Government Contracts Legal Forum

Incumbent Employees’ Self-Disclosure of Salaries is Not a Procurement Integrity Act Violation

Posted in Bid Protest, Legal Developments
Olivia LynchPayal Nanavati

In AlliantCorps, LLC, B-415744.2, the Government Accountability Office (GAO) denied a protest by AlliantCorps, LLC (Alliant) alleging violations of the Procurement Integrity Act (PIA) by the Department of the Navy (Navy) following Alliant’s prior protest of a task order award to DKW Communications, Inc. (DKW).  Alliant asserted that DKW improperly received Alliant’s bid and proposal information when its proposed subcontractor’s labor rates were furnished to DKW “at the direction of the Navy.”  GAO found that the facts asserted could not form the basis of a PIA violation because the employees voluntarily disclosed their salary information to DKW.

The Navy initially awarded the task order seeking software maintenance services to DKW.  As part of its transition effort, DKW sent an email to Navy personnel providing a link to DKW’s employment application website.  After the Navy provided Alliant with its debriefing, Navy personnel forwarded DKW’s email soliciting employment applications to personnel working on the incumbent contract for Alliant’s proposed subcontractor.  Alliant subsequently protested the evaluation underlying the award challenging the Navy’s past performance evaluation and discussions, which prompted the Navy to take corrective action to clarify the solicitation and make a new source selection decision.

Continue Reading

Join us for the Annual Toxic Substances Control Act

Posted in Events
Paul FreemanWarren LehrenbaumMichael Boucher

Achieving and maintaining compliance with the Toxic Substances Control Act (TSCA) continues to pose day to day challenges for a wide range of government contractors, made all the more challenging by recent amendments to the TSCA regime.  By governing the import, manufacture, and processing of chemical substances—together with the subsequent export, distribution, use, and disposal of those chemicals—TSCA touches your business in ways few grasp, yet carries significant risk of costly business disruptions and enforcement actions.

Join our colleagues in Environment & Natural Resources for an intensive seminar designed for attorneys, regulatory, customs, purchasing, product safety, research and technical professionals engaged in TSCA compliance.  The seminar will cover a wide range of topics:

  • How the Lautenberg Chemical Safety Act (LCSA) has changed TSCA
  • Complying with TSCA’s import and export requirements and its many reporting and recordkeeping requirements
  • Preparing premanufacture notices (PMNs) for new chemical substances not on the TSCA Inventory and using the many available PMN exemptions
  • Reporting to the U.S. Environmental Protection Agency (EPA) by October 5, 2018 your company’s past processing of chemical substances during the “look-back period” from June 21, 2006, to June 21, 2016
  • Understanding EPA’s new TSCA mandate to prioritize and evaluate the risks of existing chemicals on the TSCA Inventory
  • Complying with new TSCA reporting and recordkeeping requirements associated with importing, manufacturing or processing certain nanoscale substances in the USA
  • Managing TSCA compliance within your company

Please note that there is a fee associated with this program.  For more information, please click here.

OOPS 2018 Preview: Contractors and Cybersecurity

Posted in Cybersecurity, Events, Legal Developments
Michael Gruden

With even DoD officials acknowledging cyber threats ranging from exfiltrating our top military secrets (“the terabyte of death” per DISA’s Director) to seizing control of SECDEF’s car to sinking Navy vessels with critical infrastructure attacks, both federal agencies and government contractors are in the pressure cooker.  For contractors, bad cybersecurity not only opens the door to cyber espionage and privacy breaches followed by costly clean-up and lost trade secrets, but now – with the latest DoD guidance – may put critical contract awards at risk.  Join us this Thursday, May 17, at 1:00 PM Eastern, as Crowell & Moring attorneys Paul Rosen, Evan Wolff, David Bodenheimer, and Michael Gruden lead a discussion highlighting recent developments impacting the volatile privacy and cybersecurity sector.  Specific topics include:

  • Navigating Government Contracts Information Security and Privacy Risks:  Updates to NIST Cybersecurity Standards, Pending FAR Cyber Clauses, and DFARS Safeguarding Clause New Developments
  • Trekking the  Internet of Things (IoT) Cyber Frontier
  • Managing Effective Cyber Incident Response: Preparing Incident Response Plans, Practicing Tabletop Exercises, and Executing Effective Cybersecurity Defense

For more information and to register for OOPS, please click here.

