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This week’s episode covers OFCCP’s new proposed Directive regarding Functional Affirmative Action Programs, DOJ’s settlement with a contractor to resolve alleged violations of the False Claims Act and Anti-Kickback Act, the latest on the government’s authority to dismiss a relator’s qui tam action pursuant under the False Claims Act, and the proposed legislation entitled “Stop

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On June 23, 2022, a federal grand jury returned an indictment against Army contractor Envistacom LLC and two of its executives alleging participation in a fraudulent scheme that deprived the federal government of competition and making false representations to the government in furtherance of the conspiracy. The indictment also charged the executive as a co-conspirator, and asserts the conspirators coordinated in the preparation of so-called “competitive quotes” submitted in connection with 8(a) set aside contracts. The quotes were allegedly fraudulently inflated in order to all but guarantee the government customer would sole source the award to the conspirators’ pre-determined bidder. This indictment represents the fruits of yet another investigation by the Department of Justice’s Procurement Collusion Strike Force (“PCSF”).

According to the indictment, the defendants conspired to prepare and secure “sham” pricing quotes from third-party companies that were intentionally higher than Envistacom’s proposals to ensure that the government issued sole source awards to Envistacom. Further, the defendants allegedly coordinated with an unnamed government employee who acted as a co-conspirator and assisted in preparing and submitting Independent Government Cost Estimates (“IGCE”) for certain set aside contracts to ensure that the pre-determined bidder’s proposal would be lower than the IGCEs. Finally, the indictment alleges that the defendants made “false statements, representations, and material omissions to federal government contracting officials” about the IGCEs being “legitimate” and the sham quotes being “competitive.”

Continue Reading Procurement Collusion Strike Force Nabs Another Military Contractor in Bid Rigging Scheme

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Yesterday, the U.S. Supreme Court granted certiorari in Polansky v. Executive Health Resources Inc., No. 19-3810 (3d Cir. Oct. 28, 2021), which involves the Government’s authority to dismiss a relator’s qui tam action pursuant to 31 U.S.C. § 3730(c)(2)(A) of the False Claims Act. In Polansky, the U.S. Court of Appeals for the Third Circuit held the Government must intervene in FCA suits before moving to dismiss and that, where responsive pleadings have been filed, a court has wide discretion to permit or deny the Government’s exercise of dismissal authority. This cemented two circuit splits. The first split is between the Third, Sixth, and Seventh Circuits, which require the Government to intervene before moving for dismissal of an FCA suit, and the D.C., Ninth, and Tenth Circuits, which do not require the Government to intervene before moving for dismissal of an FCA suit at any point in the litigation. The second is a three-way split among the Circuits regarding the standard of review a court must apply when determining whether the Government can dismiss a qui tam action over a relator’s objection: the Third and Seventh Circuits apply the Rule 41(b) standard, the D.C. Circuit considers the Government’s dismissal authority unfettered, and the Ninth Circuit applies a “rational relation” test requiring the Government to demonstrate a valid government purpose and a “rational relation” between the dismissal and that government purpose. The Supreme Court is now poised to resolve both of these splits.

Continue Reading U.S. Supreme Court Poised to Resolve Two FCA Circuit Splits

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Crowell & Moring’s 35th annual Ounce of Prevention Seminar (OOPS) is just around the corner, taking place on May 7 and 8 at the Renaissance Hotel in Washington. At this year’s seminar, “The Challenging Climb to Reach New Heights,” the Government Contracts Group will provide updates and insight in a variety of areas, including ethics

This week’s episode covers government shutdown, trafficking in persons policy, and False Claims Act 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.

With national elections just around the corner, the steady drumbeat of new labor-related requirements has not waned.  Indeed, four national trade associations wrote to the White House in August requesting “that no further presidential directives primarily focused on government contractors be issued for the foreseeable future.”  The letter cited the 16 contractor-focused regulations issued by the Obama Administration that have resulted in a significant increase in the cost of doing business with the government.

Continue Reading OOPS Preview: Executive Actions: How Do Contractors Deal with Labor-Related Burdens?

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The Government Contracts Group is getting excited to kick off the 2016 OOPS Seminar, titled, “Government Contractors Under the Magnifying Glass.” This year’s event will be held on May 25-26 at the Washington, D.C. Renaissance Hotel. For those on the west coast, we will also have a special one-day session in Los Angeles at the Marina del Rey Marriott on May 18.

Today we check in with partner Amy Laderberg O’Sullivan to hear more about what’s in store for this year.

GC Legal Forum: Amy, tell us more about OOPS and how it got started?

Amy: OOPS has been a longstanding event within Crowell & Moring’s Government Contracts Group, and it has a really impressive history – this is the 32nd year. It began as an idea of hosting a seminar for clients just around the time that the “war on fraud” was beginning to take off. The thought was to show clients our capabilities and give them the practical advice to deal with this new and changing environment, and to make sure they knew all of the recent developments. One of our founding partners, Took Crowell, came up with the OOPS name as a bit of tongue in cheek humor: an ounce of prevention, with the real focus on fraud, would provide the informational perspective and help clients avoid running into problems.

Continue Reading Sneak Peek: Ramping up for OOPS with Partner Amy Laderberg O’Sullivan

This is the last part of a five-part series will help answer the question “how do I know which lawyer is right for me?” by breaking the analysis down into vitally important component parts.

QUESTION 5: HOW DO I EVALUATE LAWYER COSTS?
There is no question that legal fees are a concern for growing contractors.