald Trump issued an executive order (EO) earlier this month announcing sweeping “reciprocal” tariffs on imports from countries across the world. One country missing from the EO’s increased tariffs was Russia, despite its ongoing trade surplus with the United States. In response to the scrutiny this has drawn, the White House offered existing U.S. sanctions on Russia as the basis for its exclusion. While the EO’s more substantial “reciprocal” tariffs are currently suspended (except for China), these discussions raise the

Yogi Berra once said, “The future ain’t what it used to be.” Those who have spent a career in federal procurement have seen many cycles of well-intentioned procurement reform instead create a system that is more complex, arcane and inefficient with each iteration.  Any long-serving procurement professional has a bookshelf of Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) volumes that visibly get thicker with each issue; the current copies are more than twice as thick as the

In a few short weeks, President Donald Trump has issued several executive orders (EOs) that, once implemented, will significantly alter federal procurement. We previously reviewed the EO directing the modernization of defense acquisition processes. Last week, the president issued another EO, “Ensuring Commercial, Cost-Effective Solutions in Federal Contracts,” to fulfill the administration’s goal of eliminating unnecessary and imprudent expenditures of taxpayer dollars by focusing on commercial products and services that provide better, more cost-effective solutions to taxpayers. This EO directs federal

President Donald Trump signed an executive order April 9, “Modernizing Defense Acquisitions and Spurring Innovation in the Defense Industrial Base,” to reform the United States’ “antiquated defense acquisition processes.” The EO is intended to rectify “years of misplaced priorities and poor management” by improving the speed, flexibility and execution of defense acquisitions and eliminate perceived waste and inefficiency. The plan also would modernize the duties of the defense acquisition workforce and incentivize and reward personnel for risk-taking and innovation. Given the

President Donald Trump signed a number of executive orders in his first week in office with broad implications for federal agencies, contractors and, potentially, private employers. Executive orders only apply to federal agencies and their employees and do not impose requirements on private employers. But private employers should be aware of these issues and prepare for potential impacts on their organizations. Order on Gender Identity and Expression Trump signed an executive order Jan. 20, titled “Defending Women From Gender Ideology Extremism and

Government agencies may be eager to exercise their enhanced authority to investigate and pursue contractors under provisions in the newly enacted Administrative False Claims Act (AFCA). The two key changes discussed below could increase the number of claims that agencies may find appealing to investigate. Although these changes affect contractors of any size, small business contractors are likely to find investigations more disruptive if they lack a robust compliance program. But there are ways they can protect themselves by preparing for

President Joe Biden signed into law last week the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025 (NDAA). This defense policy and budget bill contains a discretionary topline of $895.2 billion to be split between the Department of Defense (DoD), Department of Energy (DOE) and other agencies for national defense related spending. The NDAA is a critical piece of legislation that guides the creation of many federal procurement regulations, and this year is no different.

The Small Business Administration (SBA) published earlier this month one of the most significant rule changes in recent history. We previously addressed the new M&A and long-term recertification rules. Now, we’ll examine the homogenization of the negative control rules across the SBA’s small business and socioeconomic programs, as well as the approval of rights of first refusal (ROFRs) for all these programs. These rule changes could materially improve access to capital for 8(a) program participants, woman-owned small businesses (WOSBs) and

The Small Business Administration published a gargantuan new rule Tuesday that will significantly change small business contracting for years to come. The rule was styled “HUBZone Program Updates and Clarifications, and Clarifications to Other Small Business Programs,” and while a large swath of the rule is directed at the HUBZone program, the most consequential changes affecting the largest number of contractors are the “Other Small Business Programs” updates. These changes affect how small businesses calculate their size, permit minority investment, leverage past performance

The Court of Appeals for the Federal Circuit last month granted the Government’s petition for rehearing en banc of the precedent-setting decision in Percipient.ai, Inc. v. United States. A divided panel of the Federal Circuit held in June that a prospective subcontractor had standing to challenge the Government’s alleged failure to adhere to the statutory preference for commercial items. The decision thus expanded the definition of “interested party” under the Tucker Act much more broadly than previous decisions of the Federal

The Federal Acquisition Regulatory (FAR) Council issued an interim rule earlier this month revising FAR 52.204-7 to require offerors to be registered in System for Award Management (SAM) at two points in time: “[1] when submitting an offer or quotation and [2] at time of award.” The interim rule clarifies that offerors are not required to be continuously registered in SAM between those two dates, which is how decisions by the Government Accountability Office (GAO) and the Court of Federal

The Department of Defense (DoD) published a Final Rule earlier this month formally implementing the Cybersecurity Maturity Model Certification (CMMC) Program. This Final Rule is the culmination of five years of work to standardize the safeguards that government contractors must implement to protect Federal Contract Information (FCI) and Controlled Unclassified Information (CUI) while also bolstering compliance with these requirements. (For more background on the road to the Final Rule, please read our earlier blog posts on what we’ve called “CMMC Program

The Court of Appeals for the Federal Circuit (CAFC) continues to redefine the Court of Federal Claims’ (COFC) ability to hear cases affecting all stages of the federal procurement process. Last year alone witnessed decisions in which the CAFC established the Tucker Act’s “interested party” analysis as a matter of statutory standing only, recharacterized its long-standing waiver rule for solicitation defects as a non-jurisdictional claims-processing rule  and rejected the notion that the Contract Disputes Act’s “sum certain” requirement could be used

