Government Contracts Legal Forum

All Things Protest: Organizational Conflicts of Interest

Posted in Bid Protest, Podcast
Olivia LynchRob SneckenbergChristian Curran

Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, hosts Olivia Lynch, Rob Sneckenberg, and Christian Curran cover recent protest news and an organizational conflict of interest decision that highlights the differences between the natural advantages of incumbency and a potentially problematic unequal access to information conflict.

You can find the materials discussed in this episode here.

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

Posted in Bid Protest, Legal Developments, Podcast
David B. Robbins

This week’s episode covers tariff news, bid protest news, and bridge contract news, and is hosted by partner David Robbins. 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.

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GAO Lets Stand an Agency’s OCI Waivers in Face of a Multi-Prong Challenge

Posted in Legal Developments, Organizational Conflict of Interest
Olivia LynchDaniel WierzbaPayal Nanavati

In the face of an actual or potential organizational conflict of interest (OCI), the potential solutions are often limited. There are several options for contractors and the government that are broadly categorized as mitigation, avoidance, neutralization, limitations on future contracting, and exclusion. Although used sparingly, the FAR also provides that the government can “waive” actual or potential OCIs. Specifically, FAR 9.503 states: “The agency head or a designee may waive any general rule or procedure of this subpart by determining that its application in a particular situation would not be in the Government’s interest.”

A recent GAO decision sheds light on how contractors and agencies should think about OCI waivers. CACI, Inc.-Federal; General Dynamics One Source, LLC, B-413860.4, et al., Jan. 5, 2018.

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Steel and Aluminum Tariffs: Recovery and Risk Reduction for Federal Contractors

Posted in Cost/Cost Accounting, Legal Developments
Peter J. EyreJ. Chris HaileSteve McBradyBrian Tully McLaughlinGail D. Zirkelbach

On March 1, the President announced his intention to impose tariffs of 25% on all imported steel and 10% on all imported aluminum. A more formal announcement of the tariffs is expected in the coming week and, while many might have been surprised by the timing of the President’s initial statement, it came after a 10-month process of investigation by the U.S. Department of Commerce, culminating with its January 2018 recommendation for tariffs or quotas to protect U.S. producers. The Commerce Department reports are available here and here.

When finalized, these tariffs could have significant impacts on contractors across a range of industries, increasing costs of performance and restricting available supply. Domestic prices are expected to rise, and foreign suppliers may turn their focus to other markets. Supply disruptions are possible, particularly in the short term. To protect themselves, federal contractors who manufacture or use products with steel or aluminum should examine existing contracts, re-evaluate bids being developed, and consider revisions to standard contract terms.

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No Cost Compliance Check-Up for Government Contractors

Posted in Legal Developments
David B. RobbinsAdelicia R. CliffePeter J. EyreSteve McBrady

Crowell & Moring is pleased to offer a no-cost review of common compliance issues that can drive down sales price or increase borrowing costs for emerging government contractors, as well as prevent purchasers from receiving full value for their investments.  Government contractors face a long road to sale, fundraising, and post-acquisition integration – these processes can be derailed easily by compliance missteps, recordkeeping problems, or a multitude of other issues that may not be top-of-mind for sellers and even some purchasers.  Once diligence begins, addressing these issues becomes significantly more expensive and problematic.

At Crowell & Moring, we believe in long-term strategic partnerships with our clients and stand ready to proactively assist with an analysis of potential compliance issues very early in the sale/fundraising process to avoid diligence or post-acquisition surprises.  With knowledge across the whole range of government contract issues, we are well suited to evaluate a company’s government business  and identify non-obvious (but very real) areas of risk.

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Will the Procurement Process Change in 2018? Read “Government Contracts: Will Purchasing Be Streamlined?” – Part of Crowell & Moring’s 2018 Regulatory Forecast

Posted in Legal Developments
Robert BurtonLorraine M. CamposOlivia LynchElizabeth Buehler

Crowell & Moring has issued its “Regulatory Forecast 2018: What Corporate Counsel Need to Know for the Coming Year.”

The section focusing on government contracts, “Will Purchasing Be Streamlined?” provides an overview of how the procurement process might be made more efficient, and this time, government contractors might be able to weigh in on the changes.

