Government Contracts Legal Forum

NDAA Lobbying Restrictions – Not As Onerous As Many Seem to Fear

Posted in Ethics & Compliance
David B. RobbinsPeter J. Eyre

There is a substantial amount of confusion and concern about Section 1045 of the 2018 National Defense Authorization Act (NDAA), entitled “Prohibition on lobbying activities with respect to the Department of Defense by certain officers of the Armed Forces and civilian employees of the Department following separation from military service or employment with the Department.”  As with other acquisition-oriented, late breaking additions to the NDAA in years past (like acquisition prohibitions following felony convictions of companies or principals that were so broad that an executive speeding 15 miles an hour over the limit in Virginia, which is a felony, could eliminate the company from eligibility for contracts), guidance in Section 1045 is not as complete as industry would like.  But the rule is not terribly burdensome, either.

Very senior uniformed and civilian Department of Defense employees such as General Officers and their civilian equivalents (presumably members of the Senior Executive Service), face restrictions on “lobbying activities” and “lobbying contacts” with respect to the Department of Defense.  Section 1045 refers readers to the Lobbying Disclosure Act of 1995 (2 U.S.C. Section 1602) for definitions of relevant prohibitions, and exceptions from prohibitions.  And the Lobbying Disclosure Act offers comfort that substantial activities are still permissible.  Yes, representation back to the Department of Defense is more limited under Section 1045 of the 2018 NDAA than it was before, but not severely so.  And contractors already must monitor representation back to these officials’ former offices.  Section 1045 extends the monitoring requirement a bit farther.

It appears that industry is overly focused on the bolded and italicized wording of the Lobbying Disclosure Act’s definition of lobbying activity, ‘[t]he term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others. The term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.’  This language poses a new compliance challenge for contractors because, in the post-employment context, behind the scenes work while waiting out a restriction is typically acceptable (putting aside for these purposes organizational conflicts of interest and other non-statutory considerations).  But for general officers and senior executive service members, Section 1045 presents an additional one- or two-year restriction (depending on their seniority) that can restrict even some “behind the scenes” work directly associated with lobbying.

But substantial lobbying related work is still permitted.  Indeed, there are 24 exceptions in the Lobbying Disclosure Act that permit lobbying related activity, including but not limited to: speeches, articles, publications, interviews, media appearances, meeting requests or similar administrative requests, service on advisory committees, responding to public notices in the Federal Register and other invitations for written submissions, written comment, public written petitions to an agency under certain circumstances, among other things.  In short, newly separated very senior Department of Defense Officials will not need to sit around doing nothing to wait out this restriction – plenty is still permitted.

Contractor concern may be driven by the merging of political law and government contracts law for this limited number of very senior, former Defense Department officials.  But the compliance steps are relatively straightforward, particularly if contractors already had a robust approach to complying with the restrictions in place before Section 1045 became effective.  Contractors are well advised to track for a year or two (depending on seniority) their former Defense Department general officers and equivalents, train them on these restrictions, and conduct a Lobbying Disclosure Rule driven analysis for communications back to “covered Executive Branch Officials.”

Top Five Bid Protest Topics in 2017

Posted in Bid Protest, Legal Developments
Christian CurranOlivia LynchRob Sneckenberg

With 2017 firmly in the rear-view, it’s time to take stock of recent and anticipated bid protest developments.  Today, we’ll look back and highlight five of the most significant trends in 2017 bid protests.  In the near future, we’ll turn our gaze forward and predict the five most important protest developments to keep an eye on in 2018.

Continue Reading

Fastest 5 Minutes, The Podcast Gov’t Contractors Can’t Do Without

Posted in Legal Developments, Podcast
Peter J. EyreJ. Chris HaileElizabeth Buehler

This week’s episode covers commercial items and the 809 report, and is hosted by Peter Eyre, Chris Haile, and Elizabeth Buehler. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

ListenCrowell.com | PodBean | SoundCloud | iTunes 

All Things Protest: The Inaugural Podcast

Posted in Bid Protest, Podcast
Christian CurranOlivia LynchRob Sneckenberg

Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this inaugural episode, hosts Olivia Lynch, Rob Sneckenberg, and Christian Curran cover GAO’s FY2017 bid protest statistics, the RAND Corp.’s comprehensive report on DoD protests, bid protest reform in the FY2018 NDAA, and the ongoing work of the Section 809 Panel.

You can find the materials discussed in this episode here.

ListenCrowell.com | PodBean | SoundCloud | iTunes 

 

Fastest 5 Minutes, The Podcast Gov’t Contractors Can’t Do Without

Posted in Legal Developments, Podcast
David B. RobbinsPeter J. Eyre

This week’s episode covers cloud computing, Escobar news, and the semiannual regulatory agenda, and is hosted by partners Peter Eyre and David Robbins. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

We are still accepting questions for Ask Us Anything! Have questions you’d like answered anonymously? Want our thoughts in general on a particular topic? Send in questions and we’ll do our best to feature them in a future podcast. Email your questions to David at drobbins@crowell.com. Disclaimer: we cannot give legal advice unless and until we have an engagement letter in place.