Companies competing for federal contracting opportunities now have yet another reason to fear their proposals being rejected and their awards getting overturned. A recent decision by the Government Accountability Office (GAO) held that continuous registration in the System for Award Management (SAM) is mandatory throughout the evaluation period for an offeror to be eligible for award, even if a period of lapsed registration is as short as 24 hours. If that were not concerning enough, GAO is not alone in its

As the Virginia General Assembly’s session nears its conclusion, lawmakers continue to revise the two-year state budget that may create significant alterations to the state’s current taxing scheme, particularly in the areas of sales and use tax. Background Virginia institutes two forms of sales and use tax: the Retail Sales and Use Tax that is historically limited to sales of tangible personal property and a handful of enumerated services at a rate of 5.3%; and the Communications Sales and Use Tax that is

(A version of this blog post was originally published in September and then published again in January. Funding for several federal agencies will run out Friday night, with funding for the remaining agencies expiring March 8, if Congress does not act.) Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal employees, among

(A version of this blog post was originally published in September. Congress has until Jan. 19 to approve four separate appropriations bills to keep the government open.) Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal employees, among other considerations. Contractors can minimize the effect of the shutdown by reviewing their

Any acquisition involving a small business government contractor comes with a host of questions concerning what effect, if any, the transaction may have on the small business’s size and status post-closing. Will a firm that certifies as small or for a particular small business socioeconomic status (Woman Owned Small Business, Service Disabled Veteran Owned Small Business (SDVOSB), etc.) pre-closing keep its status even after the deal? In many cases, no. This potential reality leads to more questions. What will become of

The potential government shutdown Sunday would impact a host of federal government programs and agencies, and immigration is no exception. Here’s a look at the potential impact of a shutdown on immigration-related programs and what employers and foreign workers can expect. USCIS U.S. Citizenship and Immigration Services (“USCIS”) is a fee-based agency — as opposed to having its funding appropriated by Congress — and, therefore, many of its operations will continue as normal. USCIS should continue to accept, process and adjudicate petitions

The end of the federal fiscal year is rapidly approaching with no compromise in sight. Unless an appropriations bill or continuing resolution is passed by Congress before Oct. 1, a lapse in appropriated funds will occur, causing a government shutdown. Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal

Almost a year to the day after the Build America Buy America Act (BABA) became law, the federal Office of Management and Budget (OMB) has published its “Final Guidance for Grants and Agreements” intended to implement BABA’s domestic content preference requirements (88 FR 57750, Aug. 23, 2023). BABA and Prior OMB Guidance BABA was enacted last August as part of the Infrastructure Investment and Jobs Act (IIJA) (see sections 7091-70927, Pub. L. 117-58, 135 Stat 429). It imposes Buy America preferences for

It is not any exaggeration to say that mentor-protégé joint ventures (MPJVs) have taken over the world of set-aside Government-Wide Acquisition Contracts (GWACs). For example, late last year it was reported that the initial award list for CIOSP4 small business was entirely or mostly comprised of mentor-protégé joint ventures.[1] As a result, there is growing sentiment that using an MPJV is now required to win a seat on large, set-aside vehicles. This understanding has been reinforced by the recent changes

The U.S. Department of Defense (DoD) recently issued a proposed amendment to the Defense Federal Acquisition Regulation Supplement (DFARS) that tightens “Buy American” thresholds for DoD procurements. The Proposed Rule supplements and largely mirrors the Federal Acquisition Regulation (FAR) implementation of President Joe Biden’s Executive Order (E.O.) 14005, “Ensuring the Future is Made in All of America by All of America’s Workers,” while incorporating several DoD-unique requirements. Most importantly, the Proposed Rule introduces the following changes: Increases the Domestic Content Threshold.

The White House Office of Management and Budget (OMB) issued a Proposed Rule and Notification of Proposed Guidance to federal agencies earlier this year regarding the implementation of the Build America, Buy America Act (BABA), which imposes a government-wide preference for domestically produced iron and steel, manufactured products, and construction materials in federal infrastructure projects. The Proposed Rule builds upon the White House guidance for BABA released in April 2022. Although confusingly styled as “guidance,” the Proposed Rule proposes definitions

Many U.S. enterprises and U.S. real estate holdings have some degree of foreign ownership. Federal law requires the filing of detailed reports on foreign ownership every five years by U.S. enterprises “in which a foreign person . . . owned or controlled, directly or indirectly, 10 percent or more of the voting securities in an incorporated U.S. business enterprise, or an equivalent interest in an unincorporated business enterprise.” 15 C.F.R. part 801.10(b). The U.S. government expects this requirement to apply

The Federal Trade Commission (“FTC”) announced Jan. 23 annual revisions to the applicable thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). These revisions will apply to all transactions closing on or after Feb. 22. The new minimum size of transaction threshold has been adjusted upward, from $101 million to $111.4 million. Under the HSR Act, the parties to any proposed acquisition of assets, voting securities or non-corporate interests meeting prescribed thresholds must notify the FTC

The challenge posed to Department of Defense (DOD) contractors of complying with ever-shifting cybersecurity regulations and guidance continues unabated. On July 26, 2022, the Cyber Accreditation Body (Cyber AB) published a highly anticipated “Pre-Decisional Draft V1.0” of the Cybersecurity Maturity Model Certification (CMMC) Assessment Process (Draft CAP), which provides the procedures and guidance for CMMC Third-Party Assessment Organizations (C3PAOs) conducting official CMMC third-party assessments of organizations seeking certification (OSCs). The Cyber AB, formerly known as the CMMC Accreditation Body, is

The newly imposed deadline is fast approaching for Government Contractors required to develop annual Affirmative Action Plans (AAPs) to certify that they have in fact created such plans. Supply and service federal contractors and subcontractors who meet the designated jurisdictional thresholds for creating AAPs will need to register and certify by June 30, 2022 via the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) online Contractor Portal that they have created annual AAPs under all of the laws that

Highlights This Miles & Stockbridge alert provides a summary of the latest sanctions and developments regarding the ongoing situation in Ukraine. In response to Russia’s continued war operations and military attacks throughout Ukraine, the U.S. government and its allies imposed many more sanctions and new export control restrictions in the past week, specifically targeting Russian financial institutions, Russian state-owned enterprises, Russian elites,  and several of Russia's critical industrial sectors. In response to the Russian invasion and continued war operations throughout Ukraine, the U.S.

