On January 4, 2021, the National Institute of Standards and Technology (NIST) published proposed rules for comment changing regulations promulgated under the Bayh-Dole Act (35 U.S.C. §§ 200-204), which allow businesses and nonprofit institutions, in most circumstances, to take title to inventions made under federally funded projects (subject inventions) and to freely commercialize items, and methods used to produce items, embodying subject inventions.

Continue Reading NIST on Track to Clarify Bayh-Dole to Ensure High Prices Cannot Be Used as Grounds for Exercising March-in Rights – Or Is It?

In the months since President Biden took office, legislators have tried—and thus far failed—to pass legislation raising the federal minimum wage to $15 per hour. While the debate rages on, the Biden-Harris administration has taken executive action to ensure that some workers receive a higher wage for work under federal contracts. On April 27, 2021, President Biden issued the Executive Order on Increasing the Minimum Wage for Federal Contractors, which will have a (relatively) short-term impact on thousands of contractors and their employees. The Executive Order aims to “promote economy and efficiency in procurement by contracting with sources that adequately compensate their workers.” It would increase the minimum wage paid by federal contractors from $10.95 per hour to $15 per hour. The increased minimum wage will begin appearing in solicitations and contracts, and thereby subcontracts, in early 2022, and contractors should begin preparing now to meet the increased minimum wage requirements.

Continue Reading Raising the Wage: Biden-Harris Administration Dramatically Increases Minimum Wage for Federal Government Contractors

On January 25, 2021, President Biden issued a sweeping Executive Order titled “Ensuring the Future Is Made in All of America by All of America’s Workers” (Order), which is intended to be the first step toward fulfilling his campaign promise to commit to American businesses by strengthening domestic preference rules in government procurement. The Order states the administration’s policy that the US government should “use terms and conditions of Federal financial assistance awards and Federal procurements to maximize the use of goods, products, and materials produced in, and services offered in, the United States.” While this is not a novel policy objective—indeed, the Trump administration articulated similar goals—the Order introduces certain dramatic steps in furtherance of that objective that may ultimately have significant implications for contractors.

Continue Reading Big Changes to Buy American—Biden Issues Broad Executive Order on the Future of Domestic Purchasing in Federal Procurement

The Department of Defense (DoD) has finalized regulations prohibiting the use of telecommunications equipment or services from Chinese entities or from entities that are owned or controlled by either the People’s Republic of China or the Russian Federation. The Final Rule, which went into effect on Friday, January 15, 2021, prohibits the DoD from buying or using banned telecommunications equipment and services that are a “substantial or essential component of any system” or that constitute a “critical technology.”

Continue Reading Changes to DoD Regulations Banning Chinese Telecommunications Equipment and Services Offer Potential Opportunities for Contractors

On the eve of the inauguration of President Biden, a lingering Trump-era policy finally made its way into the Federal Acquisition Regulation (FAR). On January 19, 2021, the FAR Council issued a final rule implementing changes first revealed in Executive Order 13881 (the E.O.), Maximizing Use of American-Made Goods, Products, and Materials (84 FR 34257, July 18, 2019). As we discussed in an earlier post on this topic, the E.O. mandated significant modifications to FAR clauses implementing the Buy American statute by (1) substantially increasing domestic content requirements and (2) increasing the price preferences for domestic products. On September 14, 2020, the FAR Council issued a proposed rule designed to implement the requirements of the E.O. (85 FR 56558, Sept. 14, 2020). Our post on that development noted that, while the proposed rule incorporated the overarching objectives of the E.O., it also significantly expanded on the E.O. by reintroducing the domestic content test for commercially available off-the-shelf (COTS) items made wholly or predominantly of iron or steel, or a combination of both (with the exception of fasteners).

Continue Reading FAR Council Issues Final Rule to Implement Trump Executive Order on Significant Buy American Changes

As has been widely reported, the United States Federal Bureau of Investigation is warning of mass protests and potential violence accompanying the inauguration of President-Elect Joe Biden on January 20, 2021. However, unlike the tragic events of January 6, 2021, at the U.S. Capitol, this warning is being directed to the capitols of all fifty states in addition to numerous assets located throughout the National Capitol Region. In light of these developments, federal contractors who find their operations close to these seats of power may have concerns as to whether to stay open or close their offices and keep employees away. Accordingly, we provide a timely reminder of key considerations that contractors should take into account when balancing the practical reality of safety concerns against the legal obligations of contractual compliance.

