Government Contracts Legal Forum

Steve McBrady

Steve McBrady

Steve McBrady is a partner in Crowell & Moring’s Government Contracts Group and resident in the firm’s Washington, D.C. office. Steve represents clients on a wide range of federal, state, and international government procurement matters, including compliance counseling, DCAA audits and internal investigations, and cost allowability issues under the FAR cost principles and the Cost Accounting Standards. Steve regularly represents clients in litigation before the boards of contract appeals, state and federal courts, arbitration panels, and state-level contract appeals boards. He has represented clients in matters involving the government’s breach of contract, claims for contract changes, termination for default, termination for convenience, Truth in Negotiations Act (TINA) compliance and defective pricing, contract negotiations, indemnification under Public Law 85-804, and government claims involving the Cost Accounting Standards and the allowability of contractor costs.  In 2013 and 2014, Steve was recognized as a Washington, D.C. “Rising Star” by Super Lawyers Magazine for his government contracts and international work.

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Annual Report Shines a Light on Success of Alternative Dispute Resolution at the ASBCA

Posted in Legal Developments
The Armed Services Board of Contract Appeals published its FY16 Report of Transactions and Proceedings, which provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, DLA, DCMA, CIA, NASA, other Defense agencies, and the Washington Metropolitan Area Transit Authority. This year’s report once again reflects the… Continue Reading

Contract and Grant Freezes at EPA: What Contractors and Awardees Can Do to Prepare, and to Protect Themselves

Posted in Legal Developments
Many companies who work with government agencies are concerned this week as several news outlets have run stories about contract and grant “freezes” at the Environmental Protection Agency and potentially at other agencies.  The new administration has provided few details about the freezes, their objectives, the programs affected, or whether there are more to come. … Continue Reading

COFC Rejects Government Motion to Dismiss ACA “Risk Corridors” Case

Posted in Claims
In a recent decision, the Court of Federal Claims rejected the Government’s motion to dismiss a lawsuit filed under the Tucker Act seeking to recover “risk corridors” payments pursuant to §1342 of the Affordable Care Act. In Health Republic Insurance Co. v. U.S. (Jan. 10, 2017), the Court held that “HHS is required to make… Continue Reading

ASBCA Dismisses Army’s $100 Million Cost Disallowance for Failure to State a Plausible Claim

Posted in Cost/Cost Accounting
In Lockheed Martin Integrated Systems, Inc. (ASBCA Dec. 20, 2016), a case involving a $100 million breach of contract claim stemming from purportedly unallowable direct subcontractor costs, the Board granted Lockheed Martin’s motion to dismiss the Army’s untenable claim “for failure to state a claim on which relief could be granted,” concluding that the government… Continue Reading

The Pen is Mightier: Typewritten Signature Invalidates CDA Claim

Posted in Claims
ABS Development Corp. (ASBCA Nov. 17, 2016) highlights the importance of providing a fully-compliant certification for CDA claims over $100,000—which includes, according to the Board, the requirement for contractors to provide an identifiable and verifiable handwritten signature or digital e-signature. As the contractor in ABS discovered, the Board considers “typewritten” signatures, regardless of font, to… Continue Reading

Hold That Thought: OFPP Memo Stops FPSW Implementation

Posted in Labor & Employment
After a U.S. district court issued a preliminary injunction enjoining implementation of the “Fair Pay and Safe Workplaces” final rule (discussed here), OFPP issued a Memorandum for Chief Acquisition Officers on October 25 instructing federal agencies to refrain from implementing the enjoined portions of the final rule, and to “immediately” amend any solicitations containing such… Continue Reading

Stop the Press: District Court Enjoins Implementation of “Fair Pay and Safe Workplaces”

Posted in Labor & Employment
On October 24, the U.S. District Court for the Eastern District of Texas issued a preliminary injunction, enjoining the Government from implementing the “Fair Pay and Safe Workplaces” final rule (with a small carve out for the “paycheck transparency” requirements). Specifically, the Court enjoined the Government from (i) implementing any portion of the FAR Rule… Continue Reading

New Requirements under Fair Pay and Safe Workplaces Become Effective October 25. Is Your Company Prepared?

