In response to the killing of Major General Qassim Suleimani, the government of Iran and its supreme leader, Ayatollah Ali Khamenei, have declared the country’s intention to strike back at the United States. According to reports, their desire is to respond proportionally, but not start a war, and they are contemplating multiple options, any subset of which they may implement. Almost certainly, these options include cyberattacks. Continue Reading
This month, and with great fanfare, the U.S. Department of Justice (DOJ) announced its creation of a Procurement Collusion Strike Force. We know what you’re thinking, and no – this Strike Force will not be starring in the next Avengers movie. Rather, DOJ created the Strike Force to combat antitrust crimes in Federal procurement.
The concept of a Strike Force is not novel. In October 2006, DOJ announced the formation of a then-new National Procurement Fraud Task Force within its Criminal Division, an effort that claimed credit for a large number of investigations and prosecutions in the ensuing years. The Central District of California established its own Procurement Fraud Task Force in 1991, focusing on alleged fraud in the defense industry. And there have been others. The idea behind all of them is to marshal federal enforcement resources from various agencies to focus on a single problem. In this case, the perceived problem is collusion among government contractors in violation of U.S. antitrust and procurement laws.
This article sets out our thoughts on the sort of contractor activities that could create a perception of collusion, and offers a few concrete actions you can take to make yourself less of a target for the new Strike Force (and the opportunistic plaintiffs’ lawyers that will follow closely behind). Continue Reading
On November 6, 2019, the Department of Homeland Security (“DHS”), Cybersecurity & Infrastructure Security Agency (“CISA”) released its Cyber Essentials guide. Consistent with the NIST Cybersecurity Framework, these Cyber Essentials provide “a starting point to cyber readiness,” and are specifically aimed at small businesses and local government agencies that may have fewer resources to dedicate to cybersecurity. Continue Reading
As you probably know, we have been following very closely developments relating to Section 889 of the 2019 National Defense Authorization Act (NDAA), which prohibits executive agencies from purchasing restricted products and services from certain Chinese telecommunications companies (including Huawei and ZTE) and also from working with contractors that use such products.
Jonathan Aronie was one of the featured panelists at the well-attended General Services Administration (GSA) Section 889 industry event on November 6, 2019, during which a lively conversation ensued regarding the likely impact of the provisions on government contractors. While contractors already are dealing with Part A of the rule, which prohibits them from selling covered products and services to the government, Part B will go into effect in August 2020 and contains a much broader prohibition relating to the use of covered products and services – even if unrelated to federal business.
We prepared a set of Q&As based on our ongoing focus on 889 and our experience at the industry event that we hope you will find helpful as we continue to monitor new developments in Section 889’s implementation. Continue Reading
Trade Agreements Act compliance changed fundamentally three years ago. Or, so we thought on December 7, 2016, when the U.S. Court of International Trade (“CIT”), the appellate body for country of origin determinations issued by the U.S. Customs and Border Patrol (“CBP”), for the first time analyzed the meaning of “substantial transformation” under the Trade Agreements Act.(“TAA”).[i] To celebrate this third anniversary, we reviewed the CBP decisions issued over the last three years: (1) to see if we were correct, (2) to determine exactly how the CIT decision fundamentally changed the substantial transformation analysis, and (3) to figure out how companies can best comply with the TAA after this landmark decision. Continue Reading
On October 9, 2019, the President issued two executive orders that require agencies to formally provide official guidance before enforcing any new jurisdiction or legal standards. In other words, agencies cannot take novel legal positions in civil enforcement actions or adjudications without first formally notifying the public. Building on the 2017 Sessions Memorandum and 2018 Brand Memorandum, discussed previously, the Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administration Enforcement and Adjudication, and the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents, are the Administration’s latest steps in requiring agencies to clearly and officially provide legal guidance and standards before holding regulated parties accountable. Continue Reading
To gain insight into where the Securities and Exchange Commission (“SEC”) and Commodity Futures Trading Commission (“CFTC”) have been focusing their oversight and what their priorities will be in 2020, look no further than their recent words and deeds. A common thread running through the recent public statements and enforcement activity of both agencies is a commitment to maximizing the resources at their disposal to expedite resolutions, whether by leveraging technology, deploying multi-pronged approaches, engaging in industry outreach, or coordinating with fellow regulators. Continue Reading
U.S. regulators, in particular the Commodity Futures Trading Commission (“CFTC”), are intently pursuing market manipulation enforcement. The September 30 end of the 2019 fiscal year brought with it a flurry of press releases from four different agencies announcing settlements of spoofing-related enforcement actions against trading firms, banks, interdealer brokers, and traders. Continue Reading
On September 9, 2019, the U.S. General Services Administration (“GSA”) announced it would be issuing a mass modification (expected sometime this month) requiring all new and existing GSA Multiple Award Schedule (“MAS”) contracts include two new clauses. The new clauses come in response to Section 889 of the FY2019 National Defense Authorization Act (“NDAA”), and recently implemented FAR provisions, which impose prohibitions relating to the procurement of certain Chinese telecommunications equipment and services (which we have previously discussed here and here). The two clauses to be added to all MAS contracts are:
- FAR 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019)
- GSAR 552.204-70, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019)
The Department of Veterans Affairs (VA) has resurrected its search for prime vendors under the Medical Surgical Prime Vendor (MSPV) 2.0 Program, re-issuing a formal solicitation on September 27, 2019. The VA canceled its original solicitation without warning on August 15, 2019. Continue Reading