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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 Rule – over 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

On April 4, 2023, the Defense Contract Management Agency’s (“DCMA”) Commercial Item Group held an industry day at Fort Lee in Virginia. The DCMA Commercial Item Group assists DOD purchasers in determining whether items provided to DoD qualify as commercial products or services and, thus, will be subject to fewer federal acquisition and DoD requirements. The Commercial Item Group also assists with market research, technical analysis, price analysis, negotiation support, commercial item database maintenance and providing support on commercial products and services initiatives.Continue Reading DoD Commercial Item Group Summit: A Recap

The novel coronavirus (“COVID-19”) pandemic has given Department of Veterans Affairs (“VA”) contractors several powerful new tools in their toolbelts, and VA contractors should not leave available protections on the table. VA contractors, including those supplying medical devices under the MSPV-NG bridge contract and pharmaceuticals on a VA Federal Supply Schedule (“FSS”), now can negotiate for extraordinary limitations on liability (in addition to some provided by statute), among other opportunities. Particularly for contractors providing goods and services used in the COVID-19 pandemic response, it is crucial to understand both new protections available and other changes to the rules of VA contracting.
Continue Reading COVID-19 Changes Contracting at the VA

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

Every now and then, the FAR Councils issue a Federal Acquisition Circular (FAC) – an update to the Federal Acquisition Regulation implementing a number of changes. Often these changes are rather pro forma. But occasionally, you get a Circular with many different (and interesting) issues. FAC 2005-67, issued in late-June 2013, with rules becoming effective in June and July 2013, is one such circular. We thought it would be helpful to highlight five of these rules that raise interesting and timely issues, especially where they may signal additional changes yet to come.
Continue Reading Lots of Little Things – FAR Updates from the Federal Acquisition Circular

By: David S. Gallacher

2011 was a banner year for U.S. export control laws. The Obama administration has vowed to streamline and reform the bloated U.S. export control system – promising to build "higher walls" around a narrower universe of goods and technologies requiring export licenses. Following is a summary of ten of the key reforms to U.S. export laws that took place (or were proposed) in 2011. 
 Continue Reading 2011 Year In Review: Export Controls and Promised Reforms

By David S. Gallacher

While Vice President Biden was busy touting Summer 2010 as the “Summer of Recovery” and the economic effects of the February 2009 Stimulus Act (a.k.a. the American Recovery and Reinvestment Act, the Recovery Act, ARRA, the Stimulus Act, etc.), the gears of the regulatory process ground steadily onward. Throughout the summer, the White House Office of Management and Budget (“OMB”) issued updated policy guidance implementing the ARRA requirements, and the rule-makers in the FAR Councils remained hard at work updating and (hopefully) finalizing the regulations implementing the finer details of the Recovery Act. Despite the fact that the ARRA funding officially expired on September 30, 2010 (meaning that any unobligated ARRA funds will now revert to the federal treasury to be saved or spent another day), the Government spent its summer fine-tuning the regulations. As the sun begins to set on the Recovery Act, and as the Summer of Recovery fades into the past, we summarize here some of the key features of the final Recovery Act rules promulgated over the last few months. 
 Continue Reading Bidding Adieu To The “Summer of Recovery”: Changes To ARRA Buy American And Reporting Requirements

Effective October 1, 2010, the final rule amending FAR subpart 15.4 expands government contracting officers’ ability to obtain cost or price-related data for all contracts, including currently exempted commercial-items contracts. The amended rule is intended to clarify the FAR’s definition of “cost or pricing data” and to make the definition consistent with that used in the Truth in Negotiations Act (“TINA”) (10 U.S.C. §2306a and 41 U.S.C. §254b). The final rule’s effect, however, may increase both a government contractor’s disclosure requirements and its False Claims Act vulnerability.
Continue Reading Redefining Cost Or Pricing Data

By Townsend L. Bourne

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued a final rule on August 30, 2010 adjusting acquisition-related thresholds for inflation as set forth in section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. 75 Fed. Reg. 53129. Section 807 dictates that acquisition-related thresholds must be adjusted for inflation every five years using the Consumer Price Index for all-urban consumers. Pub. L. No. 108-375, 118 Stat. 1811 (2004). This section does not allow for adjustments to thresholds contained in the Davis-Bacon Act, the Service Contract Act of 1965, or Title III of the Trade Agreements Act of 1979.
 Continue Reading Inflation Adjustment Of Acquisition-Related Thresholds In The FAR

The FAR Councils issued an interim rule, effective October 14, 2009, revising the circumstances under which services not offered and sold commercially can still qualify as commercial services. This is important for a couple of reasons, but probably most importantly, because commerciality can eliminate the requirement for the submission of cost or pricing data and can limit the amount of Government contracting requirements to which a company is subjected. The new interim rule now permits a Contracting Officer determination of commerciality even where services are not offered and sold competitively in substantial quantities in the commercial marketplace. 
 Continue Reading Reining in Use of “Of A Type” Commercial Service Contracting