More Confusion On What Costs Are Allocable To Government Contracts
Client Alert | 1 min read | 01.16.09
In a puzzling decision about what appear to be independent research and development (IR&D) costs associated with creating a new software product, Teknowledge Corp. v. U.S. (Jan. 7, 2009), neither party seems to have cited the relevant allocation and allowability rules in Cost Accounting Standard 420, incorporated by reference in FAR 31.205-18, and the CFC's opinion does not mention them, instead sustaining disallowance of the costs on the ground that they did not "benefit" the government. Under the provisions of CAS 420, IR&D costs of a business unit are generally allocable to the contracts of that business unit, and it is not clear based on the facts as described in the opinion whether the costs at issue were incurred in a commercial business unit, a home office, or a government contracts business unit, so it is impossible to determine whether the costs would have been allocable to and allowable on the contracts of the Government business unit if CAS 420 had been appropriately applied.
Insights
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On June 9, 2026, the U.S. Department of Justice (DOJ) issued a formal opinion concluding that the Equal Opportunity Employment Commission’s (EEOC) existing interpretations of Title VII of the Civil Rights Act of 1964 (Title VII) disparate-impact liability, including the Uniform Guidelines on Employee Selection Procedures (UGESP), are unconstitutional. According to the opinion, EEOC’s prior interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer’s likely intent, rather than treating disparate impact as an evidentiary mechanism to “smoke out” intentional discrimination. DOJ found that this approach functions as a “qualified racial-proportionality mandate” that places “a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” The opinion fulfills one mandate of Executive Order 14281, which rejected disparate-impact liability insofar as it “creates a near insurmountable presumption that unlawful discrimination exists wherever there are any differences in outcomes among different [demographic groups].”
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