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

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
Continue Reading The True Impact of the Chinese Telecom Ban on Government Contractors

On September 9, 2019, the U.S. General Services Administration (“GSA”) announced it would be issuing a mass modification (expected sometime this month)[1] 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)

Continue Reading GSA Implements Restrictions on Certain Chinese-Made Telecommunications Services and Equipment

We recently wrote about the FAR Council’s release of an interim rule implementing restrictions on procurements involving certain Chinese telecommunications hardware manufacturers and service providers, such as Huawei and ZTE. The interim rule creates a new FAR Subpart 4.21, as well as two new contract clauses, FAR 52.204-24 and 52.204-25, which were effective August 13, 2019. These restrictions apply not only to prime contractors, but also to all subcontractors and throughout the supply chain. Concurrent with the release of the FAR interim rule, the Department of Defense (“DoD”) issued a memorandum, laying out DoD procedures to implement the prohibitions contained therein. These procedures apply to contracts, task orders, and delivery orders, including basic ordering agreements (BOAs), orders against BOAs, blanket purchase agreements (BPAs), and calls against BPAs.
Continue Reading Effective Last Month! – DoD’s Implementation of New FAR Prohibitions on Chinese Telecommunications Equipment and Services in Government Contracts

In accordance with Section 889(a)(1)(A) of the 2019 National Defense Authorization Act (Pub. L. No. 115-232) (the “2019 NDAA”), which required imposition of broad restrictions on procurements involving certain Chinese telecommunications hardware manufacturers such as Huawei Technologies Co. and ZTE Corp within one year, the FAR Council has released an interim rule implementing these restrictions. On August 13, the FAR Council released Federal Acquisition Circular 2019-05 (84 Fed. Reg. 40,216), creating a new FAR Subpart 4.21, as well as two new contract clauses, FAR 52.204-24 and 52.204-25, all of which are effective August 13, 2019. These restrictions apply not only to prime contractors, but also to all subcontractors and throughout the supply chain. Government contractors need to know that these new requirements are effective immediately and that opportunities for waivers are very limited.
Continue Reading Effective Immediately! – FAR Amended to Include Prohibition on Chinese Telecommunications Equipment and Services in Government Contracts

In 2019, cybersecurity has become top-of-mind for most federal government contractors and agencies that share sensitive information.  In addition to updated Department of Defense guidance and procedures for evaluating contractors’ compliance with cybersecurity requirements, as well as an increase in Department of Defense cybersecurity audits, the Federal Acquisition Regulation (FAR) council also has promised a new FAR clause that will require compliance with NIST SP 800-171 security controls for civilian agency contractors that receive or create Controlled Unclassified Information (CUI).
Continue Reading “Internet of Things” Guidance to be Added to Cybersecurity Requirements for Agencies and Federal Contractors

The 2019 National Defense Authorization Act (“NDAA”) imposes new restrictions on procurements for telecommunications equipment or services based on ties to certain Chinese entities, thereby growing the list of forbidden products for contractors. Specifically, Section 889 prohibits executive-branch agencies from initiating procurements or entering into contracts for certain telecommunications equipment or services from companies associated with, owned, or controlled by the People’s Republic of China, that are to be used “as a substantial or essential component of any system, or as critical technology as part of any system.”
Continue Reading The List of Forbidden Products Grows: The NDAA’s Prohibitions on Use of Certain Chinese-Made Equipment

On August 25, 2016, the United States Department of Labor (“DOL”) and Federal Acquisition Regulatory (“FAR”) Councils published “Guidance for Executive Order 13673, ‘Fair Pay and Safe Workplaces’” (“final rule”).  See 81 Fed. Reg. 58562. Also referred to as the “blacklisting” rule, it imposes strict disclosure guidelines and requires that both prospective and existing contractors – as well as subcontractors – disclose violations of federal labor laws that resulted in administrative merits determinations, civil judgments, or arbitral awards or decisions.  The final rule also requires that contractors and subcontractors disclose specific information to workers each pay period regarding their wages and also prohibits contractors from requiring that their workers sign arbitration agreements that encompass Title VII violations and claims of sexual assault or harassment.
Continue Reading Agencies Publish Strict New Labor Reporting Guidelines for Government Contractors

Volume V—The Land Mines Strewn Throughout the Data Room

M&A transactions, like most transactions in life, involve a cost/benefit analysis.  Some cost/benefit analyses are relatively easy to perform.  For example, if I buy an energy efficient appliance, I can calculate the likely savings in energy costs over the useful life of the appliance (the benefit) and compare it with the acquisition cost of the appliance (the cost).  M&A transactions, of course, involve far more complex cost/benefit analyses.  But the key to any such analysis is the ability to identify and quantify the costs and benefits with some measure of confidence.  Every line of business has its own quirks and idiosyncrasies, and they need to be understood when evaluating the acquisition of a company that operates in that line.  More than most, the business of government contracting is replete with such quirks and idiosyncrasies, and they can have a dramatic effect on the “cost” side of the cost/benefit analysis.Continue Reading What You Need to Know About Mergers and Acquisitions Involving Government Contractors and Their Suppliers

After nearly four years of planning and comments, DoD, GSA, and NASA issued a final rule today amending the Federal Acquisition Regulations (“FAR”) with a new Subpart 4-19 and a new contract clause 52.204-21 addressing the basic safeguarding of contractor information systems.  Applicable to all acquisitions, including commercial items other than commercial off-the-shelf items (“COTS”), the Final Rule applies to any contractor information system that may contain “Federal contract information,” meaning “information, not intended for public release, that is provided by or generated for the Government under a contract to develop or deliver a product or service to the Government.”  See FAR 4.1901.  The term expressly excludes information provided by the Government to the public (e.g., on public-facing web sites) or simple transactional information, “such as that necessary to process payments.”
Continue Reading It’s Arrived! FAR Final Rule Addressing “Basic Safeguarding of Contractor Information Systems”