Yesterday (February 24th) as part of the broader response to Russia’s invasion of Ukraine – the White House announced strict export controls as part of the Biden Administration’s strategy to “squeeze Russia’s access to finance and technology for strategic sectors of its economy for years to come.” (President Biden’s remarks are found here.)  Those controls are part of a Final Rule “Implementation of Sanctions Against Russia Under the Export Administration Regulations (EAR)” (unpublished PDF version is found here) which, although

Federal supply and service contractors and subcontractors have long been required to create and maintain written affirmative action plans (“AAP”) if they meet certain contracting thresholds. Unless and until a contractor was audited by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), however, there was no real mechanism for the government to confirm that contractors were in compliance with these obligations. Even though contractors are required to certify compliance in order to contract, OFCCP’s experience through

The federal False Claims Act results in a host of interesting relator claims. This one caught my eye. In United States of America v. Intermountain Healthcare, Inc., Case No. 2:20-cv-00372-TC-CMR (U.S. Dist. Ct. D. Utah 1/28/2022), the relator alleged that anesthesiologists participating in his medical group often spent time during surgeries playing on their phones or other personal electronic devices. Some allegedly watched football, others paid bills. Naturally, the relator alleged that the anesthesiologists were not paying attention to their

On November 17, 2021, DoD published a notice of proposed rulemaking in the Federal Register, which formally announced the launching of the Cybersecurity Maturity Model Certification (CMMC) 2.0 framework. Among other things, version 2.0 streamlines the framework from 5 levels to 3 levels, scales back the requirement that all 300,000 contractors within the defense industrial base (DIB) obtain third party certification, and provides DoD additional flexibility by allowing for the limited use of Plans of Action & Milestones (POA&Ms) and

Medical providers often are left confused by the incredibly complex statutory and regulatory body of law implemented by the Centers for Medicare and Medicaid Services (CMS). Without further administrative guidance, providers are left to their own conclusions with regard to what CMS intended. Unfortunately, sometimes these decisions lead to expensive and time-consuming False Claims Act litigation brought by relators, who disagree with the provider’s interpretation. In a recent decision, the Fourth Circuit offers some well-deserved protection from False Claims Act actions

When can a data breach can get worse? When the process of notifying victims creates a second breach. Take the example of a cancer treatment center that recently paid $425,000 to settle allegations that included a faulty notification process following a breach. The story provides an important lesson. One Breach Leads to Another It began with a spear phishing attack. Employees at the facility fell victim to the attack and their email accounts were compromised. The result: protected health information and other

On November 4, 2021, the U.S. Department of Defense (DoD) Office of the Under Secretary of Defense for Acquisition and Sustainment (OUSD(A&S)) announced Version 2.0 of the highly publicized Cybersecurity Maturity Model Certification (CMMC). This updated version seeks to simplify the model and reduce compliance costs by streamlining the program and scaling back the requirement that all defense contractors obtain third-party certification of their cybersecurity capabilities. Under CMMC 2.0, contractors at the lower CMMC levels will be allowed to self-certify.

The Department of Justice (DOJ) recently overturned the prior administration’s limitations on the use of regulatory guidance in False Claims Act (FCA) litigation. Now, DOJ attorneys may rely on guidance documents “in any appropriate and lawful circumstances.” How should compliance programs respond to the resurgence of the regulators in the ongoing FCA wars? Background Former Attorney General Jeff Sessions initiated the limitation on the use of regulatory guidance in the prior administration with his Memo dated November 16, 2017. His mandate prohibited “Improper Guidance

On September 24, 2021, the Safer Federal Workforce Task Force issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Guidance”). This highly anticipated Guidance outlines the Covid-19 protocols for government contractors that were announced on September 9 in Executive Order 14042 (Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors) (“Order”), which was covered in a recent M&S Industry Alert. These new protocols will be enforced through a contract clause that must be included in all

On September 9, 2021, President Biden issued an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Order”). The Order seeks to “promote economy and efficiency in procurement” by requiring compliance with new COVID-19 protocols, which will be announced on September 24. The Order was issued on the same day as the President’s widely-covered speech announcing vaccine mandates for federal employees and businesses with 100 or more employees (see companion blog post, available here). Accordingly, although the Order

On April 27, 2021 President Biden issued an executive order requiring federal contractors and subcontractors to pay a $15 minimum wage to workers on federal contracts and to federal contract workers with disabilities, and directing the incremental elimination of the tipped sub-minimum wage for federal contractors by 2024. When the New Minimum Wage Goes into Effect Starting January 30, 2022 all federal agencies will need to include a $15 minimum wage in new contract solicitations, and the new minimum wage must be

China employs its Thousand Talents Program (“TTP”) to recruit overseas academic and scientific talent to work in China by promising research funding from the Chinese government and, occasionally, compensation. TTP has drawn increased scrutiny from the U.S. government, specifically the FBI and the Department of Justice, over purported concerns of intellectual property theft or espionage. However, a closer review of the actual charges brought to date by these government agencies reveals the crux of the matter has related to disclosures.

