Category: Justin A. Chiarodo

Deficient Administrative Record Leads Federal Court to Vacate 15-Year Debarment

Justin A. Chiarodo and Stephanie M. Harden

A recent federal court decision vacating a staggering 15-year debarment based on shortcomings in the administrative record offers a glimmer of hope to contractors facing exclusion from federal programs, and reinforces the importance that any final debarment decision be based on a fulsome record—particularly in “fact-based” debarments where there are disputed material facts. The big takeaway for contractors facing an exclusion is to ensure that the administrative record on which a debarment decision is based reflects all information showing why an exclusion is unwarranted (or unnecessary) to protect the Government.

Continue reading “Deficient Administrative Record Leads Federal Court to Vacate 15-Year Debarment”

How Is Your Domestic Preference Compliance? President Trump Signals More Scrutiny of “Buy American, Hire American” Practices

Justin A. Chiarodo and Stephanie M. Harden

President Trump signed an Executive Order yesterday, marking another step forward in his promotion of “Buy American” and “Hire American” policies. The Executive Order focuses on two areas: cracking down abuse of the H-1B guest worker program and promoting the purchase of American products in federal procurements. We tackle in this post the “Buy American” portion of the Executive Order, which is of particular importance to federal contractors. Continue reading “How Is Your Domestic Preference Compliance? President Trump Signals More Scrutiny of “Buy American, Hire American” Practices”

How a Clinton-Era Law Could Reduce Regulations on Government Contractors under President Trump

Justin A. Chiarodo and Philip Beshara

It is no secret that deregulation is a top priority for the Trump Administration and the Republican-led Congress. In the early weeks of governing together, President Trump and House Speaker Paul Ryan have dusted off the Congressional Review Act (“CRA”) as the tool of choice for undoing federal rules and regulatory initiatives implemented by the Obama Administration. The little-known but important law, enacted by President Clinton in 1996, provides Congress with the ability to enact legislation overturning certain federal agency rules. In the more than two decades on the books, the CRA has only been used to overturn a federal rule on one occasion when, in 2001, President George W. Bush signed a resolution overturning an ergonomics rule issued by the preceding administration. However, despite its past obscurity, the CRA is now more important than ever. Continue reading “How a Clinton-Era Law Could Reduce Regulations on Government Contractors under President Trump”

DHS Contractor? Pricey New Cybersecurity Requirements (and Hidden Risks) May Await You

Justin Chiarodo

The Department of Homeland Security (“DHS”) recently issued three new proposed cybersecurity regulations for DHS contractors which warrant careful attention. Although a freeze on new regulations by the Trump administration will likely delay any final agency action, and extensive comments and meaningful changes to any final rules are expected, these new regulations could radically impact the compliance landscape for DHS contractors. As with recent cybersecurity amendments to the Federal Acquisition Regulation (“FAR”) and Defense Federal Acquisition Regulation Supplement (“DFARS”) (which we’ve covered here and here), these proposed rules seek to impose more safeguarding, handling, reporting, and training requirements on covered contractors. We continue to see cybersecurity as a major business risk in the industry today, and recommend contractors pay close attention to their operational, technology, and risk management practices relating to cybersecurity. We highlight the key elements of the proposed rules below. Continue reading “DHS Contractor? Pricey New Cybersecurity Requirements (and Hidden Risks) May Await You”

Does Your Cybersecurity Program Satisfy Recent DFARS Amendments?

Justin Chiarodo

There is no question cybersecurity is a critical compliance and risk area for federal contractors. A seemingly endless stream of cyberattacks—on corporate databases, government servers, even baby monitors—shows the breadth of these problems and the need for action. Government contractors have the added challenge of specialized regulatory obligations, with compliance (or non-compliance) having a direct impact on the value of their business. Continue reading “Does Your Cybersecurity Program Satisfy Recent DFARS Amendments?”

