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Alex Major

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Mr. Major is a partner and co-leader of the firm’s Government Contracts & Export Controls Practice Group. Mr. Major focuses his practice on federal procurement, cybersecurity liability and risk management, and litigation. A prolific author and thought leader in the area of cybersecurity, his professional experience involves a wide variety of litigation and counseling matters dealing with procurement laws and federal regulations and standards . His diverse experience includes complex litigation in federal court under the qui tam provisions of the False Claims Act and bid protest actions. He counsels all sizes of companies on issues relating to compliance with government regulations including, among other things, cybersecurity (NIST, FIPS, FedRAMP, and DFARS) requirements, multiple award schedule compliance, Section 508 issues, country of origin requirements under the Buy American and Trade Agreements Acts, cost accounting, and small business requirements. He also regularly conducts internal investigations to assist companies ensure that they are in full compliance with the law.

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Hollywood is full of them. And unless you are trapped on the Planet of the Apes, caught on the 3:10 to Yuma, or running from Godzilla, you’ve probably seen a movie reboot or two over the past two decades. The term generally refers to the new start of a known fictional universe where established continuity is discarded to re-create that series’ characters, plotlines, and backstory from the beginning. Thankfully—and I’m looking at you, CMMC—that is a trend that appears to be confined to the entertainment industry and not one that will be adopted in federal contractor cybersecurity. To be sure, on May 10, 2023, the National Institute of Standards and Technology (NIST) released for review and comment a draft of Revision 3 of its Special Publication (SP) 800-171, Protecting Controlled Unclassified Information (CUI) in Nonfederal Systems and Organizations. Not only is NIST seeking comments via email no later than July 14, 2023, on Rev. 3, it has even provided a comment template to help with that effort. Let’s get into some of those key changes to demonstrate how Rev. 3 is more of a sequel than a reboot.…

Continue Reading NIST SP 800-171 Revision 3: Not Another Reboot

Scenario 1: A pharmacy chain hires a value consultant to review its Medicare and Medicaid billing practices for ways to optimize the coding of drug reimbursements to maximize profits. Drugs that had historically been charged for government reimbursement at $1/pill as the “usual and customary price” are now getting coded for reimbursement at $3/pill—a 200% markup that represents a pure profit windfall to the pharmacy chain. Is this a violation of the False Claims Act (FCA)?

Scenario 2: A construction company that has years of experience in federal procurement contracting had never charged the government for reimbursement of several cost items, because the company’s previous CFO did not feel such reimbursement would meet the “reasonableness” requirements of FAR Part 31 (e.g., FAR 31.201-2(a)(1) and 31.201-3). But the company’s new CFO, holding a different interpretation of the reasonableness standards and Cost Accounting Standards (CAS), instructs his program leads to start charging those items for reimbursement in all new and existing contracts. Is this a violation of the FCA?…

Continue Reading Knowing IS the Battle: Supreme Court to Address the FCA’s Scienter Standard

According to the Office of Federal Contract Compliance Programs (OFCCP), since 2019, Will Evans, a reporter for the Center for Investigative Reporting, has sought the Employment Information Report (EEO-1) data of federal contractors through a Freedom of Information Act (FOIA) request to OFCCP. Mr. Evans amended his FOIA request on June 2, 2022, and now seeks the Type 2 Consolidated EEO-1 Report demographic data of federal prime contractors and first-tier subcontractors for 2016–2020. OFCCP estimates that this impacts approximately 15,000 contractors and first-tier subcontractors.

What does this mean? Absent an objection, OFCCP could disclose your company’s Type 2 Consolidated EEO-1 Reports Component 1 data for 2016–2020 in response to Mr. Evans’s FOIA request.

What is an EEO-1 Report? The EEO-1 Report is the form used annually by the Equal Employment Opportunity Commission and OFCCP to collect a summary of an employer’s workforce data.…

Continue Reading Attention Federal Contractors and First-Tier Subcontractors: Your EEO-1 Reports May Be Responsive to an OFCCP FOIA Request, and You Have Only until September 19, 2022, to Object.

For just shy of a decade, the Defense Industrial Base (DIB) has had to operate under rules dictating the safeguarding of Controlled Unclassified Information, along with a strict 72-hour notification requirement if/when/should a “cyber incident” occur. For the uninitiated, these are the requirements found in the Department of Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012. And for a large swath of government contractors, these requirements have been more bane than benefit, as many have struggled to meet the DFARS’ stringent requirements.

Well, critical infrastructure industry, welcome to the party! Soon, companies involved in all sectors of critical infrastructure will need to comply with new federal reporting requirements for cybersecurity incidents and ransom payments after President Joe Biden signed The Cyber Incident Reporting for Critical Infrastructure Act of 2022 (the Act) into law on March 15, 2022. Tied to an omnibus appropriations package, the Act requires entities involved in critical infrastructure to report cyber incidents to the Cybersecurity and Infrastructure Security Agency (CISA) within 72 hours and any paid ransom demands within 24 hours. While these new reporting obligations will not become effective until CISA promulgates rules to further define requirements, as the DIB’s effort has demonstrated, it would be wise to examine best practices in incident response plans to begin sooner rather than later.…

Continue Reading Critical Infrastructure Industry Drafted: Welcome to the Cyber War