Maximizing the use of goods, products, and materials produced in the United States under the Buy American Act (BAA) is a bipartisan issue. In our previous post, “Ensuring the Future is Made in All of America by All of America’s Workers” (located here) we wrote about Executive Order 14005, signed by President Biden on January 25, 2021.  Among other things, EO 14005 directs the Federal Acquisition Regulatory Council (FAR Council) to consider proposing a rule that increases the thresholds for

On January 25, 2021, President Biden issued an Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers. The order is part of his “Build Back Better Recovery Plan” to strengthen American manufacturing and has potentially far-reaching effect. The order will tighten the federal government’s requirements to buy American products, support American jobs and rationalize the enforcement of the country’s patchwork of “Made in America” laws. Companies that supply goods and services to the

In response to 2020’s continued accounts of brutality and discrimination against Black people, and the corresponding wave of demands for accountability and racial justice, organizations across the country began implementing additional measures aimed at achieving equity in the workplace. In line with these initiatives, many organizations opted to provide various forms of diversity, equity, and inclusion training for their employees. These trainings often cover topics including unconscious bias, systemic racism, and white privilege. Trump’s Executive Order Seemingly in an effort to taper

On December 27, 2020, the Consolidated Appropriations Act, 2021 (the “Appropriations Act”), was signed into law following weeks of negotiations by members of Congress and Executive branch officials. The Appropriations Act combines an omnibus spending bill for the 2021 federal fiscal year with $900 billion in stimulus relief due to the ongoing effects of the COVID-19 pandemic in the United States. Division N, Title III, of the Appropriations Act is the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues

On January 1, 2021, the National Defense Authorization Act became law after Congress overrode the President’s veto. As highlighted below, Congress enacted a variety of key provisions that create significant and sweeping reforms to statutes and regulations designed to combat money laundering and terrorism financing. 1. Requiring Entities to Report “Beneficial Ownership” Congress determined that “malign actors” and “money launderers” conduct financial transactions through corporate structures that conceal their identities “much like Russian nesting ‘Matryoshka’ dolls.” In order to pierce these facades,

On November 18, 2020 the Internal Revenue Service (IRS) released a Revenue Ruling (Rev. Rul. 2020-27) and a Revenue Procedure (Rev. Proc. 2020-51) that discuss the handling of deductions for expenses paid with forgivable Paycheck Protection Program (PPP) loan proceeds in circumstances when either: (i) forgiveness has been applied for, but not granted by the end of 2020, or (ii) forgiveness has not been applied for, but all events have been met to give rise to a forgiveness application in

A medical device manufacturer learned what might seem an obvious lesson when it paid $18 million to settle a False Claims Act lawsuit brought by its former Compliance Officer: don’t ignore your compliance officer. The federal government received $15.21 million; state governments received $2.79 million; and the whistleblower received $2.65 million of the federal share. The company, Merit Medical Systems, Inc. (MMS), also must pay attorneys’ fees due to the whistleblower’s counsel and enter into a five-year Corporate Integrity Agreement with the

In the wake of the killing of George Floyd and other African Americans by police officers, many government contractors have undertaken social justice initiatives and increased training around unconscious or implicit bias. On September 22, 2010 President Trump signed an Executive Order "Combating Race and Sex Stereotyping" extending his ban on governmental agencies providing training that they believe is "divisive" and "promotes sexual and racial stereotyping" to Federal contractors and recipients of Federal grants. The Executive Order also requires posting notice of

With just a few weeks left in FY 2020, the OFCCP has published new lists of 2,450 establishments for audit. Federal contractors and subcontractors are highly encouraged to check the lists—one for supply and service contractors (which includes universities/colleges for the first time in three years), and one for construction contractors. The lists can be found here. The CSAL lists reflect a number of changes at OFCCP that are new. First, in a new era of remote audits, OFCCP District Offices

The Small Business Restructuring Act of 2019, Pub. L. 116-54, 133 Stat. 1079 (Aug. 23, 2019) (SBRA) became effective February 19, 2020. SBRA, among other things, created a new Subchapter V under Chapter 11 of Title 11 of the United States Code. Its purpose was to provide business debtors a more streamlined bankruptcy process for rehabilitating and restructuring debts when compared to a traditional Chapter 11 case. A further goal was to reduce the time and expense of small business

This week we take look at two recent federal decisions concerning the False Claims Act (“FCA”). The first case, Ndoromo v. Barr, is interesting because of the billion dollars in alleged damages. In this case out of the U.S. District Court for the District of Columbia, the pro se plaintiff sued various government officials, including the United States Attorney General, for over $1 billion dollars in damages.  In separate, prior proceedings, the plaintiff was convicted of various criminal charges, including healthcare fraud.

