Small Business Subcontracting for Cloud Computing Gets Easier

In response to widespread interest in allowing more small business participation in opportunities involving cloud computing, the Small Business Administration (“SBA”) has decided to exclude cloud computing from the limitation on subcontracting rule calculation, in certain circumstances. Thus, beginning December 30, 2019, small businesses are no longer limited in their ability to subcontract out cloud computing services to larger companies, in connection with performing a Government contract set aside for small businesses, where the small business will perform other services that are the primary purpose of the acquisition. Continue Reading

Let the Seller Beware – NASA’s Proposed Rule Seeks to Limit the Presence of Counterfeit Electronic Parts

On January 7, 2020, the National Aeronautics and Space Administration (“NASA”) published a proposed rule seeking to amend the NASA Federal Regulation Supplement regarding counterfeit electronic parts. The proposed rule would add new language to the NASA regulations, requiring that contractors procure electronic parts directly from manufacturers and select suppliers in an effort to lessen the use of counterfeit electronics on NASA programs. Continue Reading

DoD’s Squeeze of Chinese Telecom Equipment Continues

At the end of 2019, the Department of Defense (“DoD”) took another step to limit the potential cyber risks posed by telecommunications equipment manufactured by Chinese companies (and potentially Russian ones too). We previously have blogged on this topic here, here, here, here, here, and here, noting developments both in terms of general, government-wide regulations through the FAR Council, and those specifically emanating from DoD. On December 31, 2019, DoD issued a Defense Federal Acquisition Regulation Supplement (DFARS) interim rule to further implement parts of the 2018 and 2019 National Defense Authorization Acts (“NDAA”). Continue Reading

Why the Health Care Industry Should Be Concerned About Section 889 of the 2019 National Defense Authorization Act

On August 13, 2018, President Trump signed into law the National Defense Authorization Act (NDAA) of 2019. While the annual NDAAs are tracked, analyzed, and picked apart with great care by the federal contracting community, the health care industry typically pays them little mind. But ignoring the 2019 NDAA would be a big mistake, because tucked within its more than 1,000 sections is one that will have a significant impact on many health care industry players. It’s known as Section 889. Read our thoughts on Section 889’s impact on the Health Care industry here. Continue Reading

United States v. Blaszczak: Second Circuit Ruling Creates Opening for Significant Increase in Insider Trading Prosecutions

The Second Circuit recently took an unexpected plunge into the torrid waters of insider trading law. Following several years of decisions limiting the government’s broad interpretation of what constitutes a personal benefit in order to convict on insider trading charges, the Court has now done what might be considered an about-face. In United States v. Blaszczak, No. 18-2825 (2d Cir. Dec. 30, 2019) (“Blaszczak”), the Court refused to apply any personal benefit test whatsoever to insider trading charges brought under Title 18. As such, Blaszczak may well become powerful precedent for prosecutors seeking to lower the bar for insider trading prosecutions. Continue Reading

The SEC’s 2020 Examination Priorities

On January 7, 2020, the Securities and Exchange Commission (“SEC”) released its 2020 examination priorities, an annual report by the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) meant to apprise the public of the SEC’s activities and enforcement agenda based on potentially high-risk areas for investors and U.S. markets. The issues in this year’s report reflect the agency’s concern that regulations and enforcement keep pace with the ever evolving market dynamics and financial technologies that characterize today’s securities markets. This also is the first OCIE annual report in the last five years articulating large-scale internal staffing concerns, and thus can be seen both as a rare cry for help, and evidence of a disconnect between the SEC and the Federal Government. Continue Reading

Iran’s Imminent Cybersecurity Threat

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

A Few Thoughts on DOJ’s Procurement Collusion Strike Force

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

CISA Releases “Cyber Essentials” to Assist Small Businesses

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

The True Impact of the Chinese Telecom Ban on Government Contractors

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

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