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Government Contracts Regulatory and Legislative Update: April


CBCA Issues Proposed Rules of Procedure for FEMA Arbitrations

On March 5, 2019, the Civilian Board of Contract Appeals (CBCA) issued proposed rules of procedure for Federal Emergency Management Agency (FEMA) public assistance grant arbitrations under the Stafford Disaster Relief and Emergency Assistance Act. The rules, promulgated in 48 CFR Part 6106.601-613, address initial conferences, hearings, evidence, and filings, among other things. Comments on the proposed rules are due by May 6, 2019.

OFPP Seeks Comments on Cost Accounting Standards and Generally Accepted Accounting Principles

On March 13, 2019, the Office of Federal Procurement Policy (OFPP), Cost Accounting Standards Board invited public comments on a Staff Discussion Paper (SDP) regarding conformance of the Cost Accounting Standards (CAS) to Generally Accepted Accounting Principles (GAAP). The SDP discusses preliminary benefits and drawbacks of CAS-GAAP conformance, provides a roadmap for future CAS-GAAP analysis, and offers an initial analysis of CAS 408 (Accounting for costs of compensated personal absence) and CAS 409 (Cost accounting standard depreciation of tangible capital assets). Moving forward, the Board’s analysis will prioritize standards focusing primarily on cost measurement and assignment of costs to accounting periods. This SDP is the first step in the rulemaking process and the full text of the SDP is available here. Comments on the SDP are due by May 13, 2019.

USAID Issues Proposed Rule to Revise Incentive Awards Program for Personal Services Contractors

On March 18, 2019, the U.S. Agency for International Development (USAID) issued a proposed rule to amend the Agency for International Development Acquisition Regulation (AIDAR) appendices D and J to allow USAID to provide incentive awards to Personal Services Contractors (PSCs) who demonstrate extraordinary performance of services under their contract. Comments on the proposed rule are due by May 17, 2019.

USAID Issues Proposed Rule to Increase Oversight of Contractor Acquisition and Use of IT Resources

On March 21, 2019, the USAID issued a proposed rule to amend AIDAR to refine information security- and information technology-related policies and requirements for contractors, in accordance with the Federal Information Technology Acquisition Reform Act. Importantly, USAID proposes to add AIDAR subpart 739 to include a broader definition of information technology, and proposes to revise clause 752.204-72, to be titled Homeland Security Presidential Directive-12 and Personal Identity Verification, with new restrictions and reporting requirements.

USAID also proposes to add the following new clauses to AIDAR subpart 752.239:

  • Limitation on Acquisition of Information Technology, requiring prior contracting officer approval for all IT acquisition under an award as defined in the clause.
  • Software License, prohibiting automatic software license renewal. Such renewals require mutual party agreement or Government exercise of an option renewal clause.
  • Information and Communication Technology (ICT) Accessibility, requiring contractors implement Section 508 of the Rehabilitation Act of 1973, as amended.
  • Use of Information Technology Approval, allowing contractors to acquire only contract-specified IT.
  • Skills and Certification Requirements for Privacy and Security Staff, requiring contractor personnel performing certain IT and Information System security responsibilities to possess specified credentials and certifications.

Comments on the proposed rule are due by May 20, 2019.

DoD Issues Updated Federal Prison Industries List of Product Categories

On March 26, 2019, the U.S. Department of Defense (DoD) issued a notice regarding publication of the updated annual list of product categories for which the Federal Prison Industries’ share of the DoD market is greater than five percent, as statutorily required. DoD must procure the listed product categories and the products included in those categories using competitive procedures per Defense Federal Acquisition Regulation Supplement (DFARS) 208.602-70. Contracting officers must consider a timely FPI offer for these categories when conducting the competition, and must include FPI even if the procurement would have been a Federal Acquisition Regulation (FAR) Part 19 set-aside. The new FPI list is effective March 28, 2019. 