Five Things Government Contractors Should Keep in Mind about Political Activities this Election Season

Justin Chiarodo and Stephanie M. Harden 

The 2016 election season is unlike any other in recent memory. But like elections past and yet to come, political contributions and lobbying remain a mainstay of the political process. This is particularly true in the federal government contracting community, which is heavily influenced by executive and legislative action (and inaction). Though we can expect the unexpected in the three months leading up to the election, we offer below five fundamental “do’s and don’ts” that government contractors should keep in mind to guide their political activities. Continue reading “Five Things Government Contractors Should Keep in Mind about Political Activities this Election Season”

SBA Final Rule Expanding Mentor-Protégé Program to Take Effect This Month

Justin A. Chiarodo and Christian N. Curran

After a long wait and much anticipation, the Small Business Administration (“SBA”) issued its final rule expanding the mentor-protégé program to all small businesses on July 25, 2016. The new rule broadly expands upon the existing 8(a) mentor-protégé program, and is projected to result in $2 billion in federal contracts to program participants. Though the final rule largely tracks the February 2015 proposed rule, which we previously wrote about here, the final rule does make some key changes, including changes regarding size certification and reporting. As the new rule goes into effect on August 24, 2016, contractors both large and small should prepare now to take advantage of what the newly expanded program has to offer. Continue reading “SBA Final Rule Expanding Mentor-Protégé Program to Take Effect This Month”

GSA’s Transactional Data Reporting Rule Ushers in a New Era

Merle M. DeLancey Jr. , Justin Chiarodo, and Philip Beshara

Last month, the General Services Administration (“GSA”) finalized a rule marking what the agency describes as the most significant development to its Schedules program in over two decades. The rule completely changes how GSA will analyze vendor pricing for products and services.

Under the rule, vendors will eventually be required to submit monthly transactional data reports with information related to orders and prices under certain GSA Schedule contracts and other vehicles. Along with the implementation of the new Transactional Data Reporting (“TDR”) requirement, GSA will relieve vendors from two preexisting compliance burdens—eliminating the Commercial Sales Practices (“CSP”) and Price Reductions Clause (“PRC”) reporting requirements when vendors begin submitting transactional data.

While vendors should welcome the relief provided from the elimination of two burdensome regulations, the shift to TDR will not be without cost and risk; and, the eventual efficiencies promised by GSA remain to be seen. Indeed, the impact of the change will likely extend beyond compliance burdens, with potential effects varying from the nature of False Claims Act suits to the potential publication of competitive information.

We summarize these and other key takeaways from the new rule below, and answer questions important to vendors as GSA rolls out this significant development. Continue reading “GSA’s Transactional Data Reporting Rule Ushers in a New Era”

NISPOM Conforming Change 2: What You Need to Know

Justin A. Chiarodo and Philip Beshara

The government recently issued long-awaited amendments to the National Industrial Security Program Operating Manual (“NISPOM”).  The amendments, known as Conforming Change 2, are targeted at combating insider threats and impose several new requirements warranting immediate action by contractors holding facility clearances.

There are four key elements to Change 2: (1) a mandated Insider Threat Program (“ITP”); (2) new cyber incident reporting requirements; (3) newly defined NISPOM components; and, (4) an updated standard for foreign-owned or controlled companies seeking access to proscribed information.  We summarized these changes and provide implementation suggestions below.

I. Insider Threat – Mandated Insider Threat Program

Change 2 requires cleared contractors to have a written Insider Threat Program plan no later than November 30, 2016.  The ITP must detect, deter, and mitigate insider threats consistent with the ITP requirements currently imposed on executive branch agencies (as set forth in Executive Order 13587 and the National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs). Continue reading “NISPOM Conforming Change 2: What You Need to Know”

Coming to a Government Contract Near You: Mandatory Information Safeguarding Requirements

Justin A. Chiarodo,  Philip E. Beshara, and Heather L. Petrovich

The government recently finalized a sweeping amendment to the Federal Acquisition Regulation (“FAR”) that will impose basic information system safeguarding requirements on many federal acquisitions, marking the latest in the continuing government effort to regulate and enhance cybersecurity protections in the industry. The Final Rule, effective June 15, 2016, imposes fifteen basic safeguarding requirements for contractors with information systems containing information provided by, or generated for, the government under a federal contract.

Though many contractors likely maintain information security standards that meet or exceed the new rule, they should confirm their compliance status by assessing these requirements against their current cybersecurity compliance program (to help mitigate the risk of a breach of contract claim or more serious enforcement action). This should include confirming that the requirement is flowed down to subcontractors where appropriate. Continue reading “Coming to a Government Contract Near You: Mandatory Information Safeguarding Requirements”

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