Category Archives: Legislation

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Cloudy Skies Ahead for Providers? CMS’ Release of Medicare Billing Data Combined with Physician Payment Sunshine Act Data May Boost Fraud Litigation

In February 2013, we reported (on our Healthcare Law Blog) that the Centers for Medicare and Medicaid Services (CMS) announced the final rule for the Physician Payments Sunshine Act.  In the interest of providing more transparency for patients, the final rule requires pharmaceutical and medical device manufacturers and group purchasing organizations to report payments or … Continue Reading

What’s New Out There? Highlights from the Federal Register

Amended SDN Designations Under New Sanctions Programs On May 23, the U.S. Department of Treasury, Office of Foreign Assets Control (“OFAC”) published additional identifying information for persons whose property has been blocked for their activities related to the conflict in the Central African Republic.  See 79 Fed. Reg. 29,842 (May 23, 2014).  On May 12, … Continue Reading

What’s New Out There? Highlights from the Federal Register

DoD Issues Final Rule regarding Counterfeit Electronic Parts (79 Fed. Reg. 26092) The Department of Defense issued a final rule on May 6, 2014 that sets forth contractor responsibilities related to the detection and avoidance of counterfeit electronic parts, including the obligation to report counterfeit or suspected counterfeit electronic parts.  For a detailed discussion of … Continue Reading

What’s New Out There? Highlights from the April 2014 Federal Register

This month’s Federal Register Updates include four important changes that will impact the day-to-day activities of Government Contractors and Agencies alike.  The first, a final DFARS rule on Performance-Based Payments, provides detailed guidance and instructions on the use of the Performance-Based Payment analysis tool, which is required to be used by all Contracting Officers contemplating … Continue Reading

What’s New Out There? Highlights from the March 2014 Federal Register

A.  EPA Adopts Final Rule: EPA-Specific Past Performance Regulations (79 Fed. Reg. 15921-24) (3/21/2014) The EPA is deleting EPA-specific past performance regulations in the EPA Acquisition Regulation (EPAAR) because they are no longer necessary to meet the agency’s needs in light of recent updates to the FAR.  See 79 Fed. Reg. 46783 (Aug. 1, 2013).  … Continue Reading

What’s New Out There? Highlights from the February 2014 Federal Register

1. Proposal to Amend FAR to Implement Revised SBA Regulations On February 3, 2014, DoD, GSA, and NASA proposed to amend the FAR, via FAR Case 2012-022, to implement revisions made by the SBA to its regulations implementing section 8(a) of the Small Business Act “to provide additional FAR coverage regarding protesting an 8(a) participant’s … Continue Reading

Government Procurement: November and December 2013 and January 2014 Federal Register Update

1. Final Rule Requiring Accelerated Payments to Small Business Subcontractors. On November 25, 2013, the FAR Councils published a final rule that, inter alia, amended the FAR to require accelerated payments to small business subcontractors in certain circumstances.  The final rule adds a new FAR clause, 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, which must … Continue Reading

Government Procurement: October and November 2013 Federal Register Update

1. Proposed Rule to Amend DFARS Coverage of Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States.  On October 31, 2013, the Department of Defense (“DoD”) proposed to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to amend and clarify certain provisions regarding contractor personnel supporting U.S. Armed Forces deployed outside the United States.  … Continue Reading

Government Procurement: September and October 2013 Federal Register Update

1. Final Rules Regarding the Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors On September 24, 2013, the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) published a final rule revising the implementing regulations of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act … Continue Reading

Details: Highlights from the August & September 2013 Federal Register

1. Repeal of Sunset Dates for Protest Authority Over Certain Task Orders Effective September 3, 2013, FAR 16.505 was amended to eliminate the sunset dates for protests against the issuance of an order under a task-order or delivery-order contract in excess of $10 million by the DoD, NASA and the Coast Guard. Previously, the FAR … Continue Reading

New Laws and Firewalls – Summer 2013 Cyber Security Round-up

By Alexander Major  Over the first half of the year there has been a lot of activity surrounding government efforts to confront growing concern over “Cybersecurity.” This flurry of activity comes in the wake of two years during which lawmakers have been unable to define legislatively what, exactly, “cybersecurity” is, what it means, and how … Continue Reading

DOE Proposes Highly Burdensome Reporting Obligations With Respect To Export Compliance

By John W. Chierichella On September 8, 2008, we posted a commentary on a newly promulgated interim rule relating to “Export-Controlled Items,” that was finalized in 2010 and is now set forth at DFARS Subpart 204.73 and implemented in principal part by the clause set forth at 52.204-7008. Click here. That rule was relatively straightforward, … Continue Reading

