Government

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
Continue Reading Hot off the Presses: Sheppard Mullin Publishes its “Federal Grants Survival Guide” for Commercial, For-Profit Companies

On August 23, 2023, the White House’s Office of Management and Budget (“OMB”) issued its notification of final guidance implementing Title IX of the Infrastructure Investment and Jobs Act (“IIJA”) – the Build America, Buy America (“BABA”) Act. The Guidance amends Title 2 of the Code of Federal Regulations, by adding a new Part 184 and a new provision to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 C.F.R. Part 200 (the “Uniform Guidance”). The publication provides key clarifications arising from industry input after releasing the Proposed Rule back in February (and discussed previously
Continue Reading Top 10 Takeaways from OMB’s “Build America, Buy America” Guidance for Infrastructure Projects

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

The end of the Fiscal Year is upon us, which typically coincides with a flurry of procurement activity and then a wave of bid protests. As most of you know, there are three primary fora for bid protests: procuring agencies, the Government Accountability Office (GAO), and the Court of Federal Claims (COFC). Although the COFC has relatively lenient timeliness rules, agencies and GAO have short, strict, and fairly draconian timeliness rules for filing protests. So as the protest season approaches, we thought it was a good time to refresh everyone on the rules so you are not disappointed to find that
Continue Reading Bid Protest High Season Is Coming – A Reminder About the Need for Fast Decisions

The origination of Other Transaction Agreements (OTAs) traces back to the October 1957 launch of Sputnik I by the Soviet Union and the subsequent Space Race. Congress created the National Aeronautics and Space Administration (“NASA”) to quickly design and build new space technology. Following the creation of NASA, Congress granted the agency broad authority to “enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary” to carry out its mission. National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, Section 203(5).
Continue Reading Challenging Other Transaction Agreements – Navigating the Jurisdictional Highway

On August 9, 2023, President Biden issued an Executive Order (E.O.) ordering the issuance of outbound investment restrictions. This E.O. comes after nearly a year of anticipation (as we have documented on several occasions over the past year). This is the start of the reverse Committee on Foreign Investment in the United States (CFIUS) process that has been mostly speculation (and blog articles) until yesterday. In conjunction, the Treasury Department issued a press release, fact sheet, and Advance Notice of Proposed Rulemaking (ANPRM) seeking comments from the public on the proposed restrictions by September 28.
Continue Reading Reverse CFIUS Unveiled: Focus on China, Semiconductors, Artificial Intelligence, and Quantum Computing

The idea that investors might choose to consider certain environmental, social, and governance factors when deciding whether to buy shares of a company—a concept commonly known as ESG—continues to gain popularity with trillions of dollars currently held in investment funds that take into account ESG principles. Yet recently, the use of ESG investment measures has been the target of intense scrutiny and political pushback that threatens to produce inconsistent regulation and enforcement approaches at the federal, state, and local levels. The United States Securities and Exchange Commission (“SEC”), for example, has focused on ESG by investigating and taking action against
Continue Reading An Evolving High-Wire Act: Navigating Conflicting Laws, Regulations, and Guidance in the ESG Space

Welcome back to the Cost Corner, where we provide practical insight into the complex cost and pricing compliance issues facing Government contractors. This is the second installment of a two-part article on Defense Contract Audit Agency (DCAA) audits. DCAA’s mission is to conduct contract audits and to provide accounting and financial advisory services to all Department of Defense (DoD) components responsible for procurement and contract administration. Part 1 of this article provided an overview of DCAA’s mission, organization, and audit rights, as well as the types of audits conducted by DCAA. Part 2 focuses on DCAA’s standard audit procedures across
Continue Reading Government Contracts Cost and Pricing – DCAA Audits (Part 2)

On July 18, 2023, the Biden Administration announced the launch of the long-awaited cybersecurity labeling program, called the “U.S. Cyber Trust Mark,” aimed at providing consumers with a better understanding of the cybersecurity of the products they use daily. This labeling program seeks to enhance transparency and competition in the Internet of Things (“IoT”) device space, to “help differentiate trustworthy products in the marketplace,” and to incentivize manufacturers to meet higher cybersecurity standards.
Continue Reading Cybersecurity Labeling is (Almost) Here! Biden Administration Announces the U.S. Cyber Trust Mark Program

The Department of Homeland Security (“DHS”) announced on July 21, 2023 they will publish a revised version of Form I-9 on August 1, 2023. DHS also announced an enhanced remote verification flexibility using video for E-Verify employers, both for clean-up of I-9s created during the pandemic and going forward.
Continue Reading DHS Announces New Form I-9 and Remote Verification for E-Verify Employers

In the 10th edition of the “OIG Shorts” series, Sheppard Mullin’s Organizational Integrity Group continues its exploration of a number of complex compliance matters with a discussion on Setting the Table for Good Decision-Making: And Making Sure the Chief Legal Officer Has a Seat at It. This post discusses why it’s important that Chief Legal Officers and Chief Ethics & Compliance Officers have meaningful, real-time involvement in the key legal, organizational, reputational, and business discussions/decisions of their companies, as well as direct access to the Chief Executive Officer and the Board.
Continue Reading Organizational Integrity Shorts: A Seat at the Table

This month, Sheppard Mullin’s Organizational Integrity Group continued its exploration of a number of complex compliance matters as part of their “OIG Shorts” series with a discussion on Understanding the Various Layers of a Targeted Compliance Program. This post discusses the importance of a targeted, multi-layered compliance program focused at individual deals, sales, contracts, etc. – as distinguished from the equally important company-wide E&C program previously discussed.
Continue Reading Organizational Integrity Shorts: Understanding the Various Layers of a Targeted Compliance Program

On March 31, 2023, the U.S. Department of Treasury and Internal Revenue Service (IRS) released proposed guidance clarifying how manufacturers may meet the critical minerals and battery sourcing requirements for the clean vehicle tax credit under the 2022 Inflation Reduction Act (“IRA”). The IRA substantially modified the tax credit incentive structure of the Internal Revenue Code as it relates to electric vehicles (“EV”). As the demand for lithium and critical minerals is higher than ever, taxpayers and EV manufacturers alike have been eagerly anticipating this guidance.
Continue Reading Tax Credits for Electric Vehicle Batteries Under the Inflation Reduction Act: Free Trade Agreement Edition

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

Summer is here and we’re back with another edition of the Cost Corner, where we provide practical insight into the complex cost and pricing requirements that apply to Government contractors. We just completed a two-part series on the Truthful Cost or Pricing Data Statute, commonly known as the Truth in Negotiations Act (TINA).[1] We will return to TINA in a few months to address the Defense Contract Audit Agency’s (DCAA) playbook for defective pricing audits. But first, we embark on a two-part series regarding DCAA audits generally. Part 1 (this article) provides an overview of DCAA’s mission, organization, audit
Continue Reading The Cost Corner: Government Contracts Cost and Pricing – DCAA Audits

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
Continue Reading Treasury Issues New Proposed Guidance on Domestic Content Requirements of the Inflation Reduction Act – Updated Qualification Analysis and (Still) Lingering Questions