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

At the end of 2019, the Department of Defense (“DoD”) took another step to limit the potential cyber risks posed by telecommunications equipment manufactured by Chinese companies (and potentially Russian
Continue Reading DoD’s Squeeze of Chinese Telecom Equipment Continues

Trade Agreements Act compliance changed fundamentally three years ago. Or, so we thought on December 7, 2016, when the U.S. Court of International Trade (“CIT”), the appellate body for country
Continue Reading The Evolution of TAA Compliance Post-Energizer – “Substantially Transformed” Has Substantially Changed

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

The Government remains intensely focused on how best to protect its Controlled Unclassified Information (CUI) once it is released to contractors. In a shift from its initial approach of “we will take the contractor’s word for it,” the Department of Defense (DoD) announced in June 2019 it is in the process of developing a new cybersecurity certification program for its contractors, which will involve using third party auditors to validate contractor compliance with required security controls. In addition, on June 19, 2019, the National Institute of Standards and Technology (NIST) released two new highly-anticipated draft special publications – NIST SP 800-171, Rev 2 and NIST SP 800-171B – with a tight turnaround time for comments by July 19, 2019.
Continue Reading Cyber Update: DoD Contractor Cybersecurity Certification and 33 New Enhanced Controls to Combat the Advanced Persistent Threat

On May 2, 2019, the General Services Administration (“GSA”) and the Office of Management and Budget (“OMB”) finally released their Phase 2 Implementation Report (the “Phase 2 Report”) for “Procurement Through E-Commerce Portals,” as directed by Section 846 of the National Defense Authorization Act for Fiscal Year 2018 (“FY 2018 NDAA”).[1]

GSA/OMB offered a sneak preview of the Phase 2 Report at an Industry Day held on December 12, 2018, during which GSA/OMB revealed their intent to proceed with a proof of concept contract utilizing only the E-Marketplace model. Industry pushback against a single model proof of concept was both quick and severe and, coupled with the lengthy delay issuing the Phase 2 Report, many wondered whether GSA/OMB were reevaluating their proposed approach.
Continue Reading The Future of COTS Procurement: Top 10 Questions from GSA’s Section 846 Phase 2 Report