Photo of Peter J. EyrePhoto of Monica DiFonzo Sterling

This week’s episode covers a notice of proposed rulemaking relating to increasing the minimum wage for certain employees of government contractors, a new Executive Order focused on promoting competition, reporting service contract hours in SAM, and a DOD request seeking information from contractors about ESG matters, and is hosted by Peter Eyre and Monica Sterling. 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.

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A panel of the U.S. Court of Appeals for the Fifth Circuit recently rejected an argument advanced by two subsidiaries of a nationwide health care “watchdog” that the government improperly moved to dismiss two False Claims Act (FCA) lawsuits in U.S. ex rel. Health Choice Alliance LLC et al. v. Eli Lilly & Co. Inc. et al., No. 19-40906 (5th Cir. Jul. 7, 2021).  The relators accused Bayer Corp. and Eli Lilly & Co. Inc. of participating in a kickback scheme by offering free patient-education services to providers in exchange for providers prescribing their products in violation of the Anti-Kickback Act and the FCA.  The government initially declined to intervene in the cases, then a year later, notified the relators that it intended to move to dismiss and detailed its concerns about the viability of the cases.  After two-and-a-half months of negotiations with the relators, the government moved to dismiss the cases pursuant to its authority under 31 U.S.C. § 3730(c)(2)(A), citing, among other things, its two-year investigation into the relators’ cases.  The District Court granted the motions and the relators appealed.

Before undertaking its substantive analysis under the FCA, the Fifth Circuit analyzed whether it had jurisdiction to hear the relators’ appeal.  Though the relators and government agreed that there was appellate jurisdiction, the Fifth Circuit identified a potential issue based on the timeline of two events: (1) relators’ voluntary dismissal without prejudice; and (2) the District Court’s order granting the government’s motion to dismiss.  Specifically, the Fifth Circuit analyzed whether the relators’ voluntary dismissal eight months prior to the government’s motion to dismiss deprived the District Court of the ability to issue a final appealable order.  The Fifth Circuit declined to create a Circuit split on the question, and concluded “that the prior without-prejudice dismissals did not deprive the district court’s subsequent decision of finality.”

Continue Reading Fifth Circuit Declines to Take a Side in the FCA Circuit Split on DOJ’s Dismissal Authority Pursuant to 31 U.S.C. § 3730(c)(2)(A)

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In this episode, hosts Kate Growley and Evan Wolff talk with Matthew Welling about all things ransomware, including how to prepare for and respond to these kinds of incidents.  Crowell & Moring’s “Byte-Sized Q&A” podcast takes the complex world of government contracts cybersecurity and breaks it down into byte-sized pieces.

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This week’s episode covers a GSA OIG report pertaining to the Transactional Data Reporting pilot, GAO’s Artificial Intelligence Accountability Framework, and two GSA class deviations relating to cost-based contracts, and is hosted by Peter Eyre and Yuan Zhou. 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.

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On July 9, 2021, the U.S. Department of Defense (DoD) published a Final Rule to require contractors to report data in the System for Award Management (SAM) on an annual basis when they are awarded a DoD contract or task order that: (1) is valued in excess of $3 million, and (2) is for logistics management services, equipment related services, knowledge-based services, or electronics and communications services. When applicable, contractors will be required to annually report: (1) the total dollar amount invoiced for, and (2) the total number of direct labor hours expended on services performed under the contract or task order during the preceding fiscal year. The total number of direct labor hours reported to SAM should be the total of both the contractor hours and its first-tier subcontractors’ hours.

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In Lockheed Martin Aeronautics Company, ASBCA No. 62209 (a C&M case), the Board granted Lockheed Martin’s motion for summary judgment on the issue of whether the Government can assert laches as an affirmative defense to a Contract Disputes Act claim. In a case of first impression, Lockheed Martin argued that the affirmative defense of laches is not available in CDA appeals because laches is an equitable doctrine, which may not be applied when there is an applicable statute of limitations, such as the CDA’s six-year statute of limitations. The Air Force argued that FAR 33.203(c) preserves the equitable defense of laches because the clause states that the Boards of Contract Appeals “continue to have all of the authority they possessed before the Disputes statute with respect to disputes arising under a contract, as well as authority to decide disputes relating to a contract.” The Board held that, consistent with the U.S. Supreme Court’s decisions in SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954 (2017) (a patent case) and Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) (a copyright infringement case), laches is not available when there is a “legislatively-enacted statute of limitations,” and FAR 33.203(c) does not preserve the pre-FASA affirmative defense of laches. The Board noted that while the Federal Circuit has not yet applied SCA Hygiene in a CDA case, the Board is bound by the precedent of the United States Supreme Court, and therefore does not need to await a Federal Circuit decision.

The Board’s decision in Lockheed Martin Aeronautics Company marks the end of laches as an affirmative defense to claims brought within the CDA’s six-year statute of limitations at the ASBCA.

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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, hosts Rob Sneckenberg, Olivia Lynch, and Christian Curran discuss considerations and best practices when the Government inadvertently releases competition-sensitive information.

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Photo of Peter J. EyrePhoto of Monica DiFonzo Sterling

This week’s episode covers a decision involving a pandemic-related claim, a GAO decision pertaining to inadvertent disclosure of information by the government, and an update to the fair opportunity threshold under ID/IQ contracts, and is hosted by Peter Eyre and Monica Sterling. 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.

Listen: Crowell.com | PodBean | SoundCloud | Apple Podcasts 

Photo of Evan D. Wolff

In this episode, host Evan Wolff discusses the Biden Administration’s recent Executive Order on Improving the Nation’s Cybersecurity. Crowell & Moring’s “Byte-Sized Q&A” podcast takes the complex world of government contracts cybersecurity and breaks it down into byte-sized pieces.

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In U.S. ex rel. Howard v. Caddell Construction Company, Inc., 2021 WL 1206584 (E.D.N.C. Mar. 30, 2021), the District Court for the Eastern District of North Carolina held that status reports certifying compliance with subcontracting rules do not constitute false claims under the False Claims Act (“FCA”) because the claims were not relevant to the contract payments. Continue Reading Subcontracting Status Reports, Even if False, Are Not Claims Under the FCA