DOD Proposed Rules Seeking Contractor Business System Rule Self Assessments

The Department of Defense issued a proposed rule on July 15th that would revise the DFARS Business Systems Rule by requiring contractors with estimating, accounting, material management, and accounting systems that are currently subject to the existing Business Systems Rule to perform self-assessment reports on their business systems compliance.  The proposed rule would have contractors assuming responsibility for annual self-assessments of those systems and for overseeing a triennial audit of the contractor’s compliance by an independent contractor-selected Certified Public Accountant.  As drafted, the proposed rule would only apply to the contractor’s accounting, estimating, material management, and accounting systems used for DOD CAS-covered contracts. Government auditors would examine the results of the self-evaluations.  Contractors will be offered no favorable credit or “safe harbor” for disclosures made in the contractor’s report.


Continue Reading Federal Register Round Up – June/July 2014

In February 2013, we reported (on our Healthcare Law Blog) that the Centers for Medicare and Medicaid Services (CMS) announced the final rule for the Physician Payments Sunshine Act.  In the interest of providing more transparency for patients, the final rule requires pharmaceutical and medical device manufacturers and group purchasing organizations to report payments or transfers of value provided to physicians or teaching hospitals and to report physician ownership and investment interests.  The deadline for submission of aggregate data was March 31, 2014, and the deadline for submission of detailed data is June 30, 2014.  CMS has already established a website to display that data beginning in September 2014.  In the meantime, also in the interest of transparency, on April 9, 2014 CMS touted the “historic” release of data showing utilization, payments, and submitted charges for services and procedures provided by physicians and other health care professionals to Medicare beneficiaries.  As claimed by CMS, this data covers “880,000 distinct health care providers who collectively received $77 billion in Medicare payments in 2012, under the Medicare Part B Fee-For-Service program” and will enable “a wide range of analyses that compare 6,000 different types of services and procedures provided, as well as payments received by individual health care providers.” (See press release. The data is available here.)  The consequences of such unprecedented releases of payment/investment interest and Medicare billing data are significant.
Continue Reading Cloudy Skies Ahead for Providers? CMS’ Release of Medicare Billing Data Combined with Physician Payment Sunshine Act Data May Boost Fraud Litigation

Amended SDN Designations Under New Sanctions Programs

On May 23, the U.S. Department of Treasury, Office of Foreign Assets Control (“OFAC”) published additional identifying information for persons whose property has been blocked for their activities related to the conflict in the Central African Republic.  See 79 Fed. Reg. 29,842 (May 23, 2014).  On May 12, President Obama issued an Executive Order that authorizes the blocking of all property in the United States of persons for activities including actions that threaten the peace or stability of the Central African Republic, actions or policies that undermine transitional institutions or democratic institutions, targeting women for acts of violence, the recruitment of child soldiers, and other human rights abuses.  See Exec. Order 13,667 (May 12, 2014).  The Executive Order provides authority for persons to be added to OFAC’s Specially Designated National (“SDN”) List.  Once a person is added to that list, that person’s property under U.S. jurisdiction is blocked, and U.S. persons are prohibited from transacting with that person.  The Central African Republic sanctions are the most recent example of sanctions programs targeting human rights violators, and a discussion of previous sanctions can be found in our Global Trade Blog.


Continue Reading What’s New Out There? Highlights from the Federal Register

DoD Issues Final Rule regarding Counterfeit Electronic Parts (79 Fed. Reg. 26092)

The Department of Defense issued a final rule on May 6, 2014 that sets forth contractor responsibilities related to the detection and avoidance of counterfeit electronic parts, including the obligation to report counterfeit or suspected counterfeit electronic parts.  For a detailed discussion of this new rule, see article here.


Continue Reading What’s New Out There? Highlights from the Federal Register

This month’s Federal Register Updates include four important changes that will impact the day-to-day activities of Government Contractors and Agencies alike.  The first, a final DFARS rule on Performance-Based Payments, provides detailed guidance and instructions on the use of the Performance-Based Payment analysis tool, which is required to be used by all Contracting Officers contemplating use of performance-based payments on new fixed-price type contract awards.  The second is a proposed rule that would extend personal conflicts of interest to a newly expanded group of “covered employees” who perform functions closely associated with inherently governmental functions (not simply acquisition functions, as is currently the case under the present rule) and contracts for personal services.  The third change does not impose requirements on contractors, but does establish DoD procedures relating to the reported foreign ownership, control, or influence (FOCI) information that DoD is tasked with evaluating, mitigating, or negating. And the fourth important change, the President’s Memorandum and Executive Order on Compensation Data Issued on National Equal Pay Day, continues the President’s push for greater pay equality between women and minorities.
Continue Reading What’s New Out There? Highlights from the April 2014 Federal Register

