Government Contracts & Investigations Blog

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Welcome back to the Cost Corner, where we provide practical insight into the complex cost and pricing requirements that apply to Government contractors. This is the second article in a multi-part series on the Federal Acquisition Regulation (FAR) Cost Principles applicable to contracts with commercial organizations. The previous Cost Corner addressed the applicability of the Cost Principles and their general criteria for determining the allowability of costs. This Cost Corner focuses on the allocation of direct and indirect costs. We will address the applicable Cost Principles (FAR 31.202 and FAR 31.203) as well as the overlapping provisions of the Cost
Continue Reading Government Contracts Cost and Pricing: Allocation of Direct and Indirect Costs

On November 30, 2023, the Inspector General of the Department of Defense (“DoD IG”) released a Special Report: Common Cybersecurity Weaknesses Related to the Protection of DoD Controlled Unclassified Information on Contractor Networks (the “Report”). Between 2018 and 2023, the DoD IG reports it conducted five audits related to DoD contractors’ protection of Controlled Unclassified Information (“CUI”), in accordance with the cybersecurity requirements in National Institute of Standards and Technology (“NIST”) Special Publication (“SP”) 800-171. Additionally, the Report states that since 2022, the DoD IG has provided support/assessments for five investigations under the Department of Justice’s (“DOJ”) Civil Cyber Fraud
Continue Reading DoD IG Report Provides Insight Into Common Missteps When Protecting CUI

On December 12, 2023, the Department of Justice (“DOJ”) issued guidance related to the process by which companies may request the United States Attorney General authorize delays of cyber incident disclosures, pursuant to a new Securities and Exchange Commission (“SEC”) rule. As a reminder, the SEC rule (which went into effect on Dec. 18, 2023) requires companies to disclose material cyber incidents via Form 8-K within four days of making a materiality determination. Our colleagues previously discussed the SEC rule and its new cyber reporting requirements here.
Continue Reading For Limited Use Only: Guidance on National Security Delay Determinations under the SEC Cyber Reporting Rule

The COVID-19 Pandemic wreaked havoc on many businesses. For others, though, it created new opportunities to sell to the federal government, including an unprecedented demand for personal protective equipment (“PPE”), COVID tests, and vaccines. Perhaps your company found itself as a first-time government contractor, or you started selling products to the government that you had never sold before. If your government contract went smoothly, congratulations! If not, you may be left wondering who will pay for unexpected increased costs of performance, or how you can defend against the government’s claims to recoup overpayments or liquidated damages. 
Continue Reading Don’t Leave Money on the Table from Your Pandemic-Era Healthcare Procurement Contract

The government buys billions of dollars in healthcare-related goods and services every year, and no government procurement is perfect. In a business where every contract award matters, healthcare contractors should be aware that they may have a second chance at winning a contract if the government agency made a material error in its procurement process. The question disappointed healthcare contractors should ask is whether the agency acted unreasonably in its evaluation and selection of the awardee. If the answer is “yes”—or even “maybe”—healthcare companies may file a bid protest at the Government Accountability Office (“GAO”) or the U.S. Court of Federal
Continue Reading A Second Chance to Win Your Government Healthcare Contract

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 June 9, 2023, OMB released additional guidance on the implementation of OMB Memorandum M-22-18, Enhancing the Security of the Software Supply Chain through Secure Software Development Practice, which requires that federal agencies only use third-party software that is provided by software producers that attest compliance with the secure software development guidance issued by the National Institute of Standards and Technology (NIST). Agencies must obtain a self-attestation from the software producer before using any software that “affects” government information or will be used on government information systems. The requirements are discussed in more detail here.
Continue Reading White House Provides New Guidance & Extends Deadline for Secure Software Attestations