It is clear digital technology is driving the future of business across a wide range of industries while Washington, as well as state and global regulators, is forging the appropriate balance between fostering innovation and protecting consumers. This report is the companion piece to the firm’s 2018 Litigation Forecast, which was published in January and also focused on the opportunities and challenges general counsel face in navigating the Big Data revolution.

Be sure to follow the conversation on Twitter with #RegulatoryForecast.

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

Posted in Cybersecurity, Legal Developments, Podcast
David B. RobbinsPeter J. Eyre

This week’s episode covers budget news, the Brand memo, and cybersecurity news, and is hosted by partners Peter Eyre and David Robbins. 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.

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NDAA Lobbying Restrictions – Not As Onerous As Many Seem to Fear

Posted in Ethics & Compliance
David B. RobbinsPeter J. Eyre

There is a substantial amount of confusion and concern about Section 1045 of the 2018 National Defense Authorization Act (NDAA), entitled “Prohibition on lobbying activities with respect to the Department of Defense by certain officers of the Armed Forces and civilian employees of the Department following separation from military service or employment with the Department.”  As with other acquisition-oriented, late breaking additions to the NDAA in years past (like acquisition prohibitions following felony convictions of companies or principals that were so broad that an executive speeding 15 miles an hour over the limit in Virginia, which is a felony, could eliminate the company from eligibility for contracts), guidance in Section 1045 is not as complete as industry would like.  But the rule is not terribly burdensome, either.

Very senior uniformed and civilian Department of Defense employees such as General Officers and their civilian equivalents (presumably members of the Senior Executive Service), face restrictions on “lobbying activities” and “lobbying contacts” with respect to the Department of Defense.  Section 1045 refers readers to the Lobbying Disclosure Act of 1995 (2 U.S.C. Section 1602) for definitions of relevant prohibitions, and exceptions from prohibitions.  And the Lobbying Disclosure Act offers comfort that substantial activities are still permissible.  Yes, representation back to the Department of Defense is more limited under Section 1045 of the 2018 NDAA than it was before, but not severely so.  And contractors already must monitor representation back to these officials’ former offices.  Section 1045 extends the monitoring requirement a bit farther.

It appears that industry is overly focused on the bolded and italicized wording of the Lobbying Disclosure Act’s definition of lobbying activity, ‘[t]he term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others. The term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.’  This language poses a new compliance challenge for contractors because, in the post-employment context, behind the scenes work while waiting out a restriction is typically acceptable (putting aside for these purposes organizational conflicts of interest and other non-statutory considerations).  But for general officers and senior executive service members, Section 1045 presents an additional one- or two-year restriction (depending on their seniority) that can restrict even some “behind the scenes” work directly associated with lobbying.

But substantial lobbying related work is still permitted.  Indeed, there are 24 exceptions in the Lobbying Disclosure Act that permit lobbying related activity, including but not limited to: speeches, articles, publications, interviews, media appearances, meeting requests or similar administrative requests, service on advisory committees, responding to public notices in the Federal Register and other invitations for written submissions, written comment, public written petitions to an agency under certain circumstances, among other things.  In short, newly separated very senior Department of Defense Officials will not need to sit around doing nothing to wait out this restriction – plenty is still permitted.

Contractor concern may be driven by the merging of political law and government contracts law for this limited number of very senior, former Defense Department officials.  But the compliance steps are relatively straightforward, particularly if contractors already had a robust approach to complying with the restrictions in place before Section 1045 became effective.  Contractors are well advised to track for a year or two (depending on seniority) their former Defense Department general officers and equivalents, train them on these restrictions, and conduct a Lobbying Disclosure Rule driven analysis for communications back to “covered Executive Branch Officials.”

Top Five Bid Protest Topics in 2017

Posted in Bid Protest, Legal Developments
Christian CurranOlivia LynchRob Sneckenberg

With 2017 firmly in the rear-view, it’s time to take stock of recent and anticipated bid protest developments.  Today, we’ll look back and highlight five of the most significant trends in 2017 bid protests.  In the near future, we’ll turn our gaze forward and predict the five most important protest developments to keep an eye on in 2018.

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

Posted in Legal Developments, Podcast
Peter J. EyreJ. Chris HaileElizabeth Buehler

This week’s episode covers commercial items and the 809 report, and is hosted by Peter Eyre, Chris Haile, and Elizabeth Buehler. 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.

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