In the National Defense Authorization Act (NDDA), enacted by Congress on 1 January 2021, the U.S. Treasury Department (Treasury) was directed to establish a national registry of beneficial owners of companies operating in the United States.  As a result, on 1 January 2024, Treasury launched a website under https://www.fincengov.boi to implement the new “beneficial ownership” reporting requirement, as called for in the Corporate Transparency Act (CTA), with the latter being part of the NDAA.

The CTA requires certain companies operating in the United States to report their beneficial owners to Treasury. Except for 23 categories of exempted companies, most notably from regulated industries which already require beneficial ownership reporting, e.g. the banking industry and publicly traded companies, companies required to file the report, referred to as “Reporting Companies”, are grouped into two categories, namely:

–  Domestic reporting companies are corporations, limited liability companies, and any other entities created by the filing of a document with a secretary of state or any similar office in the United States.

– Foreign reporting companies are entities (including corporations and limited liability companies) formed under the law of a foreign country that have registered to do business in the United States by the filing of a document with a secretary of state or any similar office.

The term “beneficial owner” is defined with respect to natural persons.  A beneficial owner is an individual who, either directly or indirectly, i) exercises substantial control, e.g. as the president, over the reporting company, or ii) owns or controls 25% or more ownership interest in the reporting company.

The deadline for filing the report varies depending on the date the Reporting Company was created or registered to do business in a jurisdiction within the United States.  The following three deadlines apply:

i) a reporting company created or registered to do business before January 1, 2024, will have until January 1, 2025, to file its initial report.

ii) a reporting company created or registered in 2024 will have 90 calendar days to file after receiving actual or public notice that its creation or registration is effective.

iii) a reporting company created or registered on or after January 1, 2025, will have 30 calendar days to file after receiving actual or public notice that its creation or registration is effective.

The CTA requires the reporting company to identify the name, address, and tax number of the reporting company.  For those individuals qualifying as beneficial owners, the name, current residential address, date of birth and an “image” of an identifying document, e.g. a passport, must be provided in the report.

The General Accountability Office (GAO) filed its annual report to Congress summarizing the protest filings made during the fiscal year from October 1, 2022 thru September 30, 2023. According to the report, dated October 26, 2023, the GAO received 1,957 protests, 38 cost claims and 30 requests for reconsideration. In comparison to the previous fiscal year, the protest filings increased 22 percent. The report notes that a “significant number” of protests were not decided on the merits by the GAO on account of voluntarily “corrective action” taken by the Agency. For protest filings in which the GAO addressed the merits of the protest grounds, 31 percent of the protests were sustained. The most common grounds for sustaining a protest were unreasonable technical evaluation, flawed selection decision and unreasonable cost or price evaluation. The overall “effectiveness rate” of the protest filings was 57%, which includes both those filings sustained by the GAO and those where the Agency took corrective action.

On June 2, 2023, the Federal Acquisition Regulatory Council issued a new contract clause prohibiting use of the ”Tik Tok” social networking application on “information technology” owned or managed by the Federal Government.    The clause, entitled “Prohibition on a ByteDance Covered Application (Jun 2023)”, is contained in the Federal Acquisition Regulation (“FAR”) under FAR 52.204-27.  Government contractors can expect Federal Agencies to add the new clause to existing contracts through a contract modification.  Prime contractors are required to “flow down” the new clause to subcontracts.

Following issuance by the Department of Defense of Final Rule No. 87 FR 15808 in March of 2022, unsuccessful offers on negotiated contracts, task and delivery orders valued at more than $10 million are able to submit follow-on questions related to a “required” post-award debriefing provided by the procuring Agency. Under the new procedures set forth in the Final Rule, the procuring Agency shall provide unsuccessful offerors “an opportunity to submit additional written questions related to the required debriefing not later than 2 business days after receiving the postaward debriefing.” If the unsuccessful offeror makes a timely submission of follow-on questions, then debriefing period will conclude when the “agency delivers its written response.” The Final Rule calls for the Agency response within 5 business days after receipt of the follow-on questions.

The Enhanced Post Award Debrief provides unsuccessful offerors not only an important tool to clarify issues relating to the Agency award decision, but also additional time to consider whether to protest the award decision.