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About this Author

Jessica Abrahams Government Contracts Lawyer

Jessica C. Abrahams, chair of the firm’s Government Contracts Team, offers U.S. and international clients comprehensive counsel on issues concerning litigation, compliance, and transactions. Her clients span a variety of industries, from biodefense and health care to information technology, defense products and services, supply chain and infrastructure development. She regularly advises global government contractors, Indian nations, nonprofit organizations and small business owners on contracting best practices and risk mitigation techniques.

A trial lawyer with a...

John Horan Government Contracts Attorney

John G. (Jack) Horan represents clients in litigation with the government; internal investigations of contract, regulatory, civil and criminal violations; and compliance with contractual, regulatory, civil and criminal requirements. He is an experienced practitioner in government contracts, litigation, and white collar criminal defense.

Jack has a wealth of litigation experience, including acting as lead counsel in over 30 jury trials and hundreds of criminal, civil, administrative and arbitration hearings, as well as presenting oral arguments on eight appeals before the Federal and District of Columbia Courts of Appeals.

As a criminal defense lawyer, Jack represents companies and employees in closely regulated industries under investigation or indictment for criminal offenses arising from regulatory violations. He has represented clients before federal and state grand juries and in criminal proceedings in federal and state courts. His experience includes defending companies and employees accused of crimes under the False Claims Act, the False Statements Act and the Foreign Corrupt Practices Act, as well as export control, import, bribery, gratuities, conflict of interest and federal election laws.

Jack has litigated contract and fraud cases against the government, prime contractors and subcontractors before the Board of Contract Appeals, the United States Court of Federal Claims, and federal and state courts, as well as in arbitration proceedings. He has represented contractors protesting and defending the award of contracts before the Court of Federal Claims, the Government Accountability Office, federal agencies and state forums, and has also represented clients in suspension and debarment proceedings brought by federal and state agencies.

Jack possesses significant experience in assisting clients with compliance with requirements in solicitations, contracts, regulations, and civil and criminal statutes applicable to government contracts. He has drafted and reviewed corporate compliance programs for government contractors and businesses ranging from Fortune 500 companies to emerging businesses. Jack has also conducted internal investigations of contract compliance, fraud, government security violations, employee kickback schemes, theft of corporate and government property, organizational conflicts of interest, and violations of import and export laws.

Before entering private practice, Jack served as an Assistant U.S. Attorney for the District of Columbia. In this role, he supervised criminal investigations by local and federal law enforcement authorities and represented the United States in jury trials, hearings and appellate arguments in the District of Columbia and federal courts.

Jack serves as an Associate Editor of the American Bar Association’s Public Contract Law Journal and is the author of “Legal Forum,” a monthly column in Contract Management magazine, a publication of the National Contract Management Association (NCMA). Jack also serves as General Counsel and an ex officio board member to NCMA. Jack is also an adjunct professor at the Catholic University of America, where he teaches “Legal Aspects of Government Contracting” in the university’s Federal Acquisition and Contract Management master’s degree program.

Dana B. Pashkoff, Washington DC, Partner, information technology, telecommunications, homeland security, aerospace/defense industries, government contractors, risk management counseling

Dana B. Pashkoff provides legal counsel to government contractors in the information technology, telecommunications, homeland security, and aerospace/defense industries. Dana has litigated numerous contract claims and bid protests before federal district courts, the U.S. Court of Federal Claims and the Government Accountability Office. She also provides compliance counseling to government contractors.

Dana has significant experience in risk management counseling, specifically in the area of sales of products and services to the...

Michelle Francois Government Contracts Attorney

Michelle Y. Francois assists clients with government contracts matters such as bid protests, claims and procurement research, and federal litigation. Michelle has significant experience representing public and private clients in various stages of litigation. She drafts legal documents, represents clients in court conferences and other administrative proceedings, takes depositions, and represents clients in mediations and settlement negotiations. Michelle has represented municipalities in litigation against public and private entities in §1983, land use, and taxation...