The U.S. antiboycott laws and regulations have been around since the era of disco. In stark contrast to fast-moving sanctions and export controls, we rarely see updates to the antiboycott regulations or enforcement strategies. Last October, however, the Department of Commerce, Bureau of Industry and Security (BIS) announced enhancements to its antiboycott enforcement strategy. As part of its implementation of this updated enforcement strategy, BIS has both expanded the scope of required antiboycott reports and flagged antiboycott compliance specifically for government contractors. These moves demonstrate how BIS plans to focus its enforcement efforts on Federal contractors.…

Continue Reading Antiboycott Update for Government Contractors and More

On August 23, 2023, the White House’s Office of Management and Budget (“OMB”) issued its notification of final guidance implementing Title IX of the Infrastructure Investment and Jobs Act (“IIJA”) – the Build America, Buy America (“BABA”) Act. The Guidance amends Title 2 of the Code of Federal Regulations, by adding a new Part 184 and a new provision to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 C.F.R. Part 200 (the “Uniform Guidance”). The publication provides key clarifications arising from industry input after releasing the Proposed Rule back in February (and discussed previously here). These clarifications proffer what is perhaps the most comprehensive set of guidance of which we are aware in the world of domestic content preferences and country of origin requirements, and borrow significantly from current regimes (e.g., the Buy American Act (“BAA”)). Because we already covered the primary requirements of the OMB’s proposed Guidance, and the Final Rule does not deviate significantly from the original guidance, we focus instead on our top 10 takeaways and lingering questions for compliance.…

Continue Reading Top 10 Takeaways from OMB’s “Build America, Buy America” Guidance for Infrastructure Projects

In fiscal year 2022 alone, the Federal Government is estimated to have spent over $1 trillion in grant and assistance programs – a little less than double the Federal Government’s estimated procurement budget for the same year. This spending reflects a trend in recent years towards making more Federal dollars available for more assistance programs. The American Rescue Plan Act, the Infrastructure Investment and Jobs Act, and even the CHIPS Act (to name a few), have created significant financial incentives for largely commercial entities to partner for the first time with the Federal Government. What marks a shift in policy are the primary partners the Federal Government is targeting for these funding opportunities: for-profit, commercial companies for providing broadband infrastructure or developing semiconductors domestically. These programs are geared towards incentivizing non-traditional grant recipients to take a bite at this ever-growing apple. From a business perspective, the trillions of dollars ripe for the taking seem too good an opportunity to pass up – but as we know from our experience in the procurement sector, doing business with the Federal Government is a different beast entirely from the commercial marketplace.…

Continue Reading Hot off the Presses: Sheppard Mullin Publishes its “Federal Grants Survival Guide” for Commercial, For-Profit Companies

The origination of Other Transaction Agreements (OTAs) traces back to the October 1957 launch of Sputnik I by the Soviet Union and the subsequent Space Race. Congress created the National Aeronautics and Space Administration (“NASA”) to quickly design and build new space technology. Following the creation of NASA, Congress granted the agency broad authority to “enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary” to carry out its mission. National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, Section 203(5).…

Continue Reading Challenging Other Transaction Agreements – Navigating the Jurisdictional Highway

The end of the Fiscal Year is upon us, which typically coincides with a flurry of procurement activity and then a wave of bid protests. As most of you know, there are three primary fora for bid protests: procuring agencies, the Government Accountability Office (GAO), and the Court of Federal Claims (COFC). Although the COFC has relatively lenient timeliness rules, agencies and GAO have short, strict, and fairly draconian timeliness rules for filing protests. So as the protest season approaches, we thought it was a good time to refresh everyone on the rules so you are not disappointed to find that you are too late to file your protest.…

Continue Reading Bid Protest High Season Is Coming – A Reminder About the Need for Fast Decisions

In recent weeks, there has been an uptick in news of cyber-related False Claims Act (“FCA”) activity. For example, on September 1, 2023, the court unsealed a qui tam lawsuit against Penn State University relating to allegations of non-compliance with Department of Defense (“DoD”) cybersecurity obligations. Separately, on September 5, 2023, the Department of Justice (“DOJ”) announced a multi-million dollar FCA settlement with Verizon under its Civil-Cyber Fraud Initiative (which focuses on leveraging the FCA to pursue cybersecurity related fraud by government contractors and grant recipients, as we previously discussed here). These and other cases suggest—as many had been speculating—that the number of enforcement actions and publicity associated with previously-sealed qui tam cases will continue to increase. They also signal that contractors and universities should brace for additional scrutiny and potential whistleblower claims in this area.…

