Government Contracts & Investigations Blog

Latest updates on Developments Affecting Government Contracts & Investigations

In news that will be of interest to every federal contractor, including large and small businesses, universities, banks, and the health care industry, Executive Order 14042 (along with the related Task Force Guidance and contract clauses) has been ENJOINED in the states of Kentucky, Ohio, and Tennessee. U.S. District Court Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky issued an order on November 30, 2021 granting Plaintiffs’ (a group including the states of Tennessee, Kentucky, and Ohio) motion for a preliminary injunction. For more information about this Order, check out our GovCon Alert available here.
Continue Reading What We Know And Don’t About The Federal Court Order Enjoining EO 14042

A Sheppard Mullin trial team led by partners Brad Graveline and Laura Burson obtained one of the largest patent infringement damages awards against the United States of America for client SecurityPoint Holdings, Inc (SecurityPoint).  Sheppard Mullin partner Don Pelto and associates Kazim Naqvi, Rebecca Mackin, and Tom Carr were also key members of the trial team.  In addition, the Sheppard Mullin team included trial specialist Stephanie Limbaugh and legal assistants Dori Dellisanti and Ann Castro.
Continue Reading Historic $130m+ Patent Infringement Award Against the United States of America

It is that time of year again when the U.S. Government Accountability Office (“GAO”) submits its bid protest statistics to Congress as mandated under the Competition in Contracting Act of 1984, 31 U.S.C. §3554(e)(2).  On November 16, 2021, the GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2020.  It has been a year of ups and downs, but, importantly, the chances of winning have stayed the same.
Continue Reading Everything Changes, Except That Which Stays the Same: GAO’s Bid Protest Annual Report to Congress

New York’s chief law enforcement agency recently squandered an opportunity to bring much needed guidance to the digital assets space.  On October 18, 2021, the Office of New York Attorney General, Letitia James (“NYAG”), issued a press release warning New York businesses that offer interest-bearing accounts to customers depositing virtual currency without having registered under New York General Business Law § 352, et seq. (the “Martin Act”) are breaking the law.
Continue Reading NYAG’s Warning to Crypto Businesses Muddies Regulatory Waters; Compliance Requirements Remain Elusive

It’s official: the Department of Veterans Affairs (“VA”) Medical Surgical Prime Vendor (“MSPV”) 2.0 Program is no more.  The VA has announced that it will not revive MSPV 2.0 following several unusually painful protests at the U.S. Court of Federal Claims (see our prior blogs here and here). Instead the VA will move on to MSPV-“Z”.  Generally speaking, there seems to be little difference between “2.0” and “Z,” except that some division of geographies may change.  But importantly, the VA plans to make clear in the MSPV-Z solicitation—which currently is in the works—whether and when it will transfer the
Continue Reading MSPV 2.0 Is Dead – Long Live MSPV

The National Institute of Standards and Technology (“NIST”) is seeking comments on its second draft of NIST SP 800-161 Rev. 1, “Cyber Supply Chain Risk Management Practices for Systems and Organizations,” published on October 28, 2021. We previously discussed the release of the first draft here. The public comment period currently is open and concludes on December 3, 2021. NIST anticipates releasing a final version during the third quarter of 2022.
Continue Reading Seeking HoNIST Opinions, Part II – NIST Invites Comments on Major Revision to Cyber Supply Chain Risk Management Practices and Software Guidelines Mandated By Cybersecurity Executive Order

On November 4, 2021, the Department of Defense (“DOD”) announced several changes to the Cybersecurity Maturity Model Certification (“CMMC”) program – the program that DOD intends to use to enhance the security of the defense industrial base through assessments and third-party cybersecurity certifications.[1] The new version of the program – “CMMC 2.0” – is a result of DOD’s internal review of the CMMC program implemented thus far (“CMMC 1.0”), which began following the release of an interim rule in September 2020, and included review of over 850 public comments. DOD intends to engage in additional rulemaking to refine and
Continue Reading DOD Updates Its Cybersecurity Certification Program – CMMC 2.0: What Contractors Need to Know

Colleges and universities with U.S. government-sponsored research or other non-grant funding take note. On September 9, 2021, President Biden signed Executive Order 14042 to implement COVID safety protocols for Federal service contractors and subcontractors. Among other things, Executive Order 14042 requires that entities holding Federal contracts (or “contract-like instruments”), including colleges and universities, mandate vaccinations and other safety protocols for a wide swath of their employees. Unlike the forthcoming related OSHA rule, Executive Order 14042 does not permit employees to provide regular negative test results in lieu of proof of vaccination. This summary alert highlights a few of the issues
Continue Reading Five Key Takeaways For Colleges and Universities From the New Federal Vaccination Mandate

On Wednesday, October 6, 2021, the Department of Justice (“DOJ”) announced a new Civil Cyber-Fraud Initiative to enforce cybersecurity standards and reporting requirements. The Initiative will use DOJ’s civil enforcement mechanisms, namely the False Claims Act, to pursue government contractors and federal grant recipients that “knowingly provid[e] deficient cybersecurity products or services, knowingly misrepresent[] their cybersecurity practices or protocols, or knowingly violat[e] obligations to monitor and report cybersecurity incidents and breaches.” DOJ will not limit enforcement to entities; individuals also can be held accountable for cybersecurity-related fraud. Under the False Claims Act, penalties for such violations could be substantial, including
Continue Reading DOJ Announces Civil Cyber-Fraud Initiative To Enforce Contractor Cybersecurity Compliance

On September 9, 2021, the President issued Executive Order 14042, which applies new rules – including vaccination mandates – to Federal contractors and subcontractors. This rule is different and separate from (and stricter than) the forthcoming OSHA emergency standard applicable to large businesses; because this Federal contractor mandate does not include a weekly testing option, it is therefore a true vaccination mandate. The rule defines “Federal contractor” very broadly. As a result, the rule likely covers most companies doing business with the Federal Government. Sheppard Mullin’s Government Contracts group diligently has been working in this area since the announcement
Continue Reading Executive Order 14042 Survival Guide

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
Continue Reading Does Your Contract Work Abroad Require A Combatting Trafficking In Persons Compliance Plan? Now Is A Good Time To Check

Last week, Coinbase Global Inc. (“Coinbase”) headed off confrontation with the Securities and Exchange Commission (“SEC”) by announcing it was shelving a much ballyhooed digital asset lending product, Lend.  The announcement came two weeks after Coinbase revealed that it had received a Wells notice from the SEC warning the company of its plans to sue over Coinbase’s planned October Lend launch.
Continue Reading A September to Remember: Coinbase Avoids SEC Clash by Dropping Crypto Lend Product

It is undeniable that, not only is the cannabis industry here to stay, but it is growing exponentially.  To date, 47 states, 4 U.S. territories, and the District of Columbia have legalized cannabis in some form – whether they decriminalize production, allow uses limited to cannabidiol (“CBD”) or hemp, or is as expansive as permitting THC-containing cannabis for medical use, adult-use or both.  Yet, in comparison to other industries, legitimate licensed cannabis-related businesses remain hobbled by the difficulties they face in accessing traditional banking and financial services – largely due to the fact that “marijuana” is still considered illegal on
Continue Reading SAFE Banking Act of 2021: Where Are We on Cannabis Banking Change?

The implications of the Federal Circuit’s Blue & Gold waiver rule – pursuant to which a disappointed offeror waives any protest grounds it may have had to the terms of a solicitation that the offeror could have, but failed to, raise pre-award – continues to reverberate in unexpected ways when applied to real-life procurement situations.  In VS2, LLC v. United States, — Fed. Cl. — (Fed. Cl. 2021), the Court of Federal Claims (“COFC”) declined to further expand the Blue & Gold waiver rule to all challenges to a procurement action that could have been made pre-award, signaling that
Continue Reading “You Got To Know When To Protest” Part III: The Court Of Federal Claims Declines To Expand Blue & Gold Waiver Rule For Bid Protests “Any Further Than The Federal Circuit Already Has”

On September 9, 2021, President Biden signed an Executive Order (EO) to implement COVID safety protocols for Federal service contractors. While the EO did not identify specific safety protocols, it did direct a Federal task force (the “Safer Federal Workforce Task Force,” created by Executive Order in January 2021) to issue COVID-19-related workplace safety guidance for prime contractors and subcontractors in the near future. Specifically, the Task Force is charged with issuing contractor guidance by September 24, 2021, including definitions of relevant terms, specific workplace safety protocols, and applicable exceptions.
Continue Reading COVID-19 Oversight and Enforcement: President Biden’s COVID Executive Order

The Office of Management and Budget (“OMB”) released its draft Federal Zero Trust Strategy under President Biden’s Executive Order on Improving the Nation’s Cybersecurity (No. 14028) (discussed previously here and here) and is seeking comments on the draft by September 21, 2021.  Relatedly, the Cybersecurity and Infrastructure Security Agency (“CISA”) is seeking comments on its recently released Zero Trust Maturity Model and Cloud Security Technical Reference Architecture (“TRA”), both aimed at moving the United States government toward a zero trust architecture. The public comment period for CISA’s materials currently is open and scheduled to conclude on October 1, 2021. 
Continue Reading Moving to Zero Trust – CISA and OMB Seek Comments on Zero Trust Publications and Cloud Security Technical Reference Architecture under Cybersecurity Executive Order