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Category Archives: Legal Developments

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Significant Developments for Contractors in the Twilight of the Obama Administration

Posted in GSA Schedule/Commercial Items, Labor & Employment, Legal Developments
The final year of the Obama Administration has seen a flurry of activity that will affect the government contracting community.  Appearing on WJLA’s Government Matters program (available here at, Crowell & Moring Chair Angela Styles discussed some of the latest changes that will impact industry including the GSA’s final rule on transactional data reporting;… Continue Reading

FCA Back Before the Supreme Court for Third Consecutive Term

Posted in False Claims, Legal Developments
For the third consecutive term, the Supreme Court will hear a case involving the False Claims Act (FCA).  On May 31, the Court granted review in State Farm Fire and Cas. Co. v. U.S. ex rel. Rigsby to address the applicable standard for dismissal in FCA cases when whistleblowers (referred to as relators under the… Continue Reading

Importance of Disclosures and Cooperation During and After Internal Investigations

Posted in Legal Developments, Uncategorized
The rules, regulations, and incentives for government contractors facing investigations (whether internal or external) have changed dramatically in the last year. From the new demands of the “Yates Memorandum” to the Fair Pay & Safe Workplaces proposed rule to the shift from exclusion-driven interactions with Suspending and Debarring Officials (SDOs) to show cause letter and… Continue Reading

Federal Agencies’ Proposal Would Require Some Government Contractors to Report Whether They Publicly Disclose Greenhouse Gas Emissions and Reduction Goals

Posted in Legal Developments
Today, the Department of Defense (DoD), General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) (collectively, the “FAR Council”) proposed amendments and revisions to the Federal Acquisition Regulation (FAR) that would require some government contractors to indicate whether they publicly disclose greenhouse gas (GHG) emissions and/or quantify corporate GHG reduction goals. Comments… Continue Reading

Rescinded Claims Rendered Appeals Moot, Absent Evidence That Government Intends to Reassert

Posted in Legal Developments
In L-3 Commc’ns (Apr. 25, 2016), the ASBCA dismissed as moot the appeals of two final decisions that the contractor had argued were barred by the CDA statute of limitations when the cognizant ACOs rescinded the final decisions after the contractor had appealed.  The board held that, although the COs had not yet agreed to… Continue Reading

Responsible Sourcing: New Tools for Contractors to Combat Human Trafficking

Posted in Legal Developments
Last March, government contractors’ anti-human trafficking obligations were significantly expanded under FAR Subpart 22.17, Combating Trafficking in Persons, and its associated contract clause at FAR 52.222-50. Among other requirements, the amended FAR rule broadened the definition of trafficking in persons in government contracts, instituted new contractor reporting obligations, and implemented a number of additional compliance and… Continue Reading

Administration Walks Back “Economic Significance” Designation of New Rules

Posted in Labor & Employment, Legal Developments
In the latest twist to the Administration’s roll-out of the new “Fair Pay and Safe Workplaces” rules, OIRA now identifies the rules as Economically Significant (a change from several days ago, discussed here), which means that the administration will have to provide a more detailed assessment of the likely benefits and costs of the regulatory… Continue Reading

Tainted Love—Plaintiffs’ Increasing Reliance On The “Tainted Claim” Theory Of Damages

Posted in Legal Developments
In February, the Sixth Circuit in U.S. ex rel. Wall v. Circle C Construction rejected the government’s FCA damages theory that it is entitled to three times the amount of the total contract value, regardless of any value received, because the claim for payment was “tainted” by the underlying legal violation.  In a “Feature Comment”… Continue Reading

Wait, What? Administration Now Designates “Fair Pay and Safe Workplaces” as Not Economically Significant

Posted in Labor & Employment, Legal Developments
In a sign that the Obama Administration may be preparing to rush the publication of the FAR Council’s final rules implementing the “Fair Pay and Safe Workplaces” executive order in order to avoid timing problems associated with the Congressional Review Act, the White House’s Office of Information and Regulatory Affairs (responsible for reviewing the rules… Continue Reading

No Money, No Problem: Court Finds Certification Merely Defective on Pass-Through Claim, and Dings Severin Argument

Posted in Legal Developments
In M.K. Ferguson Co. v. U.S. (Apr. 14, 2016), a case involving a pass-through claim compelled by the prime’s bankruptcy judge, the CFC denied the government’s motion to dismiss and held that the prime’s initial pass-through certification – which stated only that the prime was “authorized to certify the claim” – was not a “failure… Continue Reading

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