Continue Reading Recent Cyber-Related False Claims Act Activity Signals Contractors and Universities Should Examine Their Cybersecurity Practices and Brace for an Uptick in Enforcement

On July 18, 2023, the Biden Administration announced the launch of the long-awaited cybersecurity labeling program, called the “U.S. Cyber Trust Mark,” aimed at providing consumers with a better understanding of the cybersecurity of the products they use daily. This labeling program seeks to enhance transparency and competition in the Internet of Things (“IoT”) device space, to “help differentiate trustworthy products in the marketplace,” and to incentivize manufacturers to meet higher cybersecurity standards.…

Continue Reading Cybersecurity Labeling is (Almost) Here! Biden Administration Announces the U.S. Cyber Trust Mark Program

Welcome back to the Cost Corner, where we provide practical insight into the complex cost and pricing compliance issues facing Government contractors. This is the second installment of a two-part article on Defense Contract Audit Agency (DCAA) audits. DCAA’s mission is to conduct contract audits and to provide accounting and financial advisory services to all Department of Defense (DoD) components responsible for procurement and contract administration. Part 1 of this article provided an overview of DCAA’s mission, organization, and audit rights, as well as the types of audits conducted by DCAA. Part 2 focuses on DCAA’s standard audit procedures across audit types and identifies best practices for contractors dealing with DCAA audits.…

Continue Reading Government Contracts Cost and Pricing – DCAA Audits (Part 2)

The idea that investors might choose to consider certain environmental, social, and governance factors when deciding whether to buy shares of a company—a concept commonly known as ESG—continues to gain popularity with trillions of dollars currently held in investment funds that take into account ESG principles. Yet recently, the use of ESG investment measures has been the target of intense scrutiny and political pushback that threatens to produce inconsistent regulation and enforcement approaches at the federal, state, and local levels. The United States Securities and Exchange Commission (“SEC”), for example, has focused on ESG by investigating and taking action against companies that tout business practices such as consideration of environmental sustainability, but fail, in practice, to live up to their claims. In contrast, a number of state governors, legislatures, and attorneys general have passed laws or issued cease-and-desist-type letters to stop or discourage companies from considering ESG factors, in whole or in part, when making investment decisions. These varied and seemingly conflicting approaches to ESG can easily create a conundrum for companies that have incorporated or are seeking to incorporate ESG initiatives into their operations. When dealing with ESG, businesses today face the difficult task of determining how best to implement ESG-based policies, procedures, and practices, while mitigating the risk that such actions may draw the ire of officials and regulators who view the consideration of ESG factors in investment decisions to be a breach of the fiduciary duty to prioritize return on investment over non-financial considerations.…

Continue Reading An Evolving High-Wire Act: Navigating Conflicting Laws, Regulations, and Guidance in the ESG Space

In the 10th edition of the “OIG Shorts” series, Sheppard Mullin’s Organizational Integrity Group continued its exploration of a number of complex compliance matters with a discussion on Setting the Table for Good Decision-Making: And Making Sure the Chief Legal Officer Has a Seat at It. This post discusses why it’s important that Chief Legal Officers and Chief Ethics & Compliance Officers have meaningful, real-time involvement in the key legal, organizational, reputational, and business discussions/decisions of their companies, as well as direct access to the Chief Executive Officer and the Board.…

Continue Reading Organizational Integrity Shorts: A Seat at the Table

It’s starting to feel like summer in Washington, DC and like most Washingtonians, the GSA and SBA are thinking about pools. So throw on some flip flops, grab a cold beverage, and let’s dive in to the 8(a) Multiple Award Schedule (“MAS”) Pool Initiative (and, obviously, prepare yourself for many, many more pool-themed puns).…

Continue Reading Let’s Go Swimming: Small Disadvantaged Business Growth Targeted by SBA and GSA 8(a) MAS Pool Initiative