On November 14, 2022, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a proposed rule that would amend the Federal Acquisition Regulation (FAR) to require Federal contractors that receive annual Federal contract obligations over a specified amount to disclose their greenhouse gas (GHG) emissions and climate-related financial risk, and set science-based targets to reduce GHG emissions. This proposed rule implements section 5(b) of Executive Order 14030, Climate-Related Financial Risk, which we previously wrote about here. The Government will consider comments from interested parties that are submitted by January 13, 2023, after which a final rule will be formulated.Continue Reading Proposed Rule Requires Contractors to Disclose Greenhouse Gas Emissions and Climate-Related Financial Risk
The Federal Acquisition Regulatory Council (the “FAR Council”) currently is considering amendments to the Federal Acquisition Regulation (“FAR”) that would elevate the consideration of climate-related risks in Federal Government contracting.Continue Reading ESG for Government Contractors: Climate-Related Risk Considerations in Federal Procurement
The Office of Management and Budget (“OMB”) released its draft Federal Zero Trust Strategy under President Biden’s Executive Order on Improving the Nation’s Cybersecurity (No. 14028) (discussed previously here and…
Continue Reading Moving to Zero Trust – CISA and OMB Seek Comments on Zero Trust Publications and Cloud Security Technical Reference Architecture under Cybersecurity Executive Order
Congress recently advanced legislation that directs the National Institute of Standards and Technology (NIST) to create standards and guidelines for securing Internet of Things (“IoT”) devices used by Federal agencies and their contractors. We previously reported on this legislation in April of 2019 when it was introduced in the House (H.R. 1668) and the Senate (S. 734). On September 14, 2020, the House of Representatives passed the legislation on a voice vote.
Continue Reading IoT Legislation Advances in Congress
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
Each year, the Government purchases more and more cloud computing from contractors. But while many small businesses can provide cloud computing, the current rules associated with small business set-aside contracts prevent agencies from awarding prime contracts with a large cloud computing component to small businesses.
Continue Reading More Opportunities On the Horizon for Small Businesses Seeking to Sell Cloud Computing to the Government
Over the last few years, there has been a significant push to consolidate all contractor information into central locations, and also to ensure that all performance-related information is updated and current (allowing the government customers to have access to the latest and greatest information about how a contractor has performed). Two recent rules – one final and the other proposed – are further implementing this grand plan. See 78 Fed. Reg. 46783 (August 1, 2013) and 78 Fed. Reg. 48123 (August 7, 2013). The final rule standardizes and further clarifies the government’s internal administrative obligations with regard to past performance evaluations, but the new proposed rule will shrink from 30 days to 14 days the period of time that a contractor has to comment on a past performance evaluation. Going forward, contractors will need to be quick on the trigger to ensure that they monitor their past performance evaluations and respond in a timely manner.Continue Reading Quick on the Trigger – Period for Contractors to Comment on Past Performance Evaluations Will Shrink from 30 Days to 14 Days
In March 2010, the U.S. Government rolled out a new tool promised to provide a centralized source for all publicly available contractor past performance and integrity information – the Federal Performance and Integrity Information System (“FAPIIS”). We have written multiple times about it (in June 2010, March 2011, and January 2012), including the importance of monitoring the information entered to ensure that past performance evaluations are accurate, complete, and fair, and also to prevent release of proprietary information to the public. But the system continues to evolve and, as contractors try to manage the information in FAPIIS, many companies find the process baffling due to (among other things) the multiplicity of modules within the system and the acronyms used to identify them. In fairness, government personnel tasked with implementing FAPIIS have developed on-line training to assist contractors in navigating this complex system. That said, not everyone involved in government contracting can or will take the training, but everyone does need a basic understanding of FAPIIS. So keep reading, because you won’t find this information in the FAR.Continue Reading Deciphering the Alphabet Soup – FAPIIS, CPARS, and PPIRS; Don’t Look For All This In The FAR
On January 2, 2011, the President signed the James Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. No. 111-347, which set up a relief fund for victims, first responders, and construction workers who were injured in the September 11 terrorist attacks in New York City. To pay the estimated $4.3 billion price tag for the Act, Section 301 of the Act imposed on any foreign person a tax equal to 2% of federal procurement payment received by that foreign person. See 26 U.S.C. § 5000C. In addition, any person who makes or otherwise is a withholding agent with respect to such a payment is required to withhold the 2% tax from the federal procurement payment and remit the tax withheld to the Internal Revenue Service (“IRS”) under tax laws and regulations applicable to withholding of United States taxes from payments made to foreign persons. Although the tax has been in place for more than 14 months and the IRS has issued a revised Form 1042 with revised instructions to implement withholding and reporting obligations, the Government is only now turning to the details of how this tax will be accounted for in connection with the procurement process. And – as is often the case – there is quite a lot of devil in those details.Continue Reading Terrorism and Taxes – Proposed FAR Rule Imposes 2% Tax on Foreign Offers to Fund 9/11 Relief Fund
On April 26, 2011, the Department of Defense (“DoD”), General Services Administration (“GSA”), and National Aeronautics and Space administration (“NASA”) published a proposed rule to amend the Federal Acquisition Regulation (“FAR”) coverage of organizational conflicts of interest (“OCIs”). See 76 Fed. Reg. 23236 (Apr. 26, 2011). In addition to transferring the regulatory coverage of OCIs from FAR Part 9, “Contractor Qualifications,” to FAR Part 3, “Improper Business Practices and Personal Conflicts of Interest,” the proposed rule departs from existing FAR coverage of OCIs, as well as longstanding Government Accountability Office (“GAO”) precedent, in several important respects. Comments on the proposed rule are due by June 27, 2011.
Continue Reading Proposed FAR Rule: A New Regulatory Framework For Organizational Conflicts Of Interest And Unequal Access To Nonpublic Information