The U.S. Government continues to increase its Federal investment in space – not for exploration, but rather as a defense strategy – and this continued investment provides significant opportunity for commercial entities to partner with the Federal Government on space projects. On April 2, 2024, the Department of Defense (“DoD”) released its first ever Commercial Space Integration Strategy (the “DoD Strategy”) and, just a few days later, on April 8, 2024, the U.S. Space Force released its Commercial Space Strategy (the “Space Force Strategy”) (together the “Strategies”). The Strategies are complementary and formalize the U.S. Government’s commitment to “making commercial solutions integral—and not just supplementary—to national security space architectures.” The Strategies include a few key takeaways for both commercial space and satellite companies and traditional government contractors working in space-related activities. Here are the highlights:Continue Reading The Next Frontier: Key Takeaways from the New U.S. Government Commercial Space Strategies

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

On March 1, 2023, the U.S. Department of Defense (“DoD”) adopted, without change, Defense Federal Acquisition Regulation Supplement (“DFARS”) Case No. 2022-D010, Employment Transparency Regarding Individuals Who Perform Work in the People’s Republic of China (88 Fed. Reg. 12861), updating provisions at DFARS 225.7021 and adding contract clauses at 252.225-7057 and 252.225-7058. This latest DFARS rule reflects a shifting regulatory landscape aimed at increasing transparency and oversight of U.S. transactions involving China.Continue Reading Continuing Skepticism on China: Final Rule Requires Disclosure of Defense Contractor Personnel in China

On March 18, 2022, the Department of Defense (“DOD”) issued its long-awaited Final Rule implementing Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (“NDAA FY 2018”), and formally codifying defense contractors’ rights to post-award enhanced debriefings. Contractors have been bound by a Class Deviation implementing these requirements since March 2018, with DOD only issuing its proposed rule in May 2021. Though the Final Rule largely tracks the proposed rule, it does include several important clarifications, and, of course, directly impacts timeliness rules for filing post-award protests of DOD awards at the Government Accountability Office (“GAO”).
Continue Reading The Impact of DOD’s Enhanced Debriefings Rule on Bid Protest Timeliness

On December 21, 2020, the Department of Defense (“DoD”) published a final rule in the Federal Register that codifies the National Industrial Security Program Operating Manual (“NISPOM”) in the Code of Federal Regulations (“CFR”) at 32 CFR part 117. The rule will become effective on February 24, 2021, giving contractors six months from the effective date to comply with the changes. Comments on the proposed change are due by February 19, 2021.[1]
Continue Reading The NISPOM is Becoming a Regulation & Contractors Have Six Months to Comply

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

There are big changes happening in military healthcare procurement. Some are unsurprising given the October 1, 2019 deadline for the reorganization of all military hospitals and clinics under the management of the Department of Defense (DOD), Defense Health Agency (DHA). But some may be unexpected, reaching all the way to Department of Veterans Affairs (VA) procurement, though the extent to which the VA will ultimately be affected is unclear. In the past few weeks, at least three major announcements were made regarding military healthcare: (1) DHA and the Defense Logistics Agency (DLA) signed a memorandum of agreement (MOA) regarding their respective rolls in DOD healthcare, (2) DLA gave the VA access to its medical/surgical prime vendor formulary indefinitely, and (3) the VA cancelled its long-anticipated prime vendor solicitation under the Medical/Surgical Prime Vendor (MSPV) 2.0 program. Is this all a coincidence? Probably not.
Continue Reading What’s the VA Got to Do With It? Military Medical Procurement Changes Reach the VA

The 2018 National Defense Authorization Act (“NDAA” or “Act”) includes changes that could make the Department of Defense (“DoD”) a more effective and knowledgeable purchaser of Intellectual Property (“IP”) and promote more flexible IP acquisition strategies. These same changes also could encourage Contracting Officers to insist on broader IP rights and delivery requirements. While it has always been important for contractors to protect their IP (click here for our list of “Top 10 Ways to Lose Rights in Your IP”), with the passage of the 2018 NDAA, avoiding the loss of valuable IP rights could require even more sophistication and vigilance.
Continue Reading Contractors Beware: The 2018 NDAA Ushers In New Changes Affecting IP Rights

On May 18, 2016, the Department of Defense issued Conforming Change 2 of the “National Industrial Security Operating Manual” (“NISPOM”).   NISPOM Change 2 requires all U.S. government contractors who require access to U.S. classified information to implement an Insider Threat Program (“ITP”) that will gather, integrate and report relevant information related to potential or actual insider threats among cleared employees by November 30, 2016. Insider threats – a growing phenomenon – arise when employees or contractors exploit legitimate access to an organization’s data for unauthorized or malicious purposes. Much of the impetus for the new rule appears to be a valid concern about large-scale thefts of classified data, as exemplified by Edward Snowden’s release of a vast trove of sensitive documents stolen from the U.S. National Security Agency.
Continue Reading Insider Threat Programs – A New Challenge for Cleared Contractors