After 15 months of quarantines, restrictions, and mandatory home schooling, summer 2021 is luring with escape and excitement across the country.  We all hope for beach days and reunions with loved ones as we (hopefully) paddle toward normalcy once again. However, before setting up the “out-of-office” auto-replies and heading for the sand and surf, Government contractors interested in the implications of the Biden Administration’s January 25, 2021 Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers (EO) will want to take note of a June 11, 2021 Memorandum from the Office of Management and Budget on Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws (Memorandum). This Memorandum outlines the wave of changes the Made In America Office (MIAO) is poised to make over the summer of 2021 as it begins to implement the mandates of the EO.

Continue Reading Catching Waves: OMB Issues New Implementation Guidance for Biden Administration Buy American Executive Order

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

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?

Akin to the exasperations of the newly minted “homeschool teachers” the pandemic has created, the Biden administration’s recent Executive Order on Improving the Nation’s Cybersecurity (Order) is a mix of sound logic and utter frustration. The lengthy and sweeping Order is resoundingly one of the most comprehensive national cybersecurity overhauls to date and ushers the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) into a forward-leaning position of leadership that has been missing since its inception. In addition to requiring significant improvements to the cybersecurity posture of the Federal Civilian Executive Branch (FCEB) agencies, the Order also prescribes (i) the implementation of cyber incident sharing requirements between the Government and private industry; (ii) the necessary demands of security on software development; and (iii) the inclusion of software bills of materials, operational technology (e.g., industrial machining), and the internet of things in the fabric of cybersecurity regulations. Set against the backdrop of an ambitious timeline that calls for drastic changes before the end of this fiscal year—i.e., September 30, 2021—the Order requires that the Federal government scale administrative mountains at breakneck speed while simultaneously working with the industry and developing new regulations with which contractors will have to comply in short order. Accordingly, while a brief summary of the Order is provided below, the size and magnitude of the Order call for a larger analysis. Accordingly, we have prepared a user-friendly Analysis of the Order that includes considerations for manufacturers and government contractors. Additionally, to better explain the compliance timeline associated with the Order, a listing of the EO Key Dates is provided for convenience.

Continue Reading Enough’s Enough: A New Executive Order Signals Sweeping Changes to Federal Cybersecurity Requirements

In a time of uncertain federal budgets and an increasingly crowded marketplace, contractors of all sizes are on the lookout for ways to enhance their chances of winning federal business opportunities. Step one in this process is, of course, the identification of the government’s needs—which are typically codified in requests for proposals or quotations. Step two (i.e., the “pursuit” phase) involves the preparation of an offer designed to fulfill the government’s requirements. As most government contractors know all too well, this is an often laborious and expensive process that requires painstaking attention to detail. But what happens when there is, in fact, a real devil lurking in those details? What if the RFP or RFQ simply doesn’t make sense? What if the terms are in conflict with one another? What if the government includes requirements that run afoul of a law or regulation? Enter the pre-award protest exorcism.

Continue Reading Recent GAO Decision Demonstrates the Utility of Pre-Award Protests

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 December 21, 2020, the Department of Defense (DoD) Office of the Undersecretary of Defense for Intelligence & Security published a Final Rule codifying the National Industrial Security Program Operating Manual (NISPOM)—currently published as part of DoD Manual 5220.22-M—in Title 34, Part 117 of the Code of Federal Regulations. The Final Rule became effective on February 24, 2021.

Continue Reading DOD Issues Final Rule Codifying The NISPOM

A new administration has moved into the White House, and, as anticipated, President Biden wasted no time in issuing, in the first few days of his presidency, a raft of Executive Orders (EOs) that appear calculated to set the tone of his administration. Notably, many of these executive actions walk back (or attempt to fully erase) some of the signature policies of the Trump Administration. Some of these presidential actions have immediate implications for government contractors, while others represent broad policy statements that, at least in the short term, will have little impact on contractors’ day-to-day operations – but they merit a close watch, particularly the Executive Order titled “Ensuring the Future Is Made in All of America by All of America’s Workers,” discussed in detail here. Contractors should take note of these early developments, as they are likely to evolve into concrete policies that will create new opportunities – or obstacles – for businesses in the federal marketplace in the months and years to come.

Continue Reading The Beginning of the Biden Administration – What Federal Contractors Need to Know

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

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