A look at selected soon-to-be-reported decisions on various False Claims Act issues. This month we can glean three quick lessons: 1) A lesson for corporate executives: If you are the owner/CEO, don’t transfer company funds to your personal bank account, particularly if the funds represent Medicaid payments received from inappropriately submitted claims. A home health care company, with a single owner/CEO and six employees, allegedly submitted claims for reimbursement to the D.C. Medicaid program for services provided to patients without adequate documentation of

On July 6, 2020, the Small Business Administration (SBA), in coordination with the Department of the Treasury, released data about borrowers who applied for and received money from the Paycheck Protection Program (PPP). Borrowers who received PPP loans of at least $150,000 are mentioned by name; borrowers who received PPP loans under $150,000 are not mentioned by name. Here are the other important details: Borrowers Who Received at Least $150,000: In addition to borrower name, certain other information pertaining to the borrower

The U.S. Department of Justice (“DOJ”) is scrutinizing borrowers who have applied for loans through the Small Business Administration’s Paycheck Protection Program (“PPP”), established by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). To date, the DOJ has filed charges in seven separate cases against defendants accused of fraud in connection with PPP loans, and the number of charges continue to grow. These charges demonstrate the Government’s strong intent to claw back any loan proceeds which were obtained

On May 28, 2020, the U.S. House of Representatives near-unanimously passed the Paycheck Protection Program Flexibility Act of 2020, H.R. 7010 (the “PPP Flex Act” or the “Flex Act”) as national leaders look to provide additional, more expansive support to small businesses impacted by COVID-19. The Senate passed the PPP Flex Act on June 3, and President Trump signed it into law on June 5.  This bill follows multiple rounds of guidance released by the Small Business Administration (the “SBA”),

On May 28, 2020, The Secretary of Commerce opened a new investigation to determine the effects on national security from imports of vanadium, pursuant to its authority under Section 232 of the Trade Expansion Act of 1962.  Interested parties are invited to submit written comments, data, analyses, or information pertinent to the investigation, no later than July 20, 2020.  A party potentially impacted in any way – directly or indirectly - by vanadium tariffs should consider submitting comments. Section 232 is

On May 8, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) announced the issuance of a new form that federal contractors must use to ask job applicants and employees to self-identify as disabled. This is the first revision to the form since March 2014, when the regulations implementing Section 503 of the Rehabilitation Act of 1973 were revised, and contractors were required to perform data collection regarding applicants and employees with disabilities. The 2014 regulations require federal contractors subject

On May 13, 2020, the U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the Treasury, provided the following critical guidance on the good-faith certification requirement for Payroll Protection Program (PPP) borrowers (updated FAQ): Any borrower who, together with its affiliates, received PPP loans with an original principal amount of less than $2,000,000 will be deemed to have made the necessity certification in good faith. Borrowers with PPP loans at or above $2,000,000 may still be deemed to have

As indicated in an earlier Miles & Stockbridge Government Contracts blog post, contractor reimbursement language in Section 3610 of the CARES Act raised numerous questions that contractors attempted to answer in the early weeks since the CARES Act’s enactment. Section 3610 permits agencies to provide many federal contractors struggling to stay afloat during the COVID-19 pandemic with financial relief by reimbursing certain paid leave costs, including sick leave. Since enactment, several individual agencies have taken steps to answer many of

On Thursday, April 23, 2020, the U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the Treasury, added new guidance to their Paycheck Protection Program (PPP) FAQ document, located here, which addresses certain questions regarding PPP loans under the CARES Act. This guidance was issued as Congress passed legislation that adds an additional $310 billion to the PPP. Most critically, SBA addressed the requirement that PPP borrowers certify that “[c]urrent economic uncertainty makes this loan request necessary

Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted on March 27, 2020, provides the possibility of welcome financial relief for many federal contractors struggling to stay afloat during the COVID-19 pandemic. Subject to certain prerequisites and constraints, Section 3610 permits agencies to reimburse, at “the minimum applicable billing rate not to exceed an average of 40 hours per week any paid leave, including sick leave, a contractor provides to keep its employees in a ready

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (or “CARES”) Act, the largest stimulus in American history (the “Act”). The Act expands eligibility and loosens restraints on the Section 7(a) Loan Program of the U.S. Small Business Administration (“SBA”), authorizes up to $349 billion in new Paycheck Protection Program Loans (“PPP Loans”), makes them 100% (rather than 75%) guaranteed and provides for PPP Loan forgiveness in certain circumstances. On April 2, 2020, the

With the novel coronavirus (COVID-19) causing Employers to switch to teleworking or temporarily shuttering their operations, government contractors have special challenges. Some employees of government contractors may not be able to work remotely under the terms of the government contract and others who perform classified work or need access to government networks may not be able to telework. Therefore, due to COVID-19, temporary furloughs of employees working for government contractors are likely. Government contractors should plan now for possible furloughs

As the marketplace slows in response to the worldwide spread of COVID-19, companies are (or should be) breaking out their contracts and subcontracts to see what they say to protect themselves from current and future problems. Here are the critical provisions. All Contractors and Subcontractors All companies should review their contracts and subcontracts for force majeure clauses. The critical issues related to these clauses are outlined in two articles posted to our Coronavirus Task Force website. The articles can be found here

On February 24, 2020, in Latiolais v. Huntington Ingalls, Inc., the Fifth Circuit joined the Third, Fourth, and Eleventh Circuits in applying the plain language of the revised Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1).  In doing so, it permitted a government contractor defendant to remove an asbestos-related lawsuit against it to federal court. James Latiolais worked as a machinist aboard the USS Tappahannock and alleged he was exposed to asbestos while the ship underwent refurbishing at government contractor Avondale

January 2020 was a very important month for DOD’s Cybersecurity Maturity Model Certification (CMMC) initiative.  Last week, on January 31, 2020, DOD issued CMMC “Version 1.0” to the public.  The Version 1 release includes three documents:  a “Briefing”; the CMMC Version 1; and Appendices A through F.  Also on January 31, DOD officials held a news conference discussing aspects of the CMMC initiative that are not discussed in Version 1.0.  Earlier in January 2020, the CMMC initiative took another significant

