Study Guide

In July 2022, the DOJ released a Comprehensive Cyber Review report (the “Review”) summarizing its assessment of its own cyber-related activities and including recommendations focused on its cyber-centric “offensive” (i.e., cyber threat investigations and enforcement) and “defensive” (i.e., approaches to risk mitigation) activities. A key finding declared that “many of the cybersecurity provisions and standards set forth for federal contractors were found to be insufficiently rigorous.” The Review went on to note that where contractual cybersecurity standards were not met, the Department’s Civil Cyber-Fraud Initiative (CCFI), first announced in October 2021, would continue to utilize the False Claims Act (FCA) to pursue cybersecurity-related cases against government contractors and grant recipients. The Review comes on the heels of a recent FCA settlement with Aerojet Rocketdyne Inc. Many colleges, universities and independent research institutions are now in the midst of planning for enhanced research security obligations arising out of the January 2022 National Security Presidential Memorandum 33 Implementation Guidance (the “NSPM-33 Guidance”).

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On July 9, 2024, the White House Office of Science and Technology Policy (OSTP) released the long-awaited “Guidelines for Research Security Programs at Covered Institutions” (the Guidelines). The Guidelines are intended to assist federal agencies in their efforts to implement certification requirements for “Covered Institutions” intended to ensure that such institutions have “established and operate” Research Security Programs (RSPs) addressing four specific areas, each of which is discussed below.

Over the past three plus years, the issue of foreign influence over U.S. government-sponsored research has been front and center for the research community. There have been numerous high-profile prosecutions of professors, and civil enforcement actions against research institutions. Presidential Memorandum 33 (NSPM-33) set forth the goal of “strengthen[ing] protections of United States Government-supported R&D against foreign government interference and exploitation" while "maintaining an open environment to foster research discoveries and innovation that benefit our nation and the world.” In August 2021, the Office of Science and Technology Policy (OSTP) tasked the National Science and Technology Council with promulgating “clear and effective” NSPM implementation guidance. NSTC issued its guidance document on January 3, 2022, which includes a five-part platform to enhance research security.  

Yesterday, the U.S. District Court for the Southern District of Georgia granted a nationwide preliminary injunction against enforcement of Executive Order 14042 involving the vaccine mandate for federal contractors. The decision adds to a string of cases decided in the past few weeks blocking vaccine requirements issued by the administration. We have attached a link to the case here. Federal courts have now blocked the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard with its vaccinate-or-test mandate and the vaccination requirement for healthcare workers contained in an interim final rule issued by the Centers for Medicare & Medicaid Services (CMS).

President Biden’s Executive Order 14042 (EO 14042) requires covered federal contractor employees to be fully vaccinated against COVID-19 by January 18, 2022, if they are not entitled to an accommodation due to disability or religion. Because many colleges and universities have covered contracts with the federal government, they will need to require that their employees comply with the federal vaccination mandate, and, in many cases, have already announced their intentions to do so. Whether certain employees of these colleges and universities count as covered employees, and are subject to the mandate, must be determined on a case-by-case basis. But the mandate has a broad scope and likely applies to many, if not all, employees. Covered employees generally include those who work on or in connection with the covered contract and others who work at a covered contractor workplace even if they do not work on the contract itself. Employees’ work related to human resources, billing and legal review counts as work in connection with the contract.