The spread of the COVID-19 virus and the unprecedented steps taken by federal, state and local authorities to contain it by shutting down or significantly altering normal business operations pose great challenges to government contractors in meeting the needs of their universal customer, the U.S. Government.  Work spaces are closed.  Supply chains are disrupted.  Key employees may no longer be available to oversee critical operations – both on and off U.S. Government installations.  Here are some proactive measures that contractors can take now to avoid loss and to maximize the potential of obtaining new business opportunities created by the expected exponential increase in government spending:

Continue Reading COVID-19 Federal Contractor’s Guide – Some Quick Points for Surviving and Thriving in This Unprecedented Environment

In the seminal holiday film A Christmas Story, nine-year-old Ralphie Parker uses his diligently earned Little Orphan Annie Secret Society decoder pin to decrypt the secret message from Annie to her fans, only to express disappointment and confusion when he realizes the “secret code” he decrypted is nothing more than a marketing ploy to sell more Ovaltine. Although neither drinking copious amounts of Ovaltine nor possessing a Little Orphan Annie decoder pin are requirements of a federal contractor’s cybersecurity program, the use of encryption—like that employed by Ovaltine and its plucky propagandist—cannot be avoided. The challenge, of course, is approaching encryption in a manner that avoids the same irritating bewilderment experienced by Ralphie Parker. Modern encryption, while inherently and necessarily enigmatic, need not be overcomplicated, and that’s a good thing, because federal contractors, namely Department of Defense contractors, now face specific standards of encryption necessary to meet and maintain certain federal cybersecurity standards or bear the significant risk commensurate with noncompliance. Whether a contractor falls under the auspices of Federal Acquisition Regulation 52.204-21, Defense FAR Supplement 252.204-7012, or the newly unveiled Cybersecurity Maturity Model Certification (CMMC), contractor use of encryption is poised to be a critical element of compliance for the Federal Government over the next decade. This means that contractors must have a working knowledge of federal encryption standards to understand not only how such standards apply to the storage and handling of data but also whether the contractor can truly comply with those standards or have the wherewithal to understand the type of information technology products they are permitted to provide the Government.

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The Interagency Edison (“iEdison”) system is the principal mechanism for preserving rights to title in Government-funded inventions. Its use is now mandatory per 37 CFR 401.16, and we expect FAR 52.227-11, Patent Rights – Ownership by the Contractor, to see parallel amendments soon. Despite its use by multiple agencies to satisfy the reporting obligations imposed on funding recipients under the Bayh-Dole Act, most agree and recognize that the system is broken…badly broken.

Continue Reading iEdison’s 2020 New Year’s Resolution – Improvement! Time to Submit Your Comments

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Federal contractors can finally look forward to simplified small-business mentor-protege programs, but also must become keenly aware of wide-ranging changes affecting certain 8(a) business development and Native American-owned programs, new recertification requirements for certain multiple award contracts, or MACs, and small-business joint ventures.

Continue Reading SBA’s Proposal Would Help Small Business Teaming – Law360

For several years, we have witnessed the emergence of a statutory and regulatory framework to tighten controls on the export of emerging and critical technology, as well as the review of inward foreign investment into said technology. As was evident in the listing of Huawei and other Chinese technology giants, the United States has demonstrated a willingness to use alternative punitive measures against China. Whether the desired impact of this approach has been achieved is difficult to determine. We have, nevertheless, no reason to believe that the tide will ebb in 2020.

Continue Reading Export Controls and Global Trade: A Forecast and the Year in Review

One of the bedrock principles of federal contracting is the demand for “full and open competition through the use of competitive procedures.”  In order to foster competition and reduce costs, the Competition in Contracting Act was passed into law in 1984 in an effort to enhance competition in procurements and thereby reduce costs, eliminate waste and abuse, and protect taxpayer dollars.  The effort to root out corruption and promote competition continues with the recent announcement by the Department of Justice (DOJ) of the newly formed Procurement Collusion Strike Force (“Strike Force”), with additional details and training materials—and an imposing antitrust violation complaint form—available on its recently launched website.

Continue Reading New DOJ Strike Force Targets Collusion in Federal Contract Awards

There’s an often mistranslated Taoist adage that counsels “A journey of a thousand miles begins with a single step.” So it is presently with the Department of Defense’s (DoD’s) Cybersecurity Maturity Model Certification (CMMC), which continues its cybersecurity journey with the recently released update of standard CMMC .6.

Continue Reading Cybersecurity Maturity Model Certification (CMMC) Version .6: Another Step on the Department of Defense’s Long and Winding Cybersecurity Road

In a rule published and effective October 9, 2019, China’s key manufacturers of video surveillance products have been added to the Bureau of Industry and Security (BIS) Entity List by an interagency End-User Review Committee (ERC) comprised of representatives of the Departments of Commerce State, Defense, Energy and, where appropriate, Treasury. The Entity List (15 CFR, Subchapter C, part 744, Supplement No. 4) identifies entities believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States.

Continue Reading Hikvision, Dahua Technology Among 28 Added to Entity List, Resulting in Broad Impact on Chinese Surveillance, Artificial Intelligence and Facial Recognition Firms

So you want to acquire a government contractor? Makes sense, and you’re not alone. Over the past few years, the federal contracting landscape continues to evolve as a result of mergers and acquisitions (M&A), primarily involving the acquisition of small and midsize contractors by larger entities as a means to quickly expand into new federal markets. This trend is especially prevalent in the information technology (IT) market, where the acquisition of small or midsize IT firms with new capabilities can provide larger firms with shiny new toys to share with their roster of government clients to gain a larger share of the federal IT “pie,” if not create—almost overnight—new IT market leaders in areas such as cloud computing, cybersecurity, software, and predictive intelligence.

Continue Reading Integrating Cybersecurity Into M&A Compliance Reviews: Avoiding Hidden Cyber Risks in the Acquisition of Government Contractors

On August 6, 2014, plaintiff-relator Andrew Scollick filed a complaint in the United States District Court for the District of Columbia against eighteen defendants for multiple violations of the False Claims Act (“FCA”) in connection with an alleged scheme to submit bids and obtain millions of dollars in government construction contracts by fraudulently claiming or obtaining service-disabled veteran-owned small business (“SDVOSB”) status, HUBZone status, or Section 8(a) status, when the bidders did not qualify for the statuses claimed. United States ex. rel. Scollick v. Narula, et al., No. 14-cv-1339 (D.D.C.). Unique in this case were not the claims against the contractors, who were alleged to have falsely certified their status or ownership. Rather, what set this case apart was that Scollick also named as defendants the insurance broker who helped secure the bonding that the contractor defendants needed to bid and obtain the contracts, and the surety that issued bid and performance bonds to the contractor defendants. Scollick alleged that the bonding companies “knew or should have known” that the construction companies were shells acting as fronts for larger, non-veteran-owned entities violating the government’s contracting requirements—and thus the bonding companies should be held equally liable with the contractors for “indirect presentment” and “reverse false claims” under the FCA.

Continue Reading The Sword of Damocles Hangs Over Miller Act Sureties and Brokers: Scollick Case Stayed Sixty Days for Mediation, but Outcome Remains Uncertain