Continue Reading Office Closures and Limited Access: Federal Contractor Considerations When Weathering Potential Political Unrest

Halloween is coming up and, right on cue, the FAR Council has released a proposed rule that has potentially frightening implications for contractors. Last year, on July 15, 2019, the president signed Executive Order 13881 (the E.O.), Maximizing Use of American-Made Goods, Products, and Materials (84 FR 34257, July 18, 2019). As we noted in our previous post on this topic, the E.O. mandated significant changes to Federal Acquisition Regulation (FAR) clauses implementing the Buy American statute by substantially increasing both domestic content requirements and price preferences for domestic products. As we also pointed out, the E.O. contained several ambiguities as to how the desired changes would be implemented. At long last, we have (proposed) answers. On September 14, 2020, the FAR Council issued a proposed rule designed to implement the requirements of the E.O. (85 FR 56558, Sept. 14, 2020). While this proposed rule incorporates the overarching objectives of the E.O., it also adds a fairly unsettling spin in that it expands on the E.O.’s mandate by reintroducing the domestic content test for commercially available off-the-shelf (COTS) items as it pertains to iron and steel products.

Continue Reading The FAR Council Issues Proposed Rule to Implement Executive Order on Significant Buy American Changes

Like the hits produced by DJ Khaled, the FAR Council offers “another one.” As covered extensively in this blog, federal contractors have been—or should have been (you have been working toward compliance, haven’t you?)—spending the closing days of summer ensuring compliance with the July 14, 2020 Interim Rule implementing Section 889(a)(1)(B) (“Section B”) of the National Defense Authorization Act for fiscal year 2019.  Section B prohibits the government from entering into a contract with an entity that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, and requires, among other affirmative obligations, for contractors to represent—after conducting a “reasonable inquiry”—that they do/do not use covered telecommunications equipment or services in their respective business operations. In light of the Interim Rule’s broad scope and mandatory accounting of a contractor’s operations, Section B’s compliance mandate presents another significant regulatory burden for contractors to shoulder. But contractors should fear not, because the FAR Council has heard their plaintive wails and responded on August 27, 2020, with a Second Interim Rule implementing new requirements for Section B compliance.

Continue Reading The FAR Council’s Second Interim Rule Implementing NDAA Section 889(a)(1)(B): And the Hits Keep Coming!

When last we left the Federal Government, agency buyers were staring down the Interim Rule prohibiting them from contracting with entities that use “covered telecommunications equipment” under Section 889(a)(1)(B) (“Section B”) of the National Defense Authorization Act for Fiscal Year 2019 after August 13, 2020. But then August 13 came and went. Did federal agencies do all they needed to follow the requirement? Did modifications go out to industry yet? Were amendments made? Was FAR 52.204-24 (2019) appropriately corrected to FAR 52.204-24 (2020)? What of 52.204-25 or 52.204-26? Can federal agencies act in time?

Continue Reading The Perils of Section 889 Part B Execution: The DoD Waiver

Like the sailors of old, the government contracting community ventures forth knowing full well that danger lies ahead – although fortunately not in the form of a kraken, leviathan, or other mythical sea monster.  Rather, these perils and risks are embedded in sweeping new regulations that, like an unseen reef, will be arriving and taking effect all too quickly.  On July 14, 2020, the FAR Council published a long-awaited (or perhaps long-dreaded) Interim Rule implementing Section 889(a)(1)(B) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Section B).  Effective August 13, 2020, Section B prohibits executive agencies from “entering into, or extending or renewing, a contract with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.”  Unlike its counterpart, Section 889(a)(1)(A) of the NDAA for FY 2019 (Section A), which prohibits agencies from “procuring or obtaining equipment or services that use covered telecommunications equipment or services as a substantial or essential component or critical technology,” the restrictions of Section B go far beyond the immediate contract between the contractor and the government.  Instead, Section B directs contractors to discontinue any and all use of covered telecommunications equipment or services.  Even accounting for the choppy seas caused by the ongoing pandemic, the exceedingly broad scope of Section B promises sharp, jagged, and uncharted hazards to contractors attempting to implement compliant policies and procedures.

Continue Reading Risks, Reefs, and Wrecks: Charting a Course Through the Perils of Covered Telecommunications Equipment and Services