Cyber incidents involving critical infrastructure pose a serious risk to the US. In March 2024, the Environmental Protection Agency and the National Security Advisor warned state governors about potential attacks on drinking water and wastewater facilities by specific Iran- and China-aligned hackers. The following month (on April 4, 2024), in an attempt to prepare for such attacks and otherwise improve the federal government’s ability to collect and analyze data related to cyber incidents on critical infrastructure, the Cybersecurity and Infrastructure Security Agency (CISA) issued a proposed rule to implement cyber incident reporting requirements under the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA). Enacted in an omnibus appropriation, CIRCIA directed CISA to issue rulemaking requiring the reporting of cyber incidents or the payment of ransoms in response to cyberattacks affecting critical infrastructure.  Continue Reading CISA’s CIRCIA Proposed Rule: Another Player Enters the Reporting Regime

What do you think is going to be scarier—artificial intelligence (AI) or the government’s effort to regulate AI? On October 30, 2023, the White House issued Executive Order (E.O.) 14410, Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. As the federal government’s latest foray into harnessing AI, this E.O.—like those before it, generally—recognizes that AI offers extraordinary potential and promise, provided that it is harnessed responsibly to prevent the exacerbation of societal harms. Since E.O. 14410, there has been a flurry of activity in the federal government, including guidance and policies providing an indication of how agencies can/should/will harness AI to support agency objectives. While we are far from a situation similar to Skynet from the Terminator franchise or HAL 9000 from 2001: A Space Odyssey, the government’s accelerated activity to reap AI’s potential benefits far outpaces the provision of actionable guidance so contractors can understand and adapt to what will be required in offering AI products and services to the government. So let’s open the pod bay doors and explore…Continue Reading Executive Order 14410: An Artificial Intelligence Odyssey

On October 25, 2023, the Department of Defense (DoD) published a Proposed Rule amending the Department of Defense Federal Acquisition Regulation Supplement (DFARS) and permanently authorizing the DoD Mentor-Protégé Program (DoD MP Program). In addition, the Proposed Rule makes several changes to the program—the most prominent of which include (a) lowering barriers to entry and (b) adding additional benefits for prospective mentors and protégés. Before we dive in to the Proposed Rule, a brief history of the DoD MP Program is in order.Continue Reading DoD Mentor-Protégé Program Solidified under Proposed Rule

Most experienced contractors have a healthy fear of the various types of fraud claims: False Claims Act, federal and state wire and mail fraud, common law fraud, etc. They know that enforcement authorities are always looking for ways to swing the hammer against a contractor they suspect is fleecing the government. Fraud claims arise when a victim (sometimes the government) contends that the defendant lied about the goods or services offered in order to induce the victim to voluntarily transfer property to the defendant in an exchange. Where the victim parts with much for nothing in return, the fraud analysis is easy—the defendant’s intent to wrongfully steal property or to inflict a pecuniary loss is obvious. But in cases where the victim receives from the defendant goods or services of real value, whether the defendant intended to harm the victim or deprive them of their property becomes a more difficult question.Continue Reading No Harm, No Fraud: The Supreme Court Narrows the Application of the Wire Fraud Statute and Unanimously Overrules the “Right to Control” Theory

In 2006, the documentary An Inconvenient Truth chronicled former Vice President Al Gore’s efforts to educate the public on the consequences of climate change. In the sixteen years since the Academy Award-winning film was released, public interest in the impact that greenhouse gas (GHG) emissions have had, are having, and will have on our planet has increased exponentially. Most recently, at the 27th U.N. Climate Conference (COP27), countries from around the globe came together to discuss the implementation of battle plans to combat climate change. One such plan, which was discussed at COP 27 by President Biden, is a new Proposed Rule that would require “significant” and “major” federal contractors to disclose their GHG emissions and climate-related financial risk as well as set science-based targets to reduce their GHG emissions. If and when the Proposed Rule is finalized, it will have seismic implications for contractors, in that it ties contractor responsibility (i.e., a contractor’s ability to receive federal awards) to compliance with these requirements.
Continue Reading An Inconvenient Requirement: New Proposed Rule Would Require Federal Contractors to Disclose Greenhouse Gas Emissions

Last year, President Biden signed the Juneteenth National Independence Day Act, making June 19, the celebration of the end of slavery, a federal holiday. The second Juneteenth National Independence Day is fast approaching. This year, Juneteenth falls on a Sunday and will be observed on Monday, June 20, 2022.

This means a holiday for federal workers, but what does this mean for an employer with federal contracts or subcontracts? The following provides a brief overview of when Juneteenth is a paid holiday for a federal contractor’s employees under contracts or subcontracts subject to (i) the Service Contract Act (SCA), (ii) the Davis Bacon Act’s (DBA) labor standards provisions, or (iii) another contract provision governing paid holidays.Continue Reading Juneteenth Is Fast Approaching: Time to Check and Confirm Your Contractual Fringe Benefit Obligations for Paid Holidays

This article appeared in Law360

The Safer Federal Workforce Task Force issued on Sept. 24 its guidance for federal contractors and subcontractors[[1] as required by President Joe Biden’s Sept. 9 executive order on ensuring adequate COVID-19 safety protocols for federal contractors.[2] The guidance was approved by the Office of Management and Budget on the same day.[3]

The guidance contains three key provisions:

  • Mandatory vaccination of covered contractor employees who are not legally entitled to accommodation;
  • Masking and physical distancing while in covered contractor workplaces in accordance with Centers for Disease Control and Prevention guidelines; and
  • The designation by each covered contractor of a point person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.[4]

Continue Reading Broad Categories of Employees of Federal Contractors Now Required to Be Fully Vaccinated by December 8–Law360

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

Continue Reading What’s Next for Federal Contractors and Mandatory COVID-19 Safety Protocols

As you may recall, Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA required the US Department of Defense (DoD) to draft regulations to establish comprehensive post-award debriefing rights for disappointed offerors involved in applicable DoD procurements. On March 22, 2018, the DoD responded by issuing a Class Deviation that implemented certain FY 2018 NDAA requirements—i.e., those requirements affording disappointed offerors the opportunity to submit additional written questions to the cognizant DoD agency within two business days of its agency debriefing conducted in accordance with FAR 15.506(d). In such circumstances, the cognizant DoD agency must provide written responses to the questions within five business days after receipt of the questions. Moreover, if a disappointed offeror chooses to submit timely post-debriefing questions, the debriefing does not conclude—and thus the disappointed offeror’s GAO protest “clock” does not begin to run—until the agency provides its written response. On May 20, 2021, the DoD published a Proposed Rule to amend the Defense Federal Acquisition Regulation Supplement to (1) codify the March 2018 Class Deviation and (2) implement the additional post-award debriefing requirements from the FY 2018 NDAA.
Continue Reading DoD Issues Proposed Rule on Enhanced Post-Award Debriefing Rights