In Van Buren v. United States, No. 19-783 (U.S. June 3, 2021), the United States Supreme Court issued an opinion drastically limiting the application of the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030 et seq.), holding that the “exceeds authorized access” clause of the Act applies only to those who obtain information from particular areas in the computer—such as files, folders, or databases—to which the individual is not authorized to access under any circumstances. However, the Supreme Court excluded application of the clause to individuals who misuse their access to obtain information otherwise available to them for an unauthorized purpose.
Continue Reading Supreme Court Resolves Circuit Split Over CFAA

The U.S. Department of Veterans Affairs (“VA”) Medical Surgical Prime Vendor (“MSPV”) 2.0 Program (discussed previously here and here) has yet to make it off the ground, but in March 2021 the VA announced plans to eliminate the program by September 2023 and instead purchase from the Defense Logistics Agency’s (“DLA”) separate MSPV catalog. The VA and DLA MSPV programs are how the VA and DLA (separately) purchase most of their medical, surgical, and laboratory equipment for care centers across the country (and abroad, in the case of DLA). The VA and DLA have been exploring the possibility of consolidation since at least January 2019, but many vendors relied on the VA’s representations that it would not make any decisions on potential consolidation until at least 2025. So when the VA informed stakeholders of its new September 2023 target, Medline Industries, Inc. (“Medline”), one of the prime vendor awardees under the VA’s MSPV 2.0 Program, responded by filing a bid protest at the U.S. Court of Federal Claims. On May 28, 2021, the VA and DLA decided to take corrective action, asking the Court for six months to re-evaluate the issues raised by the protest. It seems that the government did not have all of its ducks in a row prior to announcing the targeted transition.
Continue Reading Ducks (Not) in a Row – VA Agrees to Take Corrective Action in Transitioning MSPV 2.0 Requirements to DLA

The National Institute of Standards and Technology (“NIST”) is seeking comments on its draft NIST SP 800-161 Rev. 1, “Cyber Supply Chain Risk Management Practices for Systems and Organizations,” published on April 29, 2021. The public comment period currently is open and concludes on June 14, 2021. NIST anticipates releasing a second draft in September 2021, with a final version anticipated to be released by April 2022.
Continue Reading Seeking HoNIST Opinions – NIST Invites Comments on Major Revision to Cyber Supply Chain Risk Management Practices for Systems and Organizations (SP 800-161) and Provides Further Software Supply Chain Guidance

On May 12, 2021, the Biden Administration issued its much anticipated “Executive Order on Improving the Nation’s Cybersecurity.” Below are provisions we believe will be of most interest to contractors, as well as any company that provides information technology (“IT”) and operational technology (“OT”) services, cloud computing, software, or internet of things (“IoT”) technology, as the new regulations and standards called for in the Order are likely to have an impact beyond government contractors.
Continue Reading Biden’s Cybersecurity Executive Order

The Biden Administration has taken (at least temporarily) the teeth out of a Trump-era Executive Order that directed the government to “Buy American” for essential drugs and medical devices. President
Continue Reading “Buy American” Update: Essential Medicines May Continue to Come From Abroad (For Now)

On February 24, 2021, President Biden signed Executive Order 14017, “Executive Order on America’s Supply Chains,” requiring a review of global supply chains that support key U.S. industries in an attempt to improve supply chain security for the U.S. government and U.S. companies. The new Executive Order appears to be an initial step focused on information gathering. Comprehensive reforms and supply chain strategies are likely to follow once the White House has collected key information.
Continue Reading Finding the Weak Links – President Biden Executive Order Demands Review of Critical U.S. Supply Chains

The United States is taking increasingly aggressive actions to prohibit imports from China that may have been produced by forced labor. According to the U.S. Department of Labor, China has
Continue Reading Forced Labor and Supply Chains: A Complete Ban on Goods from Xinjiang or Additional WROs on the Horizon?

The Office of New York State Attorney General Letitia James (“NYAG”) has filed a lawsuit to shut down technology company Coinseed.  The state has accused the firm of selling unregistered securities in the form of digital tokens and operating as an unregistered broker-dealer while making material misrepresentations about the company, its management team, and fees charged to investors in connection with cryptocurrency trades.
Continue Reading New York Attorney General Sues to Shutter Cryptocurrency Trading Firm Coinseed

With a new presidential administration promising vigorous antitrust enforcement, and a new Democratic majority in Congress seeking to make drastic changes to U.S. antitrust laws, the technology and healthcare industries have found themselves the main targets of increased antitrust scrutiny.  Though companies engaging in government contracting, particularly in the aerospace and defense industries, already have had to deal with a range of antitrust issues – for example, the Department of Justice, Antitrust Division (the “DOJ”) launched the Procurement Collusion Strike Force (“PCSF”) in 2019 (discussed in more detail here), which focused on “deterring, detecting, investigating and prosecuting antitrust crimes … in government procurement, grant and program funding” – they may find themselves subject to increased antitrust enforcement in 2021.  In fact, on February 23, 2021 PCSF Director Daniel Glad confirmed he is “focus[ed] on three things in 2021: expanding our platform with PCSF building out our data analytics program; and bringing investigations to the recommendation/disposition stage.”
Continue Reading How a New Era in Antitrust Enforcement May Impact Government Contractors