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Mr. Turner is a Partner and Co-Leader of the Government Contracts & Export Controls Practice Group. He is an innovative business lawyer with significant experience resolving complex government contracts issues for a broad array of companies – ranging from multinational, multibillion-dollar Fortune 500 corporations in the aerospace, defense, technology, health care and industrial supply sectors to small business intelligence and security services providers.

DoD’s recent efforts to address cybersecurity have caused confusion and chaos for Government contractors. As we all know, cybersecurity is an issue that is impossible to ignore, and the sobering reality is that compliance with federal cybersecurity requirements is critical to avoiding catastrophic liability. Recently, McCarter & English Government Contracts and Export Controls co-leaders Alex

Cough…cough…ahem…cough… Any contractor who has had the misfortune of dealing with the Defense Contract Audit Agency (DCAA) likely knows all too well that the agency is the Will Rogers of costs – it never met a cost it didn’t question.  Indeed, DCAA auditors typically question costs with reckless abandon and based often on a patent misreading of applicable regulations.  The net effect, of course, is that contractors have to expend significant time and money trying to explain to boards and courts why DCAA’s auditors are…uh…incorrect as a matter of fact and law.  A recent Memorandum for Regional Directors (MRD) provides some transparency into why this sort of thing happens with unfortunate regularity. Issued on May 14, 2019, the MRD (No. 19-PAC-002(R)), corrects…er…“revises” internal guidance issued in 2014 and 2015 relating to the identification of expressly unallowable costs.  The newly issued memo sets out DCAA’s current stance on identifying expressly unallowable costs under the cost principles codified at Federal Acquisition Regulation (FAR) Part 31 and Defense Federal Acquisition Regulation Supplement (DFARS) Part 231.  This MRD – like all MRDs – is intended to be used as a tool by well-meaning (but often overzealous) auditors when reviewing a contractor’s compliance with federal cost principles.  Contractors should, thus, pay careful attention to this MRD in order to be prepared for questions that may arise during DCAA-led frolics and detours.

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On May 22nd, Practice Group Co-Leaders Franklin Turner and Alexander Major delivered a presentation on Effectively Prosecuting Contract Claims Against the Government to attendees at the annual Native Hawaiian Organizations Association Business Summit in Honolulu, Hawaii. After the presentation, Franklin and Alex also hosted a legal Q&A session for contractors of all sizes.

On Dec. 4, 2018, the Federal Acquisition Regulatory Council finally released a proposed rule to implement changes to certain small business subcontracting regulations required by the 2013 National Defense Authorization Act (NDAA). 83 Fed. Reg. 62540 (Dec. 4, 2018). This is a welcome, if not long-overdue sign of progress. Over the last half-decade since the

Here we are again. Large swaths of the federal government have been closed since December 22 because Congress and the president cannot agree on legislation to fund the government. Nearly a million federal employees are not receiving their paychecks. Even larger numbers of government contractors are – as is often the case – left squarely at the bottom of the hill, dodging the boulders of political mismanagement that are raining down in a landslide of “stop-work” orders. For example, as has been reported, the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) took affirmative steps to publicize and issue a “blanket” stop-work order on December 26 – the day after Christmas – giving many affected contractors a post-holiday cocktail of uncertainty and dread. Other agencies have followed suit, with the Departments of Justice, Agriculture, Commerce, Housing and Urban Development, Interior, State, Transportation, and Treasury issuing such orders over the past few weeks.

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The Demon: What an excellent day for an exorcism.
Father Karras: You would like that?
The Demon: Intensely.

Honestly, it was challenging finding an all-audiences quote from William Peter Blatty’s “The Exorcist,” but we believe that this quote is exactly what federal contractors need to know. Today is indeed an excellent day for an information system exorcism and, unlike Father Karras, federal contractors know the name of that which they must purge: Kaspersky Lab.


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At this point, even casual observers of the news likely have heard of Moscow-based Kaspersky Lab. In the wake of reported connections to the Kremlin and Russian intelligence entities, the cybersecurity company was famously banned as a source of supply to the United States Government by Section 1634 of the 2018 National Defense Authorization Act (“NDAA”). Effective October 1, 2018, the NDAA forbids every “department, agency, organization, or other element of the Federal Government” from using “any hardware, software, or services developed or provided, in whole or in part” by (i) Kaspersky and any corporate successors, (ii) any entities controlled by or under common control with Kaspersky and (iii) any entity in which Kaspersky has majority ownership.

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As most contractors know all too well, doing business with the Government can be quite frustrating. One of the most – if not the most – prominent sources of that frustration is that the Government often operates with a callous disregard for the laws and regulations that are supposed to dictate the course of play under the contracts to which it is a party. With its December 28, 2017 decision in Flour Federal Solutions, LLC, ASBCA No. 61431-983, the Armed Services Board of Contract Appeals (“ASBCA” or “Board”) cast a searing spotlight on the Government’s dilatory conduct in the context of repeatedly failing to respond to a contractor’s claim. The facts are troubling:

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As the potential for a Government shutdown gets closer to reality with each passing minute, United States Government contractors and subcontractors may soon find themselves in a confusing position as to what actions they should take in light of their existing contract obligations. In an effort to resolve that confusion, the Department of Defense has released guidance to be used by its elements and contracts in the event of a Government shutdown tonight. While directly applicable to Defense activities and constituent contracts, the guidance may assist other non-Defense contractors in addressing some of their questions or concerns.

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If your company sells products or services to the U.S. Government, there’s a substantial likelihood that you’ve read or heard the acronym “NIST” in connection with various cybersecurity related obligations that the Government is imposing on contractors with a seemingly unceasing vengeance. NIST refers to the National Institute of Standards and Technology, which is a