Clearing The Decks--FAR Council Finally Issues COTS Waivers Mandated By Clinger-Cohen Act of 1996
Client Alert | 1 min read | 01.23.09
Six years after the initial advance notice of proposed rulemaking, on January 15, 2009, the FAR Council issued its final rule identifying additional statutory requirements to be waived when the government purchases commercial, off-the-shelf equipment as narrowly defined in the Clinger-Cohen Act of 1996 (commercial items, sold in substantial quantities in the commercial marketplace, and offered to the government without modification), relieving COTS procurements from compliance with only one statute of significance--the Buy American Act, but significantly not the Trade Agreements Act (applicable to many of the GSA schedule and other contract vehicles under which the government buys COTS items)--and even then the new rule provides only a partial waiver: the item must still be "manufactured" (an undefined term) in the United States, but the origin of the components will no longer be relevant in determining the country of origin for COTS items. Neither this final FAR rule nor a separately published interim DFARS rule (that effectively provided a similar partial waiver) limits or revokes the existing waiver provided as a result of annual authorization act provisions wholly exempting from the Buy American Act information technology products that qualify under the broader definition for commercial items.
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Client Alert | 3 min read | 11.21.25
On November 7, 2025, in Thornton v. National Academy of Sciences, No. 25-cv-2155, 2025 WL 3123732 (D.D.C. Nov. 7, 2025), the District Court for the District of Columbia dismissed a False Claims Act (FCA) retaliation complaint on the basis that the plaintiff’s allegations that he was fired after blowing the whistle on purported illegally discriminatory use of federal funding was not sufficient to support his FCA claim. This case appears to be one of the first filed, and subsequently dismissed, following Deputy Attorney General Todd Blanche’s announcement of the creation of the Civil Rights Fraud Initiative on May 19, 2025, which “strongly encourages” private individuals to file lawsuits under the FCA relating to purportedly discriminatory and illegal use of federal funding for diversity, equity, and inclusion (DEI) initiatives in violation of Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025). In this case, the court dismissed the FCA retaliation claim and rejected the argument that an organization could violate the FCA merely by “engaging in discriminatory conduct while conducting a federally funded study.” The analysis in Thornton could be a sign of how forthcoming arguments of retaliation based on reporting allegedly fraudulent DEI activity will be analyzed in the future.
Client Alert | 3 min read | 11.20.25
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