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Ryan Roberts is a partner in the Governmental Practice in the firm's Washington, D.C. office. He is also a member of the firm's Aerospace and Defense and Retail Industry Teams.

GSA long has stated that the “MAS program is designed to mirror commercial buying practices.” (Don’t laugh – I’m serious! Slide 12 if you don’t believe me.) In the commercial marketplace, SaaS licenses are sold for set periods of time (typically annual terms) and paid for in advance. Historically, GSA refused to accept this commercial term, explicitly prohibiting customer agencies from paying in advance when acquiring SaaS through the MAS program. Software companies, rejoice, because GSA finally has seen the light!Continue Reading Paid in Full: GSA Approves Advance Payment for SaaS Licenses

In January 2022, we warned software companies selling indirectly against attempting to enforce the terms of their End User License Agreement (“EULA”) directly against the Federal Government based on the decision of the Civilian Board of Contract Appeals (“CBCA”) in Avue Technologies Corp. Earlier this month, the Federal Circuit gave software companies some hope by vacating the CBCA’s decision. Read on, though, before filing your claim.Continue Reading Finally Invited to the Party? Federal Circuit Opens the Door for Software Companies Selling Through Resellers to Bring a Contract Claim Against the Federal Government

In addition to prohibiting the flow-down of non-mandatory FAR/DFARS clauses (which we talk about here), the Department of Defense (“DOD”) Final Rule in connection with the Defense Federal Acquisition Regulation Supplement (“DFARS”) Case 2017-D010 also touched on the decades-long debate as to which entities actually are subcontractors performing under a Federal prime contract. Yes, you read that correctly – there is no single definition for the terms “subcontract” or “subcontractor.” After almost 40 years of confusion, it appears the DFARS and Federal Acquisition Regulation (“FAR”) Councils are trying to end the debate once and for all.Continue Reading New Year, (Potentially) New Definition for “Subcontract”

On November 17, 2023, the Department of Defense (“DOD”) published a Final Ruleover five years in the making – addressing DOD policies regarding the applicability of laws to commercial products, commercial services, and commercially available off-the-shelf (“COTS”) products (DFARS Case 2017-D010). Partially implementing Section 874 of the Fiscal Year 2017 National Defense Authorization Act, DOD has imposed new regulations that expressly prohibit Contracting Officers (“CO”) and prime contractors alike from incorporating regulatory requirements of the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”) in prime contracts and subcontracts unless mandated by regulatory text.Continue Reading It’s the Most Wonderful Time for New DOD Flow Down Policies: Flowing Down Too Many Clauses Will Get Prime Contractors More Than a Lump of Coal

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

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

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

A few months ago we wrote about Congress utilizing the Inflation Reduction Act of 2022 to offer bonus tax credits[1] to certain energy facilities for meeting specified “domestic content” requirements.[2] Relying heavily on the Government’s prior experience with domestic content authorities, including the Federal Transit Authority’s (“FTA”) “Buy America” regulations, we discussed how the regulations, as written, left the renewable energy industry with more questions than answers on the applicability of the domestic content bonus tax credit to their current and future projects. Though we walked through our then-understanding of the regulations, including providing our own step-by-step analysis of how to comply with, and therefore receive, this domestic content bonus credit, we recognized that Treasury was in the process of issuing guidance that (we hoped) would shed more light on compliance obligations. After months of waiting, on May 12, 2023, Treasury, along with the Internal Revenue Service (“IRS”), released its long awaited Guidance (Notice 2023-38). In all fairness to Treasury, the Guidance does provide answers to many lingering questions. But, at the same time, the Guidance provides analysis that differs both from industry’s expectations and the FTA’s Buy America regulations in several significant respects – potentially opening a new can of compliance questions and concerns.Continue Reading Treasury Issues New Proposed Guidance on Domestic Content Requirements of the Inflation Reduction Act – Updated Qualification Analysis and (Still) Lingering Questions

For years, domestic content requirements have been a point of pain and frustration for government contractors. Historically, these regimes typically come in the form of the proverbial stick – that is, provide products and/or services that meet these country of origin requirements, or risk severe consequences (the billions in False Claims Act Trade Agreements Act settlements speak for themselves). But through the Inflation Reduction Act of 2022, Congress has taken a unique approach by authorizing the Department of Treasury to use country of origin as a carrot – offering certain energy facilities bonus tax credits for meeting specified “domestic content” requirements. To create this new carrot, Congress relied heavily on the Government’s prior experience with domestic content regimes – pulling predominantly from the Federal Transit Authority’s (“FTA”) “Buy America” regulations, but with a Buy American Act twist. In doing so, Congress has left the renewable energy industry with more questions than answers on the applicability of the bonus tax credit to their facilities.Continue Reading Domestic Content Requirements of the Inflation Reduction Act: Basic Requirements, Qualification Analysis, and Lingering Questions

In an “update” that reads more like a teaser to a B Movie, the OMB on Friday advised that it will have more guidance on EO 14042 for us soon. What precipitated this official warning that more guidance would be forthcoming? Well, it seems that tomorrow (October 18, 2022) OMB expects the Southern District of Georgia to narrow the nationwide injunction prohibiting enforcement of EO 14042. This is the procedural step we’ve all been waiting for since the 11th Circuit issued its decision on August 26, 2022. In anticipation of the narrowed injunction, OMB announced it expects to release three new guidance documents in the near future:Continue Reading EO 14042 Update 17.0 – Preview of Updated OMB Guidance

With apologies to Jaws II, just when you thought it was safe, the U.S. Court of Appeals for the 11th Circuit has released a shark back into the EO 14042 waters.Continue Reading Just When You Thought It Was Safe To Go Back In The Water . . . The 11th Circuit Revives Executive Order 14042