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Criminal Investigations and the False Claims Act

In this episode, Steve Byers, Jason Crawford, and Agustin Orozco discuss the intersection between False Claims Act investigations and parallel criminal proceedings. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act. | PodBean | SoundCloud | Apple

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Offerors understand that missing a submission deadline can sink even the best proposal because “late is late.”  But what happens when an offeror timely emails its proposal only to have an agency server reject it without any notification to the offeror?  GAO’s recent decision in Guidehouse, Inc., B-422115.2, Jan. 19, 2024, says that the proposal is still late and emphasizes the potentially draconian impact of the “late is late” rule.Continue Reading The Agency’s Email Server Ate My Proposal! – GAO Rejects Challenge to “Late is Late” Rule

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Salary-History Bans and Pay Transparency, Section 3610 of the CARES Act

This week’s episode covers a proposed rule on salary-history bans and pay transparency for job applicants and employees of federal contractors and subcontractors, a claim relating to Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, new requirements for U.S.-based Infrastructure

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In Vanda Pharmaceuticals, Inc. v. United States, No. 23-629C (Fed. Cl. 2024), 2024 WL 201890, the Court of Federal Claims (COFC) addressed whether government disclosure of a company’s trade secrets and commercial information could create a viable claim for a taking under the Fifth Amendment or for breach of an implied-in-fact contract.  The company, Vanda Pharmaceuticals (Vanda), claimed that the government’s disclosure of its confidential trade secrets—including its trademarked drugs’ dissolution rates—to competitors seeking U.S. Food and Drug Administration (FDA) approval of generic drug alternatives was an unlawful regulatory taking that diminished the value of Vanda’s brand name drugs and infringed upon Vanda’s right to exclude generics from the market.  The government moved to dismiss Vanda’s claims for lack of subject matter jurisdiction and for failure to state a claim.  The COFC denied the government’s motion in part, holding as a matter of first impression that Vanda adequately stated a takings claim based on the government’s disclosures but failed to state a claim for breach of an implied-in-fact contract.  The COFC also held that Vanda’s claims involving one generic drug manufacturer were outside the Tucker Act’s six-year statute of limitations and were time barred. Continue Reading Does Government Disclosure of a Company’s Trade Secrets Amount to an Unlawful Taking Under the Fifth Amendment?  

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Following a January 29, 2024 White House announcement and Fact Sheet, on January 30, 2024, the Federal Acquisition Regulation (FAR) Council issued a Notice of Proposed Rulemaking (Proposed Rule) on salary-history bans and pay transparency for applicants and employees of federal contractors and subcontractors. On the same day, the Office of Federal Contract Compliance Programs (OFCCP) issued some FAQs on the compensation history issue. These actions by the federal government to ban prior salary information and require compensation information in job postings echo the efforts of multiple states and municipal governments that have enacted similar salary history bans and/or compensation disclosure requirements:Continue Reading Show Me the Money: Contractors and Subcontractors May Soon Be Subject to Pay Transparency Requirements, Which May Also Trigger New Bid Protest Issues

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On January 29, 2024, the Department of Commerce released a proposed rule:  Taking Additional Steps To Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities, which solicits comments regarding a proposed  new set of regulations that would introduce significant new requirements for U.S.-based Infrastructure as a Service (IaaS) providers.  The proposed rule implements requirements from the January 2021 Executive Order Taking Additional Steps To Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities and part of the October 2023 Executive Order Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.  If Commerce implements the regulations as proposed, IaaS providers would be required to create a Customer Identification Program (CIP), ensure any foreign resellers maintain a CIP, track all customer identities, verify the identities of foreign customers, and report certain transactions implicating large AI models that could be used for malicious cyber-enabled activities.  The Department is soliciting comments on all aspects of the proposed rule by April 29, 2024.Continue Reading Who I(aa)S Your Foreign Customer? Department of Commerce Proposes Foreign Customer Identification Requirements For U.S. IaaS Providers

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On January 31, 2024, the Department of Defense (DoD) updated the 1260H List of entities identified as “Chinese military companies” operating in the United States, as it is required to do at least annually by Section 1260H of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021.  Section 1260H defines a “Chinese military company” as an entity that is:Continue Reading DoD is Making its List, and Checking it Twice: DoD Updates 1260H Chinese Military Companies List

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Limitations on Subcontracting, National Defense Industrial Strategy, Suspension/Debarment

This week’s episode covers a proposed rule regarding limitations on subcontracting, DOD’s National Defense Industrial Strategy, a proposed rule seeking to amend the FAR in order to enhance consistency between the suspension and debarment procedures in the FAR and in the Nonprocurement Common Rule system, and is

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On remand from the U.S. Court of Appeals for the Federal Circuit, in ECC International Constructors, LLC, ASBCA Nos. 59586, 59643, the Armed Services Board of Contract Appeals concluded that, by waiting until after a hearing on the merits and six years after the appeal was filed, the government forfeited its right to challenge the contractor’s satisfaction of the FAR’s sum-certain requirement for Contract Disputes Act claims.Continue Reading Wait Too Long and You Might Miss Sum-Thing: ASBCA Again Underscores that Failure to Timely Raise Sum-Certain Defense Can Result in Forfeiture Under New Federal Circuit Precedent

Though not the first sustain of 2024 (click here for our writeup of 2024’s first sustain), GAO’s decision in American Material Handling, Inc. provides an