Suspension and debarment practice in 2017 is very different than it was just five or 10 years ago, and it continues to evolve. Historically active programs, such as the Department of the Air Force, show few actions initiated in the last three months, while the Environmental Protection Agency has been heavily involved in excluding contractors and awardees. Awareness of the current activity level and preferences of relevant agency suspension and debarment offices is one key to successfully managing your relationship with key federal agencies. But successfully navigating the current suspension/debarment landscape is often more complicated than a single agency analysis.
On May 16, 2017, the Fourth Circuit issued a decision in United States ex rel. Omar Badr v. Triple Canopy, holding that the Government had properly alleged an implied certification claim under the standard articulated by the Supreme Court in Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). In the eleven months following the Supreme Court’s landmark ruling on the implied certification theory of liability, Escobar has been cited in nearly 100 court opinions. (Our recent Feature Comment in the Government Contractor highlights some of the key cases and developing trends).
In Badr, the relator alleges that a security contractor responsible for ensuring the safety of an air base in a combat zone employed Ugandan guards who were unable to meet the required marksmanship scores on a U.S. Army qualification course. According to the relator, Triple Canopy knowingly falsified marksmanship scorecards and presented claims to the government for payment for those guards.
Please join us for an evening of conversation and cocktails while our panelists from the commercial, industrial, government contracting, higher education, and insurance arenas discuss critical emerging cyber security issues. From the dark web, to cyber pitfalls, cybersecurity policy and legislation, and how to ensure a secure future, our panel discussion will explore the rapidly expanding world of cybersecurity and debate best practices for protecting yourself, your clients, and your business.
When: Thursday, May 18, 2017
Address: 1001 Pennsylvania Avenue, NW
Washington, DC 20004
For more information, register here.
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. This latest edition is hosted by partner David Robbins and includes updates on the GAO Data Act report and Organization Conflicts of Interest decisions, President Trump’s recent executive orders, and notable data breach case law.
Many of the panels last week at Crowell & Moring’s Ounce of Prevention Seminar garnered special attention in this presidential transition year, and the cybersecurity session was no exception. The panel featured Paul Rosen, who joined Crowell & Moring as a partner on April 27. Paul most recently served as chief of staff to former Department of Homeland Security Secretary Jeh Johnson, and offered unique insights on the cybersecurity landscape.
Paul discussed the impact of cybersecurity incidents in both the public and private sectors. “The OPM data breach really set the stage for both government and corporate cyber preparation and responses,” he said at the May 4 panel.
The government experience on the panel also included moderator Peter Miller, who served as the Federal Trade Commission’s Chief Privacy Officer, and Privacy & Cybersecurity Group co-chair Evan Wolff, who advised senior leadership at DHS and other federal agencies. Kate Growley, a counsel in the firm’s Privacy & Cybersecurity Group, also participated in the session, which covered incident preparation and responses, DFARS/FAR/NIST, insider threats, investigations, governance, and vendor management.
Other takeaways from the panel included:
- Companies are not judged for having a data breaches, but are judged on how they react. –Evan Wolff
- Contractors should take advantage of DoD’s upcoming Industry Information Day to solicit and hear feedback regarding the latest cyber contracting clauses. –Kate Growley
- Cyber criminals are using the internet of things, that is, interconnected devices, to conduct increasingly sophisticated and far-reaching attacks. –Paul Rosen
To relive the action, check out the #cm2017oops hashtag on Twitter.
Our 33rd annual Ounce of Prevention Seminar has come to a close and was a great success. Thank you to all of our attendees and panelists who participated in the event, which covered a range of topics from investigations and cybersecurity to labor and employment. This year’s agenda particularly focused on how contractors are navigating the uncertainty and regulations of a new presidential administration.
Stay tuned for additional recap updates. You can browse the live tweets from the event by checking out the #cm2017oops hashtag on Twitter.
We’ve wrapped up our preview posts, which gave a sneak peek at just a few of tomorrow and Friday’s OOPS panels, including investigations, privacy and cybersecurity, international procurement, and cost and pricing issues.
It’s not too late to register for the event! Click here for details and directions.
We’ll see you tomorrow at the Renaissance Hotel in Washington, D.C.! The full agenda can be viewed here.
During the past year, we have continued to see developments on cost and pricing issues, particularly with respect to the 2017 National Defense Authorization Act (“NDAA”). On May 5, 2017 from 11:00 am – 12:00 pm, Crowell & Moring attorneys Terry Albertson, David Bodenheimer, Chris Haile, Steve McBrady and Liz Buehler will highlight some of the cost and pricing issues that government contracts are currently encountering with respect to commercial acquisitions, management of subcontractors, statute of limitations, intersegment pricing and DCAA audits, as well as the following regulatory developments:
- 2017 NDAA Provisions Affecting DCAA and the Cost Accounting Standards (“CAS”) Board
- Creation of a Defense CAS Board
- 2016 NDAA Section 809 Panel Update, including CAS and other accounting issues.
The Trump Administration’s first 100 days shed little light on how it will reconcile an America First trade policy with insistence on more robust defense spending by our allies. On May 5, 2017, at 8:30 AM Eastern, Crowell & Moring attorneys Adelicia Cliffe, Alan Gourley, Yuan Zhou, and Jana del-Cerro will lead a discussion highlighting some of the most significant areas caught in the cross-fire, and how – if at all – these areas may continue to be affected under the new Administration. Specific topics include:
- National Security reviews of Steel and Aluminum imports
- Buy American and other domestic preferences
- New Foreign Military Financing Guidelines
- Sanctions and Continuation of Export Control Reform
The contracting community is hurrying to keep pace with the bevy of recent privacy and cybersecurity requirements incorporated into their government contracts across all agencies. On May 4, 2017, at 1:45 PM Eastern, Crowell & Moring attorneys Evan Wolff, Peter Miller, Mark Ries, and Kate Growley will lead a discussion to help contractors wrap their heads around this flurry of activity. Specific topics will include:
- Covered defense information
- Controlled unclassified information
- Insider threats
- Privacy training requirements
- M&A cyber due diligence
- Vendor management
- General Data Protection Regulation (GDPR)