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.
The Impact of DOD’s Enhanced Debriefings Rule on Bid Protest Timeliness
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”).
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Does Your Contract Work Abroad Require A Combatting Trafficking In Persons Compliance Plan? Now Is A Good Time To Check
The U.S. Government Accountability Office (“GAO”) recently released a new report finding that Army and Navy contracting officials were unaware of their oversight responsibilities regarding combating trafficking in persons. Though the U.S. Government has a zero tolerance policy when it comes to human trafficking, GAO’s report indicates that Department of Defense (“DOD”) officials have been lax in ensuring contractor compliance with anti-human trafficking requirements. Of particular concern are human trafficking activities by contractors on U.S. military bases overseas. Most commonly these cases involve foreign workers employed on U.S. Government contracts overseas that are subjected to labor abuses, such as wage withholding.
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The NISPOM is Becoming a Regulation & Contractors Have Six Months to Comply
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.…
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DoD’s Long Awaited Rule on CMMC – Plus a New Cybersecurity Assessment Methodology for Contractors to Start Right Now
At long last, the Department of Defense (“DoD”) has provided its interim rule, published in the Federal Register on September 29, 2020, amending the Defense Federal Acquisition Regulation Supplement (“DFARS”) to set forth requirements for the Cybersecurity Maturity Model Certification (“CMMC”) program, as well as new requirements for a “NIST SP 800-171 DoD Assessment Methodology.” The interim rule is effective November 30, 2020, and comments to the interim rule should be submitted by November 30 as well. Continue reading for our breakdown of key provisions.
Continue Reading DoD’s Long Awaited Rule on CMMC – Plus a New Cybersecurity Assessment Methodology for Contractors to Start Right Now
Interim Rule Confirms Section 889 Part B Restriction on Contractor Use of Chinese Telecom Will Go Into Effect August 2020
On July 14, 2020 the Department of Defense (“DoD”), General Services Administration (“GSA”), and the National Aeronautics and Space Administration (“NASA”) published an Interim Rule amending the Federal Acquisition Regulation (“FAR”) in order to implement Section 889(a)(1)(B) of the FY 2019 National Defense Authorization Act (“NDAA”). The Interim Rule is effective August 13, 2020, and applies to all solicitations issued after (or resulting in contracts that will be awarded after) the effective date. Interested parties have until September 14, 2020 to submit written comments for consideration in the formation of the Final Rule.
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DOD CMMC Update – Third Party Auditors Gear Up and COTS Providers Get a Pass
A lot has happened since the Department of Defense (“DOD”) released its Cybersecurity Maturity Model Certification (CMMC) v. 1.0 back in February (see our prior discussion here). In addition to developments with the CMMC Accreditation Body (“CMMC AB”), DOD has clarified applicability of the program to Commercially available off-the-shelf (“COTS”) providers and the impact of COVID-19 on program implementation. …
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DoD Issues Class Deviation to Address Contractor Reimbursement for Paid Leave Required to Maintain a Mission-Ready Workforce During the COVID-19 Outbreak Pursuant to Section 3610 of the CARES Act
To further assist the contractor community with the effects of the unprecedented Coronavirus Disease 2019 (COVID-19), the U.S. Department of Defense (DoD) issued on April 8, 2020 a Class Deviation authorizing contracting officers to use a new clause – DFARS 231.205-79, CARES Act Section 3610 Implementation – to address contractor reimbursement under Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. 116-136). Section 3610 allows agencies to reimburse paid leave, including sick leave, that a contractor provides to keep its employees or subcontractors in a ready state, including to protect the life and safety of Government and contractor personnel, during the COVID-19 pandemic. Paid leave is reimbursable at the contractor’s minimum billing rates under its contracts, and may be allowed for up to an average of 40 hours per week. …
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DoD’s Squeeze of Chinese Telecom Equipment Continues
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…
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Achieving Cyber-Fitness in 2017: Part 3—Proving Compliance and the Role of Third-Party Auditors
Reprinted from The Government Contractor, with permission of Thomson Reuters. Copyright © 2017. Further use without the permission of West is prohibited. For further information about this publication, please visit http://legalsolutions.thomsonreuters.com, or call 800.328.9352.
The Department of Defense final rule for safeguarding covered defense information requires contractors to implement the security controls in National Institute of Standards and Technology Special Publication 800-171 by December 31. See 81 Fed. Reg. 72986; Chierichella, Bourne and Biancuzzo, Feature Comment, “Achieving Cyber-Fitness In 2017: Part 1—Planning For Compliance,” 59 GC ¶ 25. In enacting the final rule, the drafters created “[n]o new oversight paradigm” or certification requirement. 81 Fed. Reg. 72990. More recently, in response to questions from industry on compliance with NIST SP 800-171, DOD stated,
The rule does not require “certification” of any kind, either by DoD or any other firm professing to provide compliance, assessment, or certification services for DoD or Federal contractors. Nor will DoD give any credence to 3rd party assessments or certifications—by signing the contract, the contractor agrees to comply with the terms of the contract. It is up to the contractor to determine that their systems meet the requirements.
Some companies with limited cybersecurity expertise may choose to seek outside assistance in determining how best to meet and implement the NIST SP 800-171 requirements in their company. But, once the company has implemented the requirements, there is no need to have a separate entity assess or certify that the company is compliant with NIST SP 800-171.…
Continue Reading Achieving Cyber-Fitness in 2017: Part 3—Proving Compliance and the Role of Third-Party Auditors