Following President Biden’s announcement of Executive Order 14042 (“EO”) on September 9, 2021, several agencies have issued guidance on the EO’s applicability to the contractor community, which we reported on here. Further to GSA’s September 30, 2021 Class Deviation CD-2021-13, on October 6, 2021, GSA reiterated that a mass modification program for all
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)
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.”
“Here before. Many times. And without resolution.” – Board’s Dismissal of Contractor’s Appeals as Moot Precludes Analysis of Costs Repeatedly Disallowed on the Same Grounds
In L3 Technologies, Inc., ASBCA Nos. 61811, et al. (Mar. 1, 2021), the Armed Services Board of Contract Appeals (Board) granted the Government’s motion to dismiss the appeal, over the contractor’s objection, following the Contracting Officer’s (CO) unequivocal withdrawal of its cost disallowance claims. The contractor argued that its case was not moot despite
“A Claim By Any Other Name”: Jurisdiction Over Certified Supplement to Termination Proposal
In Globe Trailer Manufacturing, Inc., ASBCA No. 62594 (Jan. 28, 2021), the Armed Services Board of Contract Appeals (the Board) addressed whether a contractor’s certified supplement to a termination settlement proposal (TSP) constitutes a claim under the Contract Disputes Act. After termination, the contractor submitted a TSP that included costs of constructive changes. During
Cybersecurity Breach Turns Back the Clock – Confidential Information to be Filed in Paper
On January 6, 2021, the Administrative Conference of U.S. Courts authorized federal district courts to develop policies for accepting “highly sensitive court documents (HSDs),” which would normally be filed electronically under seal, via paper filing. The statement from the Administrative Conference also acknowledged that the recent cybersecurity attack on SolarWinds products compromised the confidentiality of
New DoD Guidance Clarifies, and Restricts, Recovery under § 3610
On August 18, 2020, the Acting Principal Director for Defense Pricing and Contracting (DPC) issued updated guidance regarding contractor and subcontractor reimbursement of paid leave costs under the CARES Act § 3610, including two key Class Deviations, both effective immediately. First, it issued Revision 1 to Class Deviation 2020-O0013, which revises and supersedes