Government Contracts Legal Forum

OOPS 2018 Preview: Navigating Uncharted Waters

Posted in Events
Crowell & Moring

Crowell & Moring’s 34th annual Ounce of Prevention Seminar (OOPS) is just around the corner, taking place on May 17 and 18 at the Renaissance Hotel in Washington. At this year’s seminar, “Navigating Uncharted Waters,” the Government Contracts Group will provide updates and insight in a variety of areas, including ethics and compliance, bid protests, False Claims Act enforcement, international issues affecting government contractors, and more.

Check back here for updates from our panelists, who will preview sessions on M&A diligence, cybersecurity, and False Claims Act enforcement.

For more information and to register for OOPS, please click here.

New Draft NIST Guidance on Systems Security Engineering

Posted in Cybersecurity, Legal Developments
Evan D. WolffPeter B. MillerMaida Oringher LernerKate M. GrowleyJudy ChoiMichael GrudenPayal Nanavati

The National Institute of Standards and Technology (NIST) recently published a draft special publication titled Systems Security Engineering: Resiliency Considerations for the Engineering of Trustworthy Secure Systems (Volume 2), which provides guidance to professionals responsible for the activities and tasks related to the system life cycle processes in NIST’s flagship publication, NIST Special Publication 800-160 Volume 1 (Volume 1).  Volume 2 is the first in a series of systems security engineering publications supplementing Volume 1, and describes how to apply cyber resiliency concepts, constructs, and engineering practices, as part of systems security engineering.

Volume 1 built upon well-established international standards for systems and software engineering to describe the actions necessary to develop more defensible and survivable systems.  Volume 2 describes cyber resiliency principles that organizations can select and apply to their own systems based on the organization’s threat environment.   These principles help organizations address certain types of advanced cyber-threats that have the capability to breach critical systems, establish a presence within those systems often undetected, and inflict immediate and long-term damage to economic and security interests.  Among other things, developers could look to the draft publication for guidance on how to increase the security of older legacy systems in order to limit potential hackers’ access in the event of a data breach.   NIST is accepting public comments until May 18, 2018.

What’s Keeping False Claims Act Lawyers Up At Night

Posted in Legal Developments
Crowell & Moring

Please join us on April 24 from 5-7:30pm at Crowell & Moring LLP for a panel discussion and cocktail reception hosted by the ABA Section of Public Contract Law Procurement Fraud and Young Lawyers Committees. The panel will discuss how recent False Claims Act developments have created new challenges (and opportunities) for in-house counsel, the Department of Justice, relator’s counsel, and the defense bar.

Panelists include:

  • Inayat Hemani, Sanford Heisler Sharp, LLP
  • Brian Tully McLaughlin, Crowell & Moring
  • Erin Shoudt, PAE
  • Benjamin C. Wei, U.S. Department of Justice
  • Jason M. Crawford, Crowell & Moring

To join us, please register here:

Court Dismisses FCA Suit Alleging that Grocery Chain Failed to Collect Sales Tax

Posted in False Claims, Legal Developments
Mark R. TroyJason M. Crawford

On March 22, 2018, an Indiana state trial court judge granted a motion to dismiss in State of Indiana ex. rel Harmeyer v. The Kroger Co. et al. Relator Harmeyeran attorney and Kroger patron—alleged that the grocery chain knowingly failed to collect and remit state sales tax on hundreds of goods throughout the state.  Under Indiana law, the state’s gross retail tax does not apply to “food and food ingredients” but it does apply to candy, soft drinks, dietary supplements, and prepared foods.  Relator’s sixth amended complaint identified more than 1,400 food items that relator alleged were mischaracterized as tax-exempt based on the ingredients and food preparation.  For example, relator alleged that a protein bar should be classified as taxable candy rather than nontaxable food.  By classifying items as tax-exempt, relator alleged that the grocery chain cost the state millions of dollars in tax revenue each year.

The superior court judge dismissed relator’s complaint with prejudice holding that the complaint failed to meet the heightened pleading requirement of 9(b) because Harmeyer failed to allege the time, place, and method by which misrepresentations were made to the state.  The court also noted that Harmeyer, whose similar case against a grocer in another state had been dismissed, was not an employee of Kroger, had no inside knowledge of what took place within the company, and merely presumed, as he had in his other case, that the defendant’s characterization of the items as tax-exempt was false and done with reckless disregard of the truth.  While Harmeyer argued that the allegation of 1400 mischaracterizations was sufficient to plead recklessness, the court could not determine from the complaint whether this was a substantial percentage of the products sold by defendant and therefore could not presume recklessness from that number. The judge dismissed the case with prejudice, and the relator filed a notice of appeal on April 13.

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All Things Protest: Time for a Change – Important Updates on GAO Timeliness Rules and DoD Debriefings

Posted in Bid Protest, Legal Developments, Podcast
Olivia LynchRob SneckenbergChristian Curran

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 episode, your hosts break down GAO’s pre- and post-award timeliness rules, as well as recent changes to GAO’s regulations and DoD debriefings that you need to know.

You can find the materials discussed in this episode here. | PodBean | SoundCloud | iTunes 


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

Posted in Bid Protest, Cybersecurity, Legal Developments, Podcast
Peter J. EyreDavid B. Robbins

This week’s episode covers bid protest, debriefing, and cybersecurity news, and is hosted by partners David Robbins and Peter Eyre. 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. | PodBean | SoundCloud | iTunes 

After Fraudulent Activity in SAM, GSA Implements New Registration Requirements

Posted in Ethics & Compliance
Peter J. EyreLaura Baker

The General Services Administration’s (GSA) System for Award Management (SAM) announced its role in an ongoing Inspector General Investigation into alleged, third party fraudulent activity in SAM.

GSA suspects that the alleged fraudulent activity impacted only a limited number of entities.  GSA has since notified the affected entities, and deactivated their SAM registrations.  GSA also required these entities to validate and confirm their registration and bank account information in SAM before reactivating their SAM registrations.

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Let’s Talk FCA: The Inaugural Podcast

Posted in False Claims, Podcast
Mana Elihu LombardoJason M. Crawford

“Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act. In this inaugural episode, hosts Mana Lombardo and Jason Crawford discuss the Granston and Brand memos, two significant DOJ memoranda governing policy that impact FCA matters. | PodBean | SoundCloud | iTunes 

GAO Implements Changes to Bid Protest Process with New Regulations

Posted in Bid Protest
Anuj VohraMark RiesChristian CurranRob SneckenbergRosamond XiangPayal Nanavati

On April 2, 2018, the Government Accountability Office (GAO) published Final Rule 83 FR 13817, amending its bid protest regulations to implement the Electronic Protest Docketing System, make administrative and clerical changes, and “streamline the bid protest process.”

This Final Rule goes into effect on May 1, 2018.  We detail below some key changes it implements to the protest process.

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Did the Federal Circuit Narrow the COFC’s Bid Protest Jurisdiction?

Posted in Bid Protest, Legal Developments
Rob SneckenbergLauren Harrison

When deciding where to file a bid protest, the most fundamental consideration is perhaps the most obvious one: does your desired venue have jurisdiction to hear your arguments?

In a recent decision, Cleveland Assets, LLC v. United States , the Federal Circuit may have changed that analysis for certain Court of Federal Claims (COFC) bid protests.

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