When is a Required Evaluation Not Required? A Warning for Contractors Expecting the Government to Evaluate Professional Compensation

Posted in Bid Protest, Legal Developments
Rob Sneckenberg

Everyone can agree that professional employees should be compensated fairly and properly—both for the benefit of the employees and to ensure successful contract performance. However, a recent GAO decision could provide a loophole for agencies to forego the very evaluation designed to ensure that fair and proper compensation.

Contractors competing for work involving meaningful numbers of professional employees—and, in particular, incumbents seeking to prevent newcomers from undercutting their established professional compensation—should take note.

Continue Reading

Contractors: Getting Their Due – Part of Crowell & Moring’s 2018 Litigation Forecast

Posted in Legal Developments
Crowell & Moring

Crowell & Moring has issued its “Litigation Forecast 2018: What Corporate Counsel Need to Know for the Coming Year.”

The government contracts section of the Forecast, “Contractors: Getting Their Due,” focuses on how more companies are disputing federal payments in court as a result of the increased competition for government contracts. The article notes that corporate legal departments are viewing recovery claims as a method for recouping funds owed to them and ultimately moving from a cost-and-compliance center to potentially becoming a revenue center.

The Forecast explores the important litigation trends and challenges that businesses may face in 2018, and it features an in-depth look at how data-driven innovation is driving new opportunities and risks for clients across industries.

Be sure to follow the conversation on Twitter with #LitigationForecast.

Fastest 5 Minutes, The Podcast Gov’t Contractors Can’t Do Without

Posted in Cybersecurity, False Claims, Podcast
David B. RobbinsPeter J. Eyre

This week’s episode covers False Claims Act items, GAO protests, and cybersecurity and is hosted by partners Peter Eyre and David Robbins. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

We are still accepting questions for Ask Us Anything! Have questions you’d like answered anonymously? Want our thoughts in general on a particular topic? Send in questions and we’ll do our best to feature them in a future podcast. Email your questions to David at drobbins@crowell.com. Disclaimer: we cannot give legal advice unless and until we have an engagement letter in place.

ListenCrowell.com | PodBean | SoundCloud | iTunes 

 

DOJ Reports $3.7 Billion in FY 2017 False Claims Act Recoveries

Posted in False Claims
Mana Elihu LombardoBrian Tully McLaughlinLaura CordovaJason M. Crawford

On December 21, 2017, the Department of Justice announced that it recovered more than $3.7 billion in settlements and judgments from civil False Claims Act (FCA) cases in Fiscal Year 2017. The FY 2017 figures reflect the government’s continued trend of annually amassing multi-billion dollar recoveries under the FCA.  This recovery is the fourth largest total in thirty years, and the eighth consecutive year that recoveries have exceeded $3 billion.

At the industry level, DOJ reported $2.47 billion in recoveries from the health care sector, and $220 million from defense companies.  The largest health care industry recoveries in FY 2017 came from the drug and medical device industry.  In the procurement fraud arena, the bulk of the recovery came from two large settlements, one involving charges to the Department of Defense and the other involving charges to the Department of Energy.  The government collected approximately $1 billion from the remaining industries, including national security, food safety and inspection, federally insured loans and mortgages, highway funds, small business contracts, agricultural subsidies, disaster assistance, and import tariffs.

The change in presidential administration appears to have had little effect on FCA activity.  DOJ continued its pursuit of individual owners and executives of private corporations under the FCA.  It entered into numerous settlements wherein individuals agreed to joint and several liability with their company.  DOJ also obtained over $60 million in FCA settlements and judgments with individuals that did not involve joint and several liability with the corporate entity.  Also, the number of new FCA actions in FY 2017 remained high with relators bringing 674 new qui tam matters and DOJ initiating 125 matters on its own.  Of the $3.7 billion recovery, $3.4 billion related to suits initiated by whistleblowers, and over $3 billion of that came from suits where the government either intervened or otherwise pursued the matter.  These numbers are consistent with the prior five years and suggest that the FCA will remain an active area for investigations and litigation in 2018.

NIST Gives Contractors Extra Time to Comment on Proposed Assessment Guide for NIST SP 800-171

Posted in Cybersecurity, Legal Developments
Kate M. Growley

As defense contractors continue to push towards their end-of-year implementation deadline for NIST SP 800-171 under DFARS 252.204-7012, the National Institute of Standards & Technology (NIST) has given the contracting community some extra time to respond to a draft publication that outlines how they and their customers alike can assess compliance with the security standard.  Initially published on November 28, NIST SP 800-171A, Assessing Security Requirements for Controlled Unclassified Information, is now open for comment until January 15, 2018 – several weeks longer than the initial deadline of December 27.