Can a Commercial Software License Be Valid and Enforceable When It’s Not Included in Your Government Contract?

Software manufacturer CiyaSoft recently appealed to the Armed Services Board of Contract Appeals (ABSCA) when the Army violated the terms of their commercial software license. The Army countered that the licensing agreement, which had been shipped with the CD-ROMs containing the software, was not included in the contract. Ultimately, the Board drew upon provisions in the FAR to inform their ruling in favor of the contractor. Software manufacturers who use shrink-wrap or click-on licensing agreements and hold contracts with the Federal Government will want to read on to learn about the implications of this ruling.  Continue reading “Can a Commercial Software License Be Valid and Enforceable When It’s Not Included in Your Government Contract?”

Pay Attention to these 7 Changes from the 2019 National Defense Authorization Act (NDAA)

Last month, the President signed Congress’ FY 2019 National Defense Authorization Act, calling for a host of adjustments to the rules of Federal procurement. Each year the NDAA updates programs and policy initiatives, often in response to complaints from either the Executive Branch or industry. Most updates will make their way into the FAR or the DoD FAR supplement. What follows is an overview of the most important changes you’ll want to know about.

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Can Agencies Rely on CBP Rulings in Enforcing the Trade Agreements Act?

A new ruling says that Federal agencies can’t always rely on country-of-origin rulings by Customs and Border Protection (CBP) when applying the Trade Agreements Act to their contracts. The case dealt with an acquisition of Hepatitis B pill by the Department of Veterans Affairs (VA). The difficulty in parsing the regulations suggests that they need revision, if not a complete rewrite.   Continue reading “Can Agencies Rely on CBP Rulings in Enforcing the Trade Agreements Act?”

DoD Continues to Tackle Acquisition Regulations from the 2017 NDAA

As we await the NDAA for 2019, DoD focuses on 2017 mandates aiming to ease requirements for commercial item companies. Despite Congress’ 1994 acquisition streamlining bill, the administrative burden for Defense contractors supplying commercial items to the Federal Government has grown quite cumbersome. Here is an update on DoD’s progress, and how the proposed changes may affect some Defense contractors.   Continue reading “DoD Continues to Tackle Acquisition Regulations from the 2017 NDAA”

The Legal Precedent for Contract by Conduct in the Public/Private Realm Doesn’t Support a Contract Here

Moda Health Plan, Inc. is one of dozens of insurers who sued when the Health and Human Services Department (HHS) failed to reimburse them for losses incurred as a result of participation in the healthcare marketplace set up by the Affordable Care Act (ACA). The Court of Federal Claims (COFC), and later the Federal Circuit, were tasked with determining whether there had been a contract by conduct set up between the Government and insurers. Despite success at the COFC, the Federal Circuit eventually denied Moda’s case. The case serves as a cautionary tale for companies considering entering into similar Government programs.  Continue reading “The Legal Precedent for Contract by Conduct in the Public/Private Realm Doesn’t Support a Contract Here”

What Happens When An Agency Doesn’t Disclose Solicitation Criteria?

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Recently, after losing a contract for full line food service with the Defense Logistics Agency, a company protested at GAO. At the heart of their protest was the fact that the agency had used a solicitation criterion to assess their proposal that hadn’t been shared with bidders during the solicitation. GAO was tasked with judging whether the procurement had been handled fairly, and ultimately, they sided with the losing bidder. GAO’s ruling has implications for contractors who find themselves surprised to lose out on contracts due to undisclosed evaluation criteria.  Continue reading “What Happens When An Agency Doesn’t Disclose Solicitation Criteria?”

A Debrief on the Latest DoD Regulatory Developments

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The National Defense Authorization Act (NDAA) is the name for a series of annual laws laying out the Department of Defense’s (DoD) budget for its various programs and activities. It also is a favorite vehicle for Congress to legislate how it wants DoD to operate (a companion bill, the Appropriations Act, actually funds the Department). As Congress debates the 2019 NDAA, the DoD continues to tackle tasks from previous bills. Three recent developments stemming from earlier NDAAs may be of particular interest to Defense contractors.  Continue reading “A Debrief on the Latest DoD Regulatory Developments”

5 New Rules for GAO Protests You Should Know

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On May 1, 2018 the Government Accountability Office (GAO), which hears and decides the majority of federal bid protests each year, made some important rule changes. Some of these changes can have significant implications for lawyers and the contractors they represent. Read on to learn more about the most important rule changes, and how they might affect you if you find yourself in a GAO protest.  Continue reading “5 New Rules for GAO Protests You Should Know”

What Happens When the Government Perceives a Cybersecurity Risk in Your Supply Chain

The Federal Government is amping up its efforts to mitigate threats to cybersecurity. You might think that the Department of Homeland Security would be the agency concerned with mitigating risk stemming from cyber threats. But a recent case at the Court of Federal Claims (COFC) shows that Government’s preoccupation with cybersecurity extends to all agencies. In this case, the Social Security Administration (SSA) needed new printers, but was determined to avoid supply chain risks that they felt one bidder’s offer posed. The COFC sided with the agency in this case, which raises the question whether the Federal Government should centralize such decisions.   Continue reading “What Happens When the Government Perceives a Cybersecurity Risk in Your Supply Chain”

How NDAA’s New Rules on Enhanced Debriefings May Bolster Defense Contractors

Companies who’ve lost out on a contract award can seek more information by requesting a debriefing, a post-award explanation of why they failed to secure a contract, with an opportunity to pose questions. But debriefings don’t always reveal enough information. Now, thanks to the 2018 National Defense Authorization Act (NDAA), DoD agencies must provide enhanced debriefings with the goal of helping bidders get more information sooner after learning they’ve lost a contract. How will enhanced debriefings affect the landscape of Defense acquisition, and does the new requirement pave the way for more meaningful debriefings for all FAR procurements?  

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