On December 13, 2019, DOD issued “Draft Version 0.7” of its Cybersecurity Maturity Model Certification (CMMC) to the public. Version 0.7 is a 190-page document, compared to the 90-page Version 0.6 issued in November of this year. Most of the increased length of Version 0.7 is attributable to two new appendices providing “Discussion and Clarification” for CMMC Levels 2 and 3. The new information in Version 0.7 does not, however, address many fundamental questions associated with the CMMC initiative. Background As discussed in

On November 8, 2019, the Small Business Administration published a proposed rule to combine the 8(a) Business Development (BD) Mentor-Protégé Program with the All Small Mentor-Protégé Program. 84 Fed. Reg. 60,846 (Nov. 8, 2019) The far-reaching SBA proposal also includes changes to the mentor-protégé programs, changes affecting joint ventures, changes for certain details in the 8(a) Program, and new requirements for certain multiple-award contracts, among others. Comments on the proposed rule are due January 17, 2020. Combining the 8(a) BD and All

On November 7, 2019, DOD issued “Draft Version 0.6” of its Cybersecurity Maturity Model Certification (CMMC) – a 90-page document that is available on DOD’s CMMC website.  Version 0.6 is a significant step forward, but there are still a large number of unanswered questions concerning the CMMC initiative. Background In October 2016, DOD issued a final rule implementing the current version of the clause at DFARS 252.204-7012, ‘Safeguarding Covered Defense Information and Cyber Incident Reporting.”  The clause is costly and burdensome, requiring (for example)

Hey, now!  It isn’t 1972 and John Lester “Johnny” Nash, Jr., did not jump from his singer-songwriter gig to writing regulations for Baltimore City, but to be sure, fall is here, the rain is (mostly) gone, and we have a much clearer view of the totality of applicable Baltimore City procurement regulations. It is now much easier for contractors, suppliers, and vendors to find City regulations concerning the procurement process. In fact, I think that it is fair to say

Background DoD’s 2016 final rule promulgating cybersecurity requirements at DFARS 252.204-7012 was a momentous development for DoD contractors, in part because the requirements included compliance with 110 security controls in National Institute of Standards and Technology (“NIST”) Special Publication 800-171. Compliance with these requirements is burdensome and expensive. Earlier this year, DoD announced a separate cybersecurity initiative called the Cybersecurity Maturity Model Certification (“CMMC”), which may prove to be just as significant for contractors as the 2016 final rule. As we

Small business federal contractors with annual revenues close to a relevant size standard should carefully review two important recent developments. The Small Business Administration (the “SBA”) adjusted its size standards, so that every size limit is now higher and the SBA will now average annual revenues over the preceding five years of operating rather than the previous three, as currently measured.   So small business federal contractors, or firms that recently outgrew size limits for qualifying as small businesses, should carefully

U.S. Small Business Administration (“SBA”) regulations require that mentor-protégé and socioeconomic joint ventures designate the protégé or socioeconomic member as the “managing venturer” of the joint venture. However, the regulations do not define “managing venturer” or state how much control such a “manager” must maintain over the joint venture. In the context of typical small business operating entities (i.e., not joint ventures), SBA’s Office of Hearings and Appeals (“OHA”) has offered detailed guidance on what it means to “control” such entities, but

In a significant decision for Government contractors, the Supreme Court has expanded the types of “commercial or financial information” that are “confidential,” and therefore exempt from disclosure under the Freedom of Information Act (FOIA). The case is Food Marketing Institute v. Argus Leader Media, 588 U.S. ___ (No. 18-481, June 24, 2019). FOIA’s Exemption 4 shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 1 To prevent disclosure, under previous lower-court decisions, information that was

The final DFARS cybersecurity rule promulgated in 2016, which included the latest changes to the DFARS clause at 252.204-7012, was a significant development for DoD contractors, in part because it mandates compliance with the 110 security controls in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171. DoD has been working with the contracting community since that time with respect to the implementation of the final rule, but has concluded that further compliance steps are needed in the

As predicted, a recent decision from the Federal District Court for the Eastern District of California is the first sign of a new, and potentially enormous wave, of Civil False Claims Act, 31 U.S.C. §§ 3729-33 (“FCA”) actions based on allegations of non-compliance with Federal procurement cybersecurity requirements. On May 8, 2019, that court issued a decision related to allegations of non-compliance with the Department of Defense’s (“DOD”) complex cybersecurity requirements in the DOD FAR Supplement (“DFARS”), 48 C.F.R. §

GAO’s authority to hear protests involving other transaction agreements, or “OTAs,” has been in the headlines over the past year. GAO recently issued a decision holding that it will not review the award of non-procurement instruments issued under an agency’s OTA authority. MD Helicopters, Inc., B-417379, Apr. 4, 2019, 2019 WL 1505296. OTAs are legally-binding instruments, other than contracts, grants, or cooperative agreements, that generally are not subject to laws and regulations applicable to procurement contracts. DOD has authority under 10

This is the final post in our three-part series on state level government contract claims, and the accompanying dispute processes, in the DMV. This post discusses the claims and disputes process for government contracts in the Commonwealth of Virginia. Our previous posts discussed the claims and disputes processes in Maryland and D.C.   In keeping with the Commonwealth’s decentralized procurement approach, and unlike Maryland and D.C., the Commonwealth does not have a Board of Contract Appeals. Consequently, a contract claim appeal typically must go to

Maryland “public work” contractors and subcontractors better be checking their payroll, and then checking it twice, because Senate Bill (“SB”) 300 just came to town! Of course, this level of payroll diligence should already be the norm, but effective October 1, 2019, the stakes for certain public work contractors and subcontractors are just a little bit higher for those that fail to pay the appropriate Maryland prevailing wage rates. As a result, the legal process for their underpaid employees could move much

