GovCon Reading List: December 2023

Federal government contracting can be challenging. Expert insights can help!

Every month in this newsletter, I publish the GovCon Reading List, a selection of the previous month's best expert-written articles on federal government contracting.

This month, you may be wondering what holiday gift to give that special government contractor in your life. The search is over! Just print this column, tie a red bow around it, and leave it under the tree. Holiday shopping complete! It's the gift guaranteed to leave the lucky recipient saying, "this is so, um . . . unexpected."

Here's the GovCon Reading List for December 2023!

• 2023 Bid Protest Report by Shane McCall with Koprince McCall Pottroff LLC . The Government Accountability Office has published its annual look at bid protests in the previous year, and at first glance, the numbers might be startling--protests and sustains both increased dramatically. This article discusses the numbers and explains why these numbers are a bit of an outlier.
• Protecting Our Nation’s Data, Part 1: Cybersecurity Standardization Requirements for Unclassified Federal Information Systems by Isaias "Cy" Alba, IV , Joseph Loman & Daniel Figuenick III with PilieroMazza PLLC . The FAR Council has issued a proposed rule to standardize cybersecurity requirements for unclassified Federal Information Systems. This article, the first in a series, addresses important aspects of the proposed rule.
• Protecting Our Nation’s Data, Part 2: Implementing Cyber Threat Incident Reporting and Information Sharing by Isaias "Cy" Alba, IV , Joseph Loman & Daniel Figuenick III with PilieroMazza PLLC . The follow-up to the article above, this article focuses on the FAR Council's proposal for security incident reporting and related matters.
• National Security and Government Contractor Implications of Biden AI Executive Order by Tina Reynolds , Charles Capito and others with Morrison Foerster . The Administration's widely-anticipated Executive Order on Artificial Intelligence has wide-ranging ramifications for national security and government contracts. This article takes a look.
• Dear DoE Contractors, DEAR Comments Open by Trevor Skelly with SGP Small Business Advisory . The Department of Energy is proposing a massive overhaul to its acquisition regulations. For DOE contractors, now is the time to review the proposal and submit comments.
• Understanding DCAA’s New Audit Rules: A Simplified Analogy for Cost Accounting Practices by Taireez N. with Left Brain Professionals Inc. The Defense Contract Audit Agency recently updated its guidance to auditors on calculating the cost impact to the government of a contractor’s unilateral change in cost accounting practice. This article takes a look at the new guidance and its impact on contractors.
• ASBCA Issues Annual Report, Providing Data on How Often Contractors Prevail by Evan Sherwood and Peter Hutt with Covington & Burling LLP . The Armed Services Board of Contract Appeals has issued its annual report for the 2023 fiscal year, and it's packed with interesting statistics--including that contractors prevailed (in whole or in part) in more than two-thirds of cases.
• Department of Homeland Security Using Cybersecurity Readiness as an Evaluation Factor by Eric Crusius with Holland & Knight LLP . The DHS announced that "cybersecurity readiness" will be included as an evaluation factor in contracts involving the use of Controlled Unclassified Information.
• DoD Mentor-Protégé Program Solidified under Proposed Rule by Alexander Major and Philip Lee with McCarter & English, LLP . The DoD has issued a proposed rule to permanently codify the DoD Mentor-Protege Program and make several other important changes, including lowering the barriers to entry.
• "Extremely Difficult" for for Franchises to Obtain VOSB & SDVOSB Certifications, Says SBA OHA by Steven Koprince in GovCon Roundup. The SBA's strict control requirements for veteran-owned small businesses make it extremely difficult for franchises to obtain VOSB and SDVOSB certifications, according to the SBA's Office of Hearings and Appeals. This article discusses a recent case involving a franchise VOSB applicant and contains more references to Prince than all the other articles on this list, combined.
• DCAA Finally Takes a Step in the Right Direction with Cost Impact Guidance by John Shire with Redstone Government Consulting, Inc. The DCAA has issued a memorandum addressing a revision to its audit guidance related to the audit of contractor cost impact calculations for unilateral cost accounting practice changes. This article breaks down the memorandum--and explains why it's "about time" DCAA issued this guidance.
• New DFARS Rule Prohibits Many Flow-Downs in Commercial Subcontracts by Steven Koprince in GovCon Roundup. Heads up, DoD prime contractors: under the revised DFARS clause resulting from a new final rule, flowing down many FAR or DFARS clauses to commercial items subcontractors is prohibited.
• Room for Improvement: Statistics Suggest It is Unclear if Large Businesses are Meeting Small Business Subcontracting Goals by John Holtz with Koprince McCall Pottroff LLC . An eye-opening new GAO report suggests that the government needs better oversight when it comes to monitoring large primes' compliance with their subcontracting goals.
• Market Shortages are No Excuse for Non-Performance by Robbie Pratt and Jane Han with Fox Rothschild . In this article about a recent Armed Services Board of Contract Appeals decision, the authors advise contractors to "carefully consider the volatility of market conditions before submitting firm-fixed price contract proposals to the Federal Government."
• New Case Mid-America Challenges the DOT’s Use of a Rebuttable Presumption by Christopher Slottee with Schwabe. In a lawsuit making arguments similar to those made in the Ultima 8(a) Program decision, plaintiffs are challenging the use of a rebuttable presumption of disadvantage in the Department of Transportation's Disadvantaged Business Entity (DBE) program.
• In the Office Auto-Reply Emails for a Hybrid Work Schedule by Leslie Ylinen in McSweeney's Internet Tendency. "I am in the office today, technically able to respond to email, but unlikely to do so." This month's nothing-to-do-with-contracting humor piece has a few tongue-in-cheek suggestions for auto-reply emails for professionals who are in the office, but not exactly eager to address their inboxes.

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Boring but important disclaimer: The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.?