Photo of Olivia LynchPhoto of Brian Tully McLaughlinPhoto of Lyndsay GortonPhoto of Zachary Schroeder

In its recent decision, CVE Appeal of First State Manufacturing, Inc., SBA No. CVE-184-A (2021), the Small Business Administration Office of Hearing and Appeals (OHA) denied an appeal of a decision by the Department of Veterans Affairs Center for Verification and Evaluation (CVE) to cancel First State Manufacturing, Inc.’s verification of service-disabled veteran-owned small business (SDVOSB) status. CVE issued its Notice of Verified Status Cancellation based on concerns of present responsibility related to a consent judgment entered into merely a month before to resolve a False Claims Act (FCA) lawsuit against First State that required First State to pay over $393,000. Prior to the FCA lawsuit, First State’s Vice President for Marketing/Contract Administration and Chief Executive Vice President/Chief Financial Officer were criminally charged, pled guilty, and were sentenced to prison terms for bribing an Amtrak official to win federal Government contracts. In the appeal before OHA, First State argued that CVE erred in cancelling its verified SDVOSB status for two reasons: (1) the FCA consent judgment was based upon an underlying FCA settlement agreement that did not admit liability or wrongdoing by First State; and (2) the Federal Railway Administration, which oversees Amtrak funding, determined that First State was “presently responsible,” and that the likelihood of future harm to the Government did not warrant suspension or debarment. First State further argued that as the Federal Railway Administration is the agency with the potential injury, its determination of present responsibility should have been given greater deference by CVE. Continue Reading False Claims Act Consent Judgment Prompts Termination of SDVOSB Status Even Without an Admission of Liability

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Over the past few years, both the government and False Claims Act relators (whistleblowers) have targeted more types of defendants than they have ever previously.  Against this backdrop, Congress passed two of the largest relief bills in modern history and thus even more companies find themselves involved with the federal government in a new way or for the first time  This article examines the government’s enforcement of FCA against such new or non-traditional defendants and provides key takeaways.

Photo of Peter J. EyrePhoto of Olivia Lynch

This week’s episode covers a new Executive Order on Climate-Related Financial Risk, the final DFARS provision on contract closeout, a new SBA decision involving a mentor-protégé joint venture, and a FedRAMP update, and is hosted by partners Peter Eyre and Olivia Lynch. 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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Photo of Olivia LynchPhoto of Amy Laderberg O'SullivanPhoto of Michael SamuelsPhoto of Zachary Schroeder

In this bullet point Olivia Lynch, Amy O’Sullivan, Michael Samuels, and Zachary Schroeder discuss a proposed Department of Defense rule requiring contracting officers to consider an offeror’s past performance as a first-tier subcontractor or individual partner of a joint venture under construction and/or architect-engineer services contracts.

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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 Christian Curran and Olivia Lynch discuss a proposed DFARS rule for enhanced debriefings.

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Photo of Olivia LynchPhoto of Amy Laderberg O'SullivanPhoto of Michael SamuelsPhoto of Zachary Schroeder

In this bullet point, Olivia Lynch, Amy O’Sullivan, Michael Samuels, and Zachary Schroeder address the SBA Office of Hearings and Appeals’ (OHA) recent decision in DSC-EMI Maintenance Solutions, LLC, SBA No. SIZ-6096. In the decision, OHA affirmed a size determination holding that a joint venture formed pursuant to SBA’s Mentor-Protégé Program was other-than-small because the joint venture agreement failed to contain all provisions required by the SBA’s joint venture regulation. As a result, the joint venture was ineligible for the exemption from affiliation under SBA’s joint venture affiliation rule.

Photo of Jonathan M. BakerPhoto of John E. McCarthy Jr.Photo of Anuj VohraPhoto of Christian CurranPhoto of Rina Gashaw

On May 20, 2021, the FAR Council issued a proposed Defense Federal Acquisition Regulation Supplement (DFARS) rule on post-award debriefings that largely codifies—and in a number of ways bolsters—the existing enhanced post-award debriefing rules established by the Department of Defense’s (DoD) March 22, 2018 Class Deviation on Enhanced Postaward Debriefing Rights.  The proposed rule requires that the awarding agency provide an oral or written debriefing, when requested, for all contracts, task orders, and delivery orders valued in excess of $10 million.  The rule further augments the DFARS clause on DoD debriefings, requiring (1) debriefings to include a redacted version of the source selection decision document (SSDD) for all awards in excess of $100 million; and (2) the option for a small business or nontraditional defense contractor to request a redacted version of the SSDD for contract awards between $10 million and $100 million.  And as with DoD’s Class Deviation, if an offeror submits additional questions in response to the initial debriefing within two business days of being debriefed, the debriefing shall not close until the agency responds to those questions.  Under those circumstances, the protester’s clock for filing a protest at the Government Accountability Office (GAO) (including the five-day window in which to file and obtain the Competition in Contracting Act’s automatic stay of performance) does not begin to run until such time as the agency provides its response.  If no questions are posed, the protest timelines are unchanged.

Photo of Peter J. EyrePhoto of M.Yuan Zhou

This week’s episode covers a new Executive Order on Improving the Nation’s Cybersecurity, expansion of the GSA Schedule Transactional Data Reporting pilot program, conflicts of interest, revised CDC mask guidance, and Treasury’s Interim Final Rule to provide guidance on the Coronavirus State and Local Fiscal Recovery Funds established under the American Rescue Plan Act, and is hosted by partner Peter Eyre and counsel 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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Photo of Kate M. Growley, CIPP/G, CIPP/USPhoto of Christopher Hebdon

In this episode, host Kate Growley is joined by Chris Hebdon as they discuss current requirements for cloud service providers interested in working for the Department of Defense. 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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Photo of Peter J. EyrePhoto of Laura J. Mitchell BakerPhoto of Olivia LynchPhoto of Kuba Wisniewski

On May 10, 2021, the U.S. Department of the Treasury (“Treasury”) issued an Interim Final Rule to provide long-awaited guidance on the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund (“the Fiscal Recovery Funds”) established under the American Rescue Plan Act (“ARPA”).  The Rule became effective on May 17, 2021.  To facilitate the implementation of these funds, this Interim Final Rule establishes a framework for determining the types of programs and services that are eligible under the ARPA along with a list of eligible uses that State, local, and Tribal governments may consider. Continue Reading Treasury Issues Guidance on the Coronavirus State and Local Fiscal Recovery Funds under the American Rescue Plan Act