Fastest 5 Minutes, The Podcast Gov’t Contractors Can’t Do Without

Posted in Legal Developments, Podcast
Peter J. Eyre

This week’s episode covers DFARS and SBA Mentor Protégé Program news and is hosted by partner Peter Eyre. 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. | PodBean | SoundCloud | iTunes 

OOPS 2018 Preview: 2017 M&A Highlights and Trends to Watch

Posted in Events, Legal Developments
Judy Choi

With over 1,700 government contracts M&A deals since 2015, M&A continues to be a significant factor in shaping the federal contracting market.  Join us on Thursday, May 18,2018, at 9:15 AM Eastern, as Crowell & Moring attorneys James Stuart, Karen Hermann, and Judy Choi along with special guest Tim Garnett, a Manager Director of Avascent, discuss key market trends as well as the latest developments and considerations in the government contracts transactions.  Specific topics include:

  • Market Trends
  • How to avoid and solve novation nightmares
  • Advent of transactional risk insurance
  • Due Diligence “hot spots”

For more information and to register for OOPS, please click here.

How Quickly Should Contractors Report Data Breaches? GAO Denies Protest Finding 12 Hours Is Not Fast Enough

Posted in Bid Protest, Cybersecurity
Christian CurranMichael Gruden

In Matter of: First Fin. Assocs., Inc., B-415713, Feb. 16, 2018, the Government Accountability Office (GAO) denied a protest filed by First Financial Associates, Inc. (FFA)  against an award by the Department of Homeland Security, U.S. Secret Service (DHS/USSS) to FEEA Childcare Services, Inc. (FEEA) for the administration of a childcare subsidy program.  FFA alleged that their proposal was not evaluated consistently with the RFP’s evaluation criteria regarding the protection of personally identifiable information (PII) incident reporting requirements.

Continue Reading

OOPS 2018 Preview: False Claims Act Investigations, Enforcement, and Litigation Trends

Posted in Events, False Claims, Legal Developments
Mana Elihu Lombardo

Are we experiencing a shift towards a higher bar for pursuing False Claims Act Cases?  Department of Justice guidelines may signal a new direction from the last two decades of DOJ FCA enforcement history through policies that reign in relators and articulate some boundaries for cases pursued by DOJ.  Meanwhile, Escobar progeny continues to develop  and refine the materiality requirement under the FCA.  Join us on May 17, 2018, at 8:30 AM Eastern, as Crowell & Moring attorneys Brian Tully McLaughlin, Mana Lombardo, Jason Crawford, and Nkechi Kanu lead a discussion highlighting recent developments impacting FCA investigation, enforcement, and litigation under the False Claims Act.  Specific topics include:

  • DOJ Enforcement Trends and Developments: What They Mean for Investigation and Litigation Strategy
  • The Continuing Emphasis on Materiality in the Wake of Escobar
  • Case developments and impacts

For more information and to register for OOPS, please click here.

Fastest 5 Minutes, The Podcast Gov’t Contractors Can’t Do Without

Posted in Legal Developments, Podcast
David B. RobbinsMonica DiFonzo Sterling

This week’s episode covers FedRAMP news, DOL news, and GSA schedule news, and is hosted by partner David Robbins and associate Monica Sterling. 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. | PodBean | SoundCloud | iTunes 

OOPS 2018 Preview: Navigating Uncharted Waters

Posted in Events
Crowell & Moring

Crowell & Moring’s 34th annual Ounce of Prevention Seminar (OOPS) is just around the corner, taking place on May 17 and 18 at the Renaissance Hotel in Washington. At this year’s seminar, “Navigating Uncharted Waters,” the Government Contracts Group will provide updates and insight in a variety of areas, including ethics and compliance, bid protests, False Claims Act enforcement, international issues affecting government contractors, and more.

Check back here for updates from our panelists, who will preview sessions on M&A diligence, cybersecurity, and False Claims Act enforcement.

For more information and to register for OOPS, please click here.

New Draft NIST Guidance on Systems Security Engineering

Posted in Cybersecurity, Legal Developments
Evan D. WolffPeter B. MillerMaida Oringher LernerKate M. GrowleyJudy ChoiMichael GrudenPayal Nanavati

The National Institute of Standards and Technology (NIST) recently published a draft special publication titled Systems Security Engineering: Resiliency Considerations for the Engineering of Trustworthy Secure Systems (Volume 2), which provides guidance to professionals responsible for the activities and tasks related to the system life cycle processes in NIST’s flagship publication, NIST Special Publication 800-160 Volume 1 (Volume 1).  Volume 2 is the first in a series of systems security engineering publications supplementing Volume 1, and describes how to apply cyber resiliency concepts, constructs, and engineering practices, as part of systems security engineering.

Volume 1 built upon well-established international standards for systems and software engineering to describe the actions necessary to develop more defensible and survivable systems.  Volume 2 describes cyber resiliency principles that organizations can select and apply to their own systems based on the organization’s threat environment.   These principles help organizations address certain types of advanced cyber-threats that have the capability to breach critical systems, establish a presence within those systems often undetected, and inflict immediate and long-term damage to economic and security interests.  Among other things, developers could look to the draft publication for guidance on how to increase the security of older legacy systems in order to limit potential hackers’ access in the event of a data breach.   NIST is accepting public comments until May 18, 2018.