In 2018 Maryland started three programs to stimulate cybersecurity commerce in the state: (1) tax credits for Maryland small businesses to buy cybersecurity products and services from Maryland suppliers, (2) tax credits for investment in Maryland cybersecurity suppliers, and (3) grants for Maryland Government contractors to become compliant with Department of Defense (DoD) cybersecurity rules.   1. Tax credits for Maryland small businesses to buy cybersecurity products or services from Maryland companies. The cybersecurity spending tax credit, the “Buy Maryland Cybersecurity Tax

This is the second part of our three-part discussion of state government contract claims and dispute processes in D.C., Maryland, and Virginia (see part 1 discussing the claims and disputes process in Maryland). This second post focuses on contract claims and disputes in the District of Columbia.  As a takeaway from this series, there are noticeable differences between the claims processes in the three jurisdictions. For example, whereas in Maryland the strictly enforced 30-day notice requirement to start the claims process prompts

During the course of performance on a state level government contract, even the smoothest relationships between the contractor and its government customer can go awry. This can happen for a multitude of reasons—ambiguous contract terms, the parties’ discordant course of conduct, changes in personnel, misunderstandings, intervening circumstances, etc. Normally, the parties work out the issues as they arise, and move on. However, what happens when discussions and negotiations between the parties reach an impasse? How can an aggrieved contractor seek

On January 15, 2019, the Section 809 Panel released the third and final volume of its report to Congress recommending changes to the defense procurement system. The latest volume makes the Panel’s most sweeping recommendations, including recommendations on reforming the bid protest process for defense procurements. This Alert describes the changes to bid protests envisioned by the Panel’s report, their potential impact, and prospects for adoption. What is the Section 809 Panel? The Section 809 Panel is named for the section of

As part of a series of recent Government publications concerning Department of Defense (DOD) cybersecurity efforts relating to contractors, on January 21, 2019, Ellen Lord, Undersecretary of Defense for Acquisition and Sustainment, issued a significant Memorandum entitled “Addressing Cybersecurity Oversight as Part of a Contractor’s Purchasing System Review” (the “Memo”). 1 As discussed below, the Memo should have important consequences for many DOD contractors. Background As most DOD contractors know, the DOD FAR Supplement (DFARS) cybersecurity clause at 252.204-7012 required compliance with the requirements

2018 was a busy year in terms of changes to the statutes and regulations that govern small business and socioeconomic set-aside procurement activities for small and large firms alike. This Miles Alert discusses two of the highlights: (1) The Small Business Runway Extension Act of 2018 amending the Small Business Act to extend the period of measurement used to determine whether a business is considered “small,” and (2) the FAR Council’s long-awaited issuance of a proposed rule to reconcile the FAR’s Limitation on the

There have been notable developments in the past few months concerning DOD’s cybersecurity clause, DFARS 252.204-7012, and related DOD cybersecurity efforts. This Miles Ahead Alert summarizes those developments, and provides thoughts about the future. The New DOD Task Force On October 24, 2018, citing the loss of classified and controlled unclassified information (CUI) that is putting DOD’s investments at risk and eroding the lethality and survivability of our forces, Secretary of Defense Mattis issued a memorandum establishing the “Protecting Critical Technology Task Force.” The memo indicates that the

On January 31, 2019, President Trump signed an “Executive Order on Strengthening Buy-American Preferences for Infrastructure Projects” (the “Order”), here. The Order is the second executive order issued by President Trump that aims to strengthen existing domestic preference acquisition policies within the United States – this time focusing on infrastructure projects and broadening the scope of a previous Buy American executive order beyond federal procurements and grants. Background and Requirements of the Executive Order President Trump issued the previous executive order (“EO 13788”)

Note to the Reader—on February 1, the EEOC did, if fact, extend the reporting deadline for the 2018 EEO-1 Report until May 31, 2019.  The EEOC will also provide updated submission instructions in the near future.  The EEOC’s notice is available here. If you are a Government prime contractor or subcontractor working under an agreement worth at least $50,000, and you have at least 50 employees (part-time employees included), then March 31, 2019 should mean something to you. March 31 is the day

On Monday, December 17, 2018, President Trump signed into law the Small Business Runway Extension Act of 2018. To determine whether a federal contractor qualifies as a small business, the yardstick will now be the average of five years’ gross receipts, instead of the previous average of three years. The small business community generally welcomes the change, because many contractors will now retain small business status for longer, giving them more time to mature and become competitive in the federal marketplace. Our previous

** Important Note ** Small business size status will soon be determined by average revenues for five years, up from three years.  This exciting development will enable many businesses to remain in the small-business Government contracting category for years longer. This blog describes passage of the Small Business Runway Extension Act of 2018 by the House, and the Senate surprised with quick passage.  The bill now goes to the President, whose signature is expected.   Watch here for a future post about the effective

On September 17, the President directed the U.S. Trade Representative (“USTR”) to impose additional tariffs on importers of Chinese goods. The official statement is available here.     To recap, this is the third tranche of tariffs on imported Chinese goods. The first tranche, which we blogged about here, went into effect on July 6, and covered 818 tariff schedule categories. To request an exclusion from the tranche one tariff increase, an importer must file its request with the Office of the USTR by October 9,

