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Category Archives: Legal Developments

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DoD And NASA Again Seek Changes to the Program Fraud Civil Remedies Act

Posted in False Claims, Legal Developments
In this year’s set of legislative proposals forwarded to Capitol Hill, DoD and NASA have again requested changes to the Program Fraud Civil Remedies Act (“PFCRA”) to create, in the government’s view, a more viable administrative remedy for fraud and false claims totaling less than $500,000.  The administrative process would proceed similarly to the suspension… Continue Reading

DoD Issues Directive Mobilizing Agency Action on Climate Change

Posted in Legal Developments
On January 14, 2016, the U.S. Department of Defense (DoD) issued Directive 4715.21 to organize comprehensive agency-wide action to address and mitigate the risks of climate change on U.S. military assets and operations. The Directive implements for DoD the requirement established by Executive Order 13653 (Preparing the United States for the Impacts of Climate Change)… Continue Reading

Supreme Court Considers the Scope of the Implied Certification Theory of Liability

Posted in Legal Developments
On April 19, 2016, the Supreme Court heard oral argument in U.S. v. Universal Health Servs., Inc., which concerns (1) whether the implied certification theory of legal falsity under the FCA is ever viable; and (2) if it is, whether a contractor’s reimbursement claim can be legally false under that theory if the contractor fails… Continue Reading

Joint DOJ-FTC Memorandum Puts Defense M&A Deals in the Crosshairs

Posted in Legal Developments
On April 12, the DOJ and FTC issued a joint statement titled “Preserving Competition in the Defense Industry,” which reiterates the analytical framework for reviewing defense industry mergers and acquisitions set forth in the DOJ/FTC 2010 Horizontal Merger Guidelines, and emphasizes that the antitrust agencies will continue to give substantial weight to the DOD’s own internal assessment of such… Continue Reading

Proposed FAR Rule Targets Restrictive Confidentiality Agreements

Posted in Legal Developments
On January 22, 2016, the FAR Council proposed adding a new rule (link here) prohibiting federal dollars from going to companies that require employees to sign confidentiality agreements that could limit the ability of employees to report suspected fraud and abuse to the government. The proposed rule comes at a time of increased attention on… Continue Reading

Crowell & Moring’s 2016 Litigation & Regulatory Forecasts: What Corporate Counsel Need to Know for the Coming Year

Posted in Legal Developments
Crowell & Moring LLP is pleased to release its “2016 Litigation & Regulatory Forecasts: What Corporate Counsel Need to Know for the Coming Year.” The reports examine the trends and developments that will impact government contractors and other corporations in the coming year—from the last year of the Obama administration to how corporate litigation strategy… Continue Reading

For Whom Does the Appeal Clock Toll? Vitiation vs. Finality

Posted in Legal Developments
In Guardian Angels Med. Serv. Dogs Inc. v. U.S. (Jan. 8, 2016), the Federal Circuit held that a CO’s request to evaluate additional information after a default termination “vitiated the finality” of the termination and reset the 12-month appeal clock, even though the CO neither received new information nor spent any time reconsidering her decision.… Continue Reading

Webinar: What Will the New Year Bring for Government Contractors?

Posted in Legal Developments
Will it be more of the same for government contractors in 2016? Can contractors expect increased oversight, intense competition, new regulations, and consolidation? On Thursday, January 14, Crowell & Moring will be hosting a webinar to discuss the likely trends in the coming year. Topics to be covered include: cost, commercial items, update on Executive… Continue Reading

New Zealand Companies Out of the “Chillybin”

Posted in Legal Developments
By notice published in the Federal Register, the U.S. Trade Representative has confirmed that New Zealand has acceded to the WTO Agreement on Government Procurement and thereby, effective August 12, 2015, has become a “designated country” under the Trade Agreements Act.  Accordingly, products and services from New Zealand are now eligible to be procured under all contracts… Continue Reading

June 1, 2015 OFPP Memorandum “Effective Use of Reverse Auctions”

Posted in Legal Developments
On June 1, 2015, the Office of Federal Procurement Policy (“OFPP”) released a Memorandum for Chief Acquisition Officers and Senior Procurement Executives to provide guidance on “Effective Use of Reverse Auctions.”[1] Reverse auctions are a web-based procurement tool that allows sellers to compete with successively lower bids to obtain awards for products and services. Although… Continue Reading

Obama Administration Mandates New Federal Agency Sustainability Objectives

Posted in Legal Developments
Federal agencies (and their government contractors) are about to embark on a second generation of sustainability upgrades to federal government facilities, procurement and operations.  On March 19, 2015, President Obama released an executive order titled “Planning for Federal Sustainability in the Next Decade” (“EO”).  The EO establishes next generation greenhouse gas (GHG) reduction and sustainability… Continue Reading