A.  EPA Adopts Final Rule: EPA-Specific Past Performance Regulations (79 Fed. Reg. 15921-24) (3/21/2014)

The EPA is deleting EPA-specific past performance regulations in the EPA Acquisition Regulation (EPAAR) because they are no longer necessary to meet the agency’s needs in light of recent updates to the FAR.  See 79 Fed. Reg. 46783 (Aug. 1, 2013).  The new FAR requirements mirror current EPA policies for collecting and maintaining contractor past performance, so there is no longer a need for an EPA-specific supplement.  FAR subpart 42.15, combined with the CPARS guidance and reference material included at the CPARS web site (www.cpars.gov) provides sufficient policy, procedures, and guidance to satisfy the EPA’s needs.  Thus, the EPA deleted EPAAR sections 1542.15, 1552.242-71, and 1553.209.


Continue Reading What’s New Out There? Highlights from the March 2014 Federal Register

1. Proposal to Amend FAR to Implement Revised SBA Regulations

On February 3, 2014, DoD, GSA, and NASA proposed to amend the FAR, via FAR Case 2012-022, to implement revisions made by the SBA to its regulations implementing section 8(a) of the Small Business Act “to provide additional FAR coverage regarding protesting an 8(a) participant’s eligibility or size status, procedures for releasing a requirement for non-8(a) procurements, and the ways a participant could exit the 8(a) Business Development program.”  In addition to several editorial changes, the notice proposes the following substantive changes:


Continue Reading What’s New Out There? Highlights from the February 2014 Federal Register

1. Final Rule Requiring Accelerated Payments to Small Business Subcontractors.

On November 25, 2013, the FAR Councils published a final rule that, inter alia, amended the FAR to require accelerated payments to small business subcontractors in certain circumstances.  The final rule adds a new FAR clause, 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, which must be included in all subcontracts with small business concerns.  The new clause requires prime contractors to make accelerated payments to small business subcontractors “to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract” once the Government has issued an accelerated payment to the prime contractor and once the small business subcontractor has submitted “a proper invoice and all other required documentation” for receipt of payment.  The final rule, which became effective on December 26, 2013, does not provide any new rights under the Prompt Payment Act.


Continue Reading Government Procurement: November and December 2013 and January 2014 Federal Register Update

1. Proposed Rule to Amend DFARS Coverage of Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States. 

On October 31, 2013, the Department of Defense (“DoD”) proposed to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to amend and clarify certain provisions regarding contractor personnel supporting U.S. Armed Forces deployed outside the United States.  As an initial matter, DFARS § 252.225-7040(a) would be amended to clarify which contractors are authorized to accompany the force (“CAAF”).  Further, DoD proposed to add language to section (b)(3) to emphasize that, when CAAF are authorized to carry arms for personal protection, they are only authorized to use force for individual defense.  Finally, the proposed rule would clarify the broad discretionary power of the Contracting Officer overseeing CAAF; specifically, the rule would provide that the Contracting Officer “may direct the Contractor, at its own expense, to remove and replace any Contractor personnel who jeopardize or interfere with mission accomplishment or who fail to comply with or violate applicable requirements” of the Contract.


Continue Reading Government Procurement: October and November 2013 Federal Register Update

1. Final Rules Regarding the Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors

On September 24, 2013, the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) published a final rule revising the implementing regulations of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, (VEVRAA). OFCCP is responsible for enforcement of VEVRAA, which prohibits employment discrimination against protected veterans by covered Federal contractors and subcontractors. VEVRAA also requires each covered federal contractor and subcontractor to take affirmative action to employ and advance the employment of these veterans. The final rule strengthens several provisions that are intended to aid in recruitment and hiring efforts, such as clarifying the mandatory job listing requirements, requiring data collection pertaining to protected veteran applicants and hires, and establishing hiring benchmarks to assist in measuring the effectiveness of the affirmative action efforts. 78 Fed. Reg. 58614 (Sept. 23, 2013).


Continue Reading Government Procurement: September and October 2013 Federal Register Update