Posted in Labor & Employment
Starting on October 25, many new solicitations will contain the new clauses required under the Fair Pay and Safe Workplaces Final Rule.  These new clauses will impose significant new compliance and reporting obligations on federal contractors (and eventually on subcontractors). In a “feature comment” published in the Government Contractor, C&M attorneys provide an overview of… Continue Reading

Primer on the “Fair Pay and Safe Workplaces” Final Rule and Department of Labor Guidance

Posted in Labor & Employment
Many federal government contractors and subcontractors have expressed valid concerns about the new “Fair Pay and Safe Workplaces” final rule (and accompanying Department of Labor guidance), which among other things will require companies bidding on covered contracts and subcontracts to disclose “administrative merits determinations,” “arbitral award or decisions,” and “civil judgments” rendered against the company… Continue Reading

Join Crowell & Moring for our Webinar on the “Fair Pay and Safe Workplaces” Final Rule and Guidance on Wednesday, September 7th

Posted in Webinar
On Wednesday, September 7th, 2016 at 12 PM Eastern, join us for a webinar titled “Fair Pay and Safe Workplaces” Final Rule and Guidance: What You Need to Know. During this 90-minute webinar, a team of Crowell & Moring government contracts and labor & employment attorneys will discuss how contractors bidding on contracts covered by… Continue Reading

Fair Pay and Safe Workplaces Final Rule and Guidance Released

Posted in Labor & Employment
On August 25, 2016, the Obama Administration published the long-awaited Federal Acquisition Regulation (FAR) final rule and Department of Labor (DOL) final guidance implementing the “Fair Pay and Safe Workplaces” executive order (“Executive Order”) (available here and here). The underlying executive order has been amended (available here) with purportedly technical corrections to conform the final… Continue Reading

GSA to Require SCA Wage Determinations at the Task Order Level

Posted in GSA Schedule/Commercial Items
Beginning in June 2016, GSA will remove current wage determinations from existing MAS Schedules and require ordering agencies to incorporate determinations at the task order level to ensure that the “most recent” wage determinations are incorporated when an individual task order is placed.  The recently announced change is part of GSA’s plan to “update” the… 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

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

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

“Fair Pay and Safe Workplaces” Rules Head to White House for Final Review

Posted in Ethics & Compliance, Labor & Employment
On May 4, 2016, the FAR Council’s draft final rules and the Department of Labor’s draft final guidance implementing the “Fair Pay and Safe Workplaces” Executive Order arrived at the White House’s Office of Information and Regulatory Affairs (OIRA) for review, setting in motion the final steps prior to the issuance of burdensome new compliance… 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

No Double-Dipping: Board Lacks Jurisdiction Over New Theories Asserted in Government’s Amended Answer

Posted in Claims, Cost/Cost Accounting
In AeroVironment, Inc. (Mar. 30, 2016), following an apparent settlement of the government’s cost disallowance claim, the ASBCA denied the government’s request to amend its answer (in order to “clarify” entitlement to additional quantum) because the proposed amendments constituted new “claims” that required new final decisions.  Acknowledging that parties may ordinarily revise quantum without running… Continue Reading

Acting Army Secretary Directs the End of “Use or Lose” Spending

Posted in Cost/Cost Accounting
On April 15, 2016, the Acting Secretary of the Army issued Army Directive 2016-16 (Changing Management Behavior: Every Dollar Counts) stating that the Army will “eliminate ‘use or lose’ funding practices,” i.e., “commanders and staffs will not automatically decrement commands or programs in future allotments when they do not spend all funds without further investigation… 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

And Now the Carrots: DOJ Announces FCPA Self-Reporting Pilot Program

Posted in International Contracting/FCPA
On April 5, 2016, the Fraud Section of the Department of Justice’s Criminal Division launched a one-year pilot program under which companies can receive tangible credit for self-reporting violations of the Foreign Corrupt Practices Act. The rewards for self-reporting, cooperation and remediation can include avoidance of a corporate monitor, a substantial fine reduction, or declination… Continue Reading

Preparing for Fair Pay & Safe Workplaces — Previewing Violation and Remediation Information with the Government

Posted in Labor & Employment
By now, government contractors are largely aware of the information gathering and reporting requirements of the Fair Pay & Safe Workplaces Proposed Rule (“Fair Pay”), but whether and how to package the information proactively for the government has received less attention. Contractors would also be well served to consider their messaging and outreach efforts in… Continue Reading