Regardless of whether they were eagerly anticipated or begrudgingly unavoidable, the changes promised to the Buy American Act (BAA) early last year have at last arrived, or at least are quickly approaching. On March 4, 2022, the Federal Acquisition Regulation (FAR) Council released its long-anticipated Final Rule implementing important revisions to the BAA provisions of the FAR and incorporating the requirements outlined in President Biden’s January 28, 2021 executive order, “Ensuring the Future Is Made in All of America by All of America’s Workers.” Although the Final Rule, for the most part, conforms with the Proposed Rule issued in July 2021 (which we previously discussed here), the most notable aspect may be that the Final Rule’s effective date was delayed until October 25, 2022. This generous gap provides contractors with roughly 235 days to fortify their compliance efforts and ensure that necessary policies and procedures are in place to meet the necessary supply chain and regulatory changes imposed by the Final Rule — well  in advance of Halloween.
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Continue Reading With Just a Little Ado: Significant Buy American Changes Are Coming Before Halloween

With Spring Training just a few weeks away it looks like the Biden Administration is stepping up to the plate to ensure the plans in its $1 trillion Infrastructure Investment and Jobs Act can avoid strikes. On February 4, 2022, President Biden signed the Executive Order on the Use of Project Labor Agreements for Federal Construction Projects (the Executive Order), which requires the federal government, in an effort to avoid potential labor disputes and delays in any “large-scale construction contract” (a project valued at over $35 million), to use project labor agreements before awarding a contract. The Executive Order is effective immediately, and construction contractors should begin seeing it applied in future and maybe even pending solicitations or orders. How, exactly, the Executive Order will appear in immediate solicitations is unclear, but the FAR Council is tasked with implementing the Executive Order within 120 days before promptly issuing a final rule. Before that happens, let’s tap the mud off the cleats and make sure you’re ready to play ball.
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Continue Reading PLAy Ball! Executive Order Directs Project Labor Agreements for Construction Projects Over $35 Million

The Cybersecurity Maturity Model Certification version 2.0 (CMMC 2.0) is here! Like a song you’ve heard before, the revised standards are a throwback but no less significant change to the standards that have evolved over the past three and a half years. McCarter & English Government Contracts and Global Trade co-leaders Alex Major and Franklin Turner detail the changes coming to federal contractors in a Feature Comment for Thomson Reuters’ The Government Contractor. Set against the recent Beatles documentary, the comment examines the impact of the Department of Defense’s most recent effort while detailing what contractors need to do before its new standards go into effect.
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Continue Reading Get Back: DOD Retreats While Revealing Plans for CMMC 2.0

After months of review, on November 4, 2021, the Department of Defense (DoD) finally unveiled its new version of the Cybersecurity Maturity Model Certification (CMMC 2.0). Well, almost. In a blink-and-you’ll-miss-it moment, the Department posted, then quickly removed, new federal regulations in/from the Federal Register highlighting the changes in CMMC. Most of those changes, however, were ultimately described on the OUSD Acquisition & Sustainment website, which remain posted and available. In conducting its review of CMMC 1.0, the DoD focused largely on clarifying the standard and reducing the cost impact on the Defense Industrial Base (DIB). The result? A “been there, already had to do that” standard that should leave the DIB relatively pleased and the burgeoning CMMC accreditation industry mildly perplexed. In place of the five-tiered, third-party-assessed cybersecurity framework addressing data confidentiality, integrity, and availability, the new CMMC 2.0 presents as a three-tiered, largely self-assessed bolstering of the NIST SP 800-171 safeguarding requirements already required to be implemented by contractors in possession of “Covered Defense Information” (CDI) under DFARS 252.204-7012.
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Continue Reading CMMC 2.0: Throwback Cybersecurity — Everything Old Is New Again

Four memoranda, released in the last several business days, provide federal contracting officers guidance and suggested clauses to implement President Biden’s Executive Order 14042 (the Executive Order) in federal contracts imposing mandatory vaccination and workplace safety protocols for covered federal contractors and their employees as early as October 15, 2021. Issued by the Federal Acquisition Regulatory Council (FAR Council) (the FAR Council Memo), the Civilian Agency Acquisition Council (CAAC) (the CAAC Memo), the Principal Director, Defense Pricing and Contracting for the Department of Defense (DoD) (the DoD Memo), and the General Services Administration’s Senior Procurement Executive (the GSA Memo) (which we will be discussing in a separate posting), the memoranda move quickly to provide all procuring activities the necessary tools to ensure that by October 8, all solicitations and contract subject to the Executive Order adhere to its mandates and the evolving guidance issued by the Safer Federal Workforce Task Force (issued September 24) (Task Force Guidance). For those unfamiliar with the Executive Order and the resulting Task Force Guidance, please feel free to review our prior discussions of those issues here and here.
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Continue Reading The Clauses Implementing Vaccination Mandate for Federal Contractors Are Out—Key Considerations for Contractors

The Federal Acquisition Regulation (FAR) Council has returned from an extended vacation to publish a final rule to align the FAR with similar subcontracting regulations implemented by the Small Business Administration more than a half decade ago. McCarter & English Government Contracts and Global Trade co-leaders Franklin Turner and Alex Major and Senior Associates Cara…