The Office of the U.S. Trade Representative (“USTR”) has published the procedures for an importer to request an exclusion from the first round of increased tariffs on Chinese goods, available here. See 83 Fed. Reg. 32,181-32,184 (July 11, 2018).   Our previous blog post, available here, described the tariffs and why they are being imposed, in detail. To have covered goods or materials exempted from the higher duties, an importer has almost 90 days, until October 9, 2018, to file an exclusion request with the

As instructed by President Trump, the U.S. Trade Representative (“USTR”) has just ordered a 25% ad valorem (according to the value of the article) tariff increase on hundreds of products coming from China. It is an increase, so if the previous tariff on a particular product was 5%, the new tariff will be 30%. The new tariffs are intended to target Chinese products in the aerospace, automobile, IT, communications, robotics, and industrial machine industries (under Harmonized Tariff Schedule of the United States

UPDATE:  Effective May 25, 2018, the SBA updated its regulations in an apparent attempt to invalidate the holding in Analytic Strategies. However, because the SBA termed this update a “technical correction,” which is a designation reserved for non-substantive matters, and because the update might not address the entirety of the holding in Analytic Strategies, it is not clear whether the update will result in the case being overturned. Nonetheless, the law in this area has once again returned to a state of uncertainty. It

In our previous two posts, addressing bid protests in D.C. and Maryland, we provided the reader with a survey of the authorities and relevant protest procedures for procuring agencies in those jurisdictions. Those articles can be found here and here. To recap, Maryland can be characterized as having a predominantly centralized procurement system, with most purchasing authority being delegated by its Governor-led Board of Public Works, and many protest roads leading to the Maryland State Board of Contract Appeals.   D.C. is somewhat less centralized.

For the second post in our three part series regarding state-level bid protests in the DMV, we turn our attention to the District of Columbia. In our first post we discussed the authorities and procedures for Maryland procurement protests. That article can be found at this link.   As should be apparent by the end of this series, D.C.’s bid protest process has many features that distinguish it from the Maryland and Virginia protest regimes. For example, whereas the procuring agency itself

This is part 1 of a 3 part series discussing state-level bid protests in the DMV.      For a contractor who just expended significant time and money to bid on a DMV state-level government contract, only to watch the award go elsewhere, disappointment is understandable. But, what if the contractor believes that the state agency got it wrong?  How can the contractor challenge the award? The answer is that the contractor can file a state-level bid protest to challenge the procurement result

Electronic filing of bid protests and the $350 filing fee are finally here. On Monday, April 2, 2018, the U.S. Government Accountability Office (GAO) published a final rule implementing two key changes to the bid protest process that have been anticipated for several months. First, mandatory electronic filing of protests through the new Electronic Protest Docketing System (EPDS) is effective May 1, 2018. Second, as part of implementing EPDS, GAO is implementing a mandatory $350 filing fee to pay for the costs of

Enhanced debriefings are finally here.  On March 22, 2018, Shay Assad, the DoD Director of Defense Procurement and Acquisition Policy, issued a DoD-wide policy directive that, effective immediately, DoD is offering “enhanced postaward debriefings” to unsuccessful offerors.  Def. Acquisition Reg. Sys. Memo. No. 2018-O0011 (Mar. 22, 2018).  Mr. Assad’s policy directive, issued as a class deviation to the Federal Acquisition Regulation, gives practical effect to Section 818 of the National Defense Authorization Act for Fiscal Year 2018.  Accordingly, an unsuccessful offeror to

By now, most government contractors with DoD contracts are at least aware that there is a DFARS clause requiring compliance with new cyber requirements by no later than December 31, 2017. These DFARS cyber requirements are mandatory for all DoD solicitations (DFARS 252.204-7008) and contracts (DFARS 252.204-7012) other than those solely for the acquisition of COTS items. Even the largest defense contractors have expressed concerns about how they will fully comply with these requirements, and how compliance will be enforced,

Congress’s use of stopgap measures – Continuing Resolutions – to fund the Government create the potential for shutdown of the Government if a Continuing Resolution expires without another funding measure in place. When the Government shuts down, the Government offices which rely upon appropriated funds execute their “orderly” shutdown plans, and the affected Government employees who are not considered excepted (a.k.a. “essential”) will be furloughed. To prepare for such a shutdown, Contractors should take action (before contracting officers leave for

Highlights: Research study refutes concerns that bid protests delay DoD procurements and debunks other common myths. Congress enacts legislation requiring better debriefings and providing for “loser pays” pilot program. Over the past few years, critics of the bid protest system have claimed that too many frivolous protests inflict unnecessary and costly delays upon acquisitions by the Department of Defense (DoD). As one consequence of these criticisms, the National Defense Authorization Act (NDAA) for Fiscal Year 2017 commissioned a study of the bid protest

Last year the U.S. Supreme Court in Kingdomware Technologies Inc. v. United States[1] appeared to have settled a long-standing dispute about whether the U.S. Department of Veterans Affairs must prefer service-disabled veteran-owned small businesses (“SDVOSBs/VOSBs”), instead of purchasing products or services from the General Service Administration’s Federal Supply Schedules. The Supreme Court ruled against the VA, holding that pursuant to the Veterans Benefits, Healthcare and Information Technology Act of 2006,[2] the VA was required to set aside a procurement whenever

As of December 2016 Congress has (again) revised the law about which civilian agency task order and delivery order (TO/DO) awards can be protested. Bidders who may want to protest such awards (or fend off such protests) need to know the new rules. Civilian TO/DO Awards over $10 Million On September 30, 2016, the Government Accountability Office’s (GAO) jurisdiction over protests against most types of civilian TO/DO awards lapsed, leaving many disappointed bidders without protest remedies. To fix this problem, on December