Thus, even if a contractor did not elect to participate in Disaster Recovery Purchasing at the time of contract award, contractors are now permitted to accept any orders by state and local governments. However, whether to accept any state or local government order is voluntary not mandatory. Continue reading “VA Federal Supply Schedule Contracts and the Coronavirus”
The largest active buyer in the market right now remains the federal government. FSS is an important tool for the government to get supplies and services, but do not be fooled. With these potential opportunities, there also are potential risks for FSS contractors that fail to follow the terms and conditions of their FSS contracts and/or seek to cut corners.
As is often the case, FSS vendors go above and beyond to provide services or deliver supplies to federal agencies to respond to emergency situations like the COVID-19 pandemic. As is also the case, months later, after the dust settles, agency offices of inspector general arrive to audit contracts. Inevitably, in the effort to expeditiously fill government orders, things get overlooked or ignored, and “but I was helping the agency fulfill its mission in response to a pandemic” is not a defense that will resonate with government auditors.
Based upon our experience, here are some tips for FSS vendors to follow and/or traps to avoid: Continue reading “GSA Federal Supply Schedules Contracts and the Coronavirus: Risks and Rewards”
Set forth below is a checklist for contractors that have received (or believe they may receive) a rated order from a federal government agency:
1. Memorialize Standard Operating Procedures (“SOP”)
Effectively managing rated orders requires careful attention, particularly given the operational disruptions from coronavirus COVID-19. A company should consider establishing (or updating) SOPs for rated orders covering the following:
Continue reading “Defense Production Act: Government Contractor Cheat Sheet”
What Is the CMMC?
The CMMC is a certification system that all DoD prime and subcontractors must comply with to be eligible to compete for and perform future DoD contracts. Under the new CMMC requirements, an accreditation body tapped by DoD will begin training third-party assessors in the spring of 2020, who will in turn certify defense contractors under the CMMC. There will be five CMMC certification levels, of ascending sophistication:
The contractor must comply with a combination of the following cybersecurity safeguards, depending on the certification level a contractor wants to achieve: (1) FAR 52.204 (Basic Safeguarding of Covered Contractor Information Systems); (2) NIST Special Publication 800-171 Revision 1 (“NIST Requirements”); (3) select subsets of a supplement to the NIST Requirements called NIST SP 800-171B; and (4) up to 171 “practices” identified in the CMMC. Though this may sound like a lot for contractors to process, DoD has released helpful appendices that put many of the requirements in easy-to-understand terms. Continue reading “New DoD Cybersecurity Regulations Are Coming—Is Your Company Ready?”
Merle M. DeLancey Jr., Justin A. Chiarodo, and Robyn N. Burrows
On March 10, 2020, the Department of Commerce extended the deadline for U.S. companies to stop doing business with Huawei Technologies Co. Ltd. and its non-U.S. affiliates. The deadline has been extended multiple times and is now May 15, 2020. Under the extension, U.S. businesses can continue to work with Huawei on the operation of existing networks and mobile services, including cybersecurity research considered critical for network reliability.
Huawei was added to the Commerce Department’s Bureau of Industry and Security “Entity List” in May 2019. The Entity List includes foreign entities who have engaged in activities sanctioned by the State Department and activities contrary to U.S. national security and/or foreign policy interests.
In addition to the extension, the Commerce Department is seeking public comments through March 25, 2020, regarding the continuing need for, and scope of, possible future extensions concerning Huawei. The multiple extensions and new request for public comments are intended to allow time for companies and persons to shift from Huawei or its affiliates to alternative sources of equipment, software, and technology.
Continue reading “For Part B of Section 889, Is Compliance by August 13, 2020, Realistic?”Merle M. DeLancey Jr., Justin A. Chiarodo, and Robyn N. Burrows
Part B of Section 889 takes effect August 13, 2020. The ban prohibits the federal government from contracting with any “entity that uses” telecommunications and video surveillance products or services from Huawei Technologies Company Ltd. (Huawei) and four other Chinese entities, including their affiliates and subsidiaries (we’ve previously covered Section 889 here and here). This post examines recent industry feedback during a public meeting with the Department of Defense (“DoD”) and provides five compliance recommendations pending forthcoming rulemaking.
On March 2, 2020, DoD held a public meeting on Part B. Several trade associations gave feedback, and raised five major concerns: 1) the broad scope of the rule; 2) the inability of many contractors to meet the August 2020 compliance deadline; 3) whether the rule will apply outside the United States; 4) whether the term “use” would include a reseller’s commercial sales of prohibited products, thus precluding a supplier from contracting with the federal government; and 5) whether the “entity” subject to the ban includes only the legal entity executing the contract with the federal government, or also its affiliates and subsidiaries. Unfortunately, DoD did not indicate when an interim rule might issue.
Continue reading “Five Steps to Take to Prepare for Part B of the Section 889 Ban”
Merle M. DeLancey Jr., Justin A. Chiarodo, and Robyn N. Burrows
Background
Section 889 of the 2019 National Defense Authorization Act (“NDAA”) imposed major new supply chain restrictions on the use of “covered” telecommunications products and services from Huawei Technologies Company Ltd. and several other Chinese entities and their affiliates.
Part A of Section 889 became effective in August 2019 and bans companies from providing covered technology to the Federal Government. Under Part A, a company cannot sell any product or provide any service to the government that uses covered technology. Compliance with Part A requires contractors to flow down the prohibition to subcontractors.
Continue reading “Are You Prepared to Comply with the Fast Approaching Prohibition on the Use of Banned Telecommunications Equipment?”Merle M. DeLancey Jr., Jay P. Lessler, and James R. Staiger
As a result of the Acetris decision, federal contractors seeking to comply with or maintain compliance with the TAA are facing many questions. Some of the more prominent questions are below. Continue reading “After Acetris Decision, Trade Agreements Act Compliance Questions Abound: Contractors Need Guidance”
Merle M. DeLancey Jr., Jay P. Lessler, and James R. Staiger
For years, generic drug manufacturers that manufacture drugs in the United States from API produced in India and China have been precluded from selling their drugs to the U.S. Government under the TAA. The Federal Circuit’s Acetris decision opens up the U.S. Government market for generic drugs manufactured in the U.S. from API produced in India and China.
Justin A. Chiarodo and Robyn N. Burrows
A very Happy New Year to our GovCon Navigator readers! Further expanding recent supply chain restrictions across federal procurement, the Department of Defense (“DoD”) issued an interim rule prohibiting DoD from procuring equipment or services from certain Chinese entities (and possibly Russian) if used to carry out DoD nuclear deterrence or homeland defense missions. The rule builds on the Section 889 supply chain restrictions we previously covered in a prior blog post.
What should contractors do now given the interim rule is already in effect? Contractors should first evaluate their existing contract portfolios for covered missions and take immediate steps to eliminate all covered products from their supply chain (and find alternate sources of supply). If the rule might impact contract performance, you should be prepared to address this with the appropriate counterparty. And given the requirement for compliance certifications that mirror Section 889, contractors should also harmonize monitoring and compliance with their existing supply chain compliance programs. Among other things, this should address the requirement to obtain compliance certifications from downstream subcontractors and suppliers.
Read on for the specifics.
