As DOD continues to expand its supply chain cybersecurity demands on federal contractors, McCarter & English Government Contracts and Export Controls co-leaders Alex Major and Franklin Turner provide critical guidance for federal contractors in a two-part Feature Comment for Thomson Reuters’ The Government Contractor. In the comprehensive article they address not only the recent and

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

A little-heralded change to the statutory definition of “commercial item” has now made its way to a proposed FAR rule, which will open up regulatory relief to a whole new class of government contractors – companies, both domestic and foreign, that regularly sell products developed at private expense to friendly foreign governments. With the December 12, 2017, passage of Section 847 of the National Defense Authorization Act of 2018, Pub. L. 115-91 (“2018 NDAA”), the statutory set of definitions for the term “commercial items” was amended. See 41 U.S.C. § 103. More specifically, Section 103(8), addressing “nondevelopmental items,” was broadened as follows:

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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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Alex Major is a contributing author to the Nuix 2018 Black Report: Decoding the Minds of Hackers, a unique report that engages professional hackers, penetration testers, and incident responders to understand the security threat landscape companies face. Alex, a former intelligence officer, focuses his chapter on why companies need to properly select and structure their

The House version of the 2018 National Defense Authorization Act (“NDAA”) (passed July 14, 2017) includes key provisions that would radically change the way the Government purchases certain commercial items, and it may result in the extinction of large parts of the Federal Supply Schedules as we know them. Section 801 of the NDAA promotes Government wide use of online commercial marketplaces (“online marketplaces”) such as Amazon, Staples, and Grainger for the acquisition of certain commercial off-the shelf (“COTS”) items, defined as “commercial products” in the proposed legislation. If enacted, the NDAA would be a revolutionary development in the way the Government buys many of its products, allowing agencies to leapfrog over competitive bidding requirements and numerous mandatory clauses now included in Government contracts for commercial items.

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This article focuses on contractor licenses that grant “Restricted Rights” in “Noncommercial Software” to the federal Government under Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.227-7014.  DFARS 252.227-7014 only applies to “Noncommercial Computer Software,” meaning software that is licensed to or developed for the Government, but that is not also licensed to the public.  In contrast to the commercial world, where software licensors generally set the terms under which they wish to license their products, DFARS 252.227-7014 dictates such terms, and codifies required license grants for software developed for the U.S. Department of Defense (“DoD”).  Under DFARS 252.227-7014, even if a licensor develops Noncommercial Software at private expense, the licensor must at least grant Restricted Rights to the Government — although title and ownership of the software always remain with the contractor licensor.

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