Smash & Grab Redux – Congress Seems to Give DCAA Permission But Forgets to Give It Authority

By David Gallacher  Last month we wrote about a provision in the proposed 2013 National Defense Authorization Act (“NDAA”) that would have given the Defense Contract Audit Agency (“DCAA”) statutory authority to demand a company’s internal audit reports in order to audit the efficacy of a company’s internal business systems. Surprisingly, the authorization, as originally … Continue Reading

Smash & Grab – DCAA Poised to Gain Access to Contractor Internal Audit Reports

By David Gallacher  The Defense Contract Audit Agency (“DCAA”) has long sought access to contractors’ internal audit reports in connection with the routine audit of contractors’ business systems. Contractors have, in most cases, successfully resisted requests for such access on the grounds that DCAA has no statutory authority to request such documents. But that may … Continue Reading

Final Rule for IR&D Reports Fails to Address Most Serious Questions

By David S. Gallacher and Kerry O’Neill Last April, we wrote about proposed changes to Department of Defense ("DoD") reporting requirements for independent research and development ("IR&D"), raising concerns about how the proposed change would tie recoverability of IR&D costs to new reporting and disclosure requirements. Recently, Defense Federal Acquisition Regulation Supplement ("DFARS") 231.205-18(c) was … Continue Reading

2011 Year In Review: Export Controls and Promised Reforms

By: David S. Gallacher 2011 was a banner year for U.S. export control laws. The Obama administration has vowed to streamline and reform the bloated U.S. export control system – promising to build "higher walls" around a narrower universe of goods and technologies requiring export licenses. Following is a summary of ten of the key … Continue Reading

“Bah! Humbug!” – 3% Withholding and the Ghost of Christmas Future

By: David S. Gallacher Just in time for the end-of-year push to fund the Government and to "create more jobs," members of Congress and President Obama had a rare moment of consensus when they unanimously(!) repealed an extremely unpopular withholding requirement that has been haunting recipients of federal funds since 2005. The "3% Withholding Repeal … Continue Reading

Task And Delivery Order Protests: Taking Aim At A Moving Target

By Marko W. Kipa The saga began with the passage of the 2008 National Defense Authorization Act. While the Act contained a general prohibition barring bid protests of task and delivery order awards (excluding challenges to scope, period, or maximum value), it granted the GAO exclusive jurisdiction over bid protests of civilian and defense agency … Continue Reading

The GAO Holds It Possesses Jurisdiction Over Bid Protests of Civilian Agency Task and Delivery Order Awards

By Marko W. Kipa Many believed that the Government Accountability Office’s (“GAO’s”) jurisdiction over bid protests of civilian agency task and delivery order awards valued at over $10 million expired on May 27, 2011. This belief was based on the fact that certain broadened jurisdiction over civilian agency task and delivery order protests granted by the … Continue Reading

Making Amends: Countdown To May 27, 2011

By Marko W. Kipa Over the past three years, government contractors have been able to pursue bid protests at the Government Accountability Office (the “GAO”) challenging awards of defense and civilian task and delivery orders valued at over $10 million. This expanded jurisdiction, however, is set to expire on May 27, 2011. Congress appeared to have addressed … Continue Reading

The Times They Are A Changin’ – Independent Research and Development May Not Be So “Independent” Any More

By David S. Gallacher Those familiar with Government contracting know at least a little bit about the elusive and fickle regulatory requirements for Independent Research and Development (“IR&D” or “IRAD”) costs. IR&D is a means by which the U.S. Government supports a Contractor’s independent R&D efforts. By reimbursing a Contractor’s independent R&D costs, the Government long has … Continue Reading

Frankenstein’s Monster: Data Rights Changes Adopted In The National Defense Authorization Act For Fiscal Year 2011

By Louis D. Victorino A great deal of discussion has transpired regarding recent legislation that reportedly could alter significantly the established “follow-the-funds” test used for the allocation of intellectual property rights in data developed under a government contract. The legislation involved is a provision of the National Defense Authorization Act for Fiscal Year 2011 (the “Act”), signed … Continue Reading

Has The Sun Set On GAO’s Civilian Contract Task And Delivery Order Bid Protest Jurisdiction?

By Marko W. Kipa With the passage of the National Defense Authorization Act for Fiscal Year 2008 (the “2008 Act”), Congress expanded the GAO’s jurisdiction to include bid protests in connection with civilian and defense contract task and delivery orders valued at over $10 million. See Section 843 of the 2008 Act, Pub. L. No. 110-181. Congress also … Continue Reading
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