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
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Government Contracts & Investigations Blog
Latest updates on Developments Affecting Government Contracts & Investigations
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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…
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A September to Remember: Coinbase Avoids SEC Clash by Dropping Crypto Lend Product
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.…
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SAFE Banking Act of 2021: Where Are We on Cannabis Banking Change?
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…
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“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”
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…
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COVID-19 Oversight and Enforcement: President Biden’s COVID Executive Order
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.…
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Moving to Zero Trust – CISA and OMB Seek Comments on Zero Trust Publications and Cloud Security Technical Reference Architecture under Cybersecurity 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. …
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Double Time – NIST Seeks Comments on Major Revision to Practices for Developing Cyber-Resilient Systems (SP 800-160) and Assessing Security and Privacy Controls in Information Systems and Organizations (SP 800-53A)
The National Institute of Standards and Technology (“NIST”) is seeking comments on its draft NIST SP 800-160, Volume 2, Revision 1, “Developing Cyber-Resilient Systems: A Systems Security Engineering Approach,” and draft NIST SP 800-53A, Revision 5, “Assessing Security and Privacy Controls in Information Systems and Organizations.” The public comment periods currently are open and conclude on September 20, 2021 and October 1, 2021, respectively.…
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Small Business Federal Government Contracting Dollars Continue to Increase
The U.S. Small Business Administration (“SBA”) recently announced that, yet again, the federal government exceeded its small business contracting goal by awarding $145.7 billion dollars in federal prime contracts – 26.01% of the government’s total procurement spending – to small businesses last year, with at least an additional $82.8 billion in small business subcontracts. The SBA released statistics in its FY 2020 Small Business Procurement Scorecard, available here. Notably, while small business contracting increased $13 billion in prime contracts, small business subcontracting may have decreased by an estimated $7.9 billion. Other Scorecard highlights include that the U.S. government exceeded…
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Fasten Your Seatbelts – Proposed Rule Implementing Biden’s “Buy American” Mandates
Change is in the air for the Buy American Act (“BAA”). On July 30, 2021, the Federal Acquisition Regulatory Council published a proposed rule to the Federal Acquisition Regulation (“FAR”) to implement President Biden’s Executive Order 14005, on “Ensuring the Future is Made in America by All of America’s Workers,” which seeks to further strengthen U.S. Buy American laws and further encourage domestic procurement (previously discussed here). A public meeting to discuss the proposed rule is scheduled for August 26, 2021, and comments will be due September 28, 2021. This blog article summarizes the new BAA proposed rule, offering…
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The Special Inspector General for Pandemic Recovery Calls For Increased Funding and Expanded Jurisdiction In Its Quarterly Report To Congress
By Scott Roybal & Matthew Lin
On July 30, 2021, the Special Inspector General for Pandemic Recovery (“SIGPR”), Brian D. Miller, submitted his quarterly report to Congress. SIGPR was created as an independent watchdog of the Department of the Treasury under the CARES Act. It is tasked with investigating fraud and abuse of federal stimulus funds in response to COVID-19, and works in collaboration with law enforcement and U.S. Attorney’s Offices throughout the country. These investigative efforts have resulted in civil and criminal enforcement actions against recipients of federal funding throughout the country, and such enforcement action investigations are sure to continue. The quarterly report showed…
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The Second Circuit Court of Appeals Finds That French Banker Need Not Travel to the United States to Seek Dismissal of Her Indictment
By Michael Gilbert & Shin Hahn
On August 5, 2021, the U.S. Court of Appeals for the Second Circuit ruled that a French banker may seek dismissal of an indictment without having to physically appear in the United States. The decision limits the application of the “fugitive disentitlement” doctrine – which has long prevented foreign nationals from challenging criminal prosecutions without appearing in the United States to do so.…
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Second Circuit Upholds Enforceability of SEC Tolling Agreements
In Securities & Exchange Comm’n v. Fowler, No. 20-1081, 2021 WL 3083655 (2d Cir. July 22, 2021), the United States Court of Appeals for the Second Circuit upheld a lower court judgment awarding the Securities and Exchange Commission (“SEC”) civil penalties, disgorgement, and injunctive relief in a securities fraud action against a broker engaged in unsuitable and unauthorized high-frequency trading. The district court entered its judgment following a jury trial finding the defendant guilty of violations of Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder, and Sections 17(a)(1), 17(a)(2), and 17(a)(3) of the Securities…
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Watch Your Boundaries – FedRAMP Releases Draft Authorization Boundary Guidance for Public Comment
The FedRAMP Program Management Office is seeking comments on its draft FedRAMP Authorization Boundary Guidance, Version 2.0, released on July 13, 2021. The public comment period currently is open and closes on September 13, 2021.…
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“What’s In A Name?”: Federal Circuit Holds Claims Court Blurred Distinction Between ‘Size Protests’ And ‘Bid Protests’ In Dismissal For Failure To Exhaust Administrative Remedies
Many small businesses learn the hard way that a “bid protest” and a “size protest” differ in much more than name only. Whereas generally a “bid protest” challenges agency action taken in connection with a procurement and can be timely brought at the Government Accountability Office (“GAO”) or in the U.S. Court of Federal Claims (“COFC”) after award, a “size protest” challenges an offeror’s eligibility as “small” for a small business set-aside and must be filed with the U.S. Small Business Administration (“SBA”) within 5 days of contract award; otherwise, a disappointed offeror will forfeit its right to challenge…
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Right on Time – NIST Releases Definition of “Critical Software” Per Biden’s Cybersecurity Executive Order
As called for in the May 12, 2021 Cybersecurity Executive Order (“EO”) released by the Biden Administration (discussed here), NIST met its deadline to release a definition of “critical software” within 45 days of the date of the Order. The determination of what constitutes “critical software” is a key step in the process set forth in the Order for securing the software supply chain, which will culminate sometime next year in new Federal Acquisition Regulations for contractors that supply software.…
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