Contractor Logs Victory in Termination Case at Federal Circuit

Posted in Legal Developments
In EM Logging v. Department of Agriculture, 2014-1227 (Feb. 20, 2015), the Federal Circuit reversed the Civilian Board of Contract Appeals, holding that substantial evidence did not support the Board’s conclusion that the US Forest Service had properly terminated a timber sale contract for the Kootenai National Forest in Northern Montana for “flagrant disregard” of… Continue Reading

U.S. Access Board Proposes Update to Section 508 Standards

Posted in Legal Developments
On February 18, 2015, the Architectural and Transportation Barriers Compliance Board (“Access Board”) released a proposed rule revising and updating the standards for electronic and information technology developed, procured, maintained, or used by federal agencies covered by section 508 of the Rehabilitation Act of 1973. Why Section 508 of the Rehabilitation Act Matters to Contractors Section 508 of… Continue Reading

Winter Marketplace Outlook with BDO

Posted in Legal Developments
On February 25 at 12 pm ET, I’ll be joining Joseph McCaffrey from BDO for a webinar focusing on the market for government contractors.  We’ll be talking about DCAA trends, high priority compliance and ethics matters, new final and proposed regulations impacting the industry, and insights into recent M&A activity and financing trends. It will… Continue Reading

Finalized Trafficking In Persons Regulations Leaves Contractors with Significant Compliance Challenges and Risks

Posted in Legal Developments
Yesterday, the FAR Council published the much-anticipated final rule amending the Federal Acquisition Regulation to expand the definition of trafficking in persons in government contracts and to finalize expansive compliance and certification requirements for certain government contractors. The new regulations present a substantial compliance challenge for contractors and leave contractors open to significant risks for… Continue Reading

Government Contracts Cases To Watch In 2015

Posted in Legal Developments
In December, I had the pleasure of speaking with Law360 regarding “Government Contracts Cases To Watch In 2015.” To no one’s surprise, the continuing DCAA audit backlog, and the Contract Disputes Act statute of limitations, are among the topics that contractors will be following with interest in 2015. In an upcoming post, we will discuss… Continue Reading

Webinar: What Will The New Year Bring For Government Contractors?

Posted in Legal Developments
Tight budgets, increased oversight, new executive orders, complex regulatory environment, and intense competition remain atop the list of issues facing government contractors. Should you expect anything different in 2015? Please join us on Wednesday, January 7, 2015 at 1:00 pm Eastern to hear our Crowell & Moring team discuss predictions for the coming year. Topics… Continue Reading

Army Office of Energy Initiatives Releases RFP for New Renewable Energy Project at Fort Hood

Posted in Legal Developments
On October 17, 2014, the U.S. Defense Logistics Agency (DLA) issued a solicitation for the construction and operation of large-scale solar and wind projects at the Fort Hood military base. Fort Hood is the largest active military duty post in the U.S., located approximately 60 miles north of Austin, Texas. The RFP, which is the… Continue Reading

Not Our Problem: ASBCA Has No Say in Prime-Sub Sponsorship Dispute

Posted in Legal Developments
In Appeal of Binghamton Simulator Co. (ASBCA, Aug. 21), the board held that it had no jurisdiction to hear a subcontractor’s appeal in which the prime contractor declined to sponsor the sub’s appeal. Despite the subcontractor’s argument that the terms of its subcontract required the prime contractor to sponsor the appeal, the board held that… Continue Reading

DoD and NASA Propose New Rule for Uniform Line Item Identification Structure in Gov’t Contracts – Comment Period Ends October 6th

Posted in Legal Developments
DoD, NASA, and the GSA have proposed a new rule that would change the federal acquisition regulation to establish a uniform line item structure for the Federal procurement system.  The rationale for the change is that a uniform line item identification structure would improve the accuracy, traceability, and usability of procurement data.  It is also… Continue Reading

Taking a break from the serious…

Posted in Legal Developments
…and passing on this wonderful tip from the WaPo on what NOT to pack in your airplane carry-on bag: 2. Any kind of throwing weapon meant for ninjas. At airports around the country last week, the TSA found 16 knuckle knives at Dulles, throwing knives at the San Jose and Long Beach airports, and a… Continue Reading

Part 5: How Do I Evaluate Legal Costs?

Posted in Legal Developments
This is the last part of a five-part series will help answer the question “how do I know which lawyer is right for me?” by breaking the analysis down into vitally important component parts. QUESTION 5: HOW DO I EVALUATE LAWYER COSTS? There is no question that legal fees are a concern for growing contractors.… Continue Reading

Join us for an U.S.-Israel Business Networking and Discussion

Posted in Legal Developments
On Thursday, May 29 from 6:00-9:00 pm, Crowell & Moring is hosting an Israel-related program for US companies to join industry-leading individuals from US and Israeli companies. The discussion will feature three sectors, specifically defense technology, life sciences, and TMT, and you will hear their perspectives on opportunities and challenges for and with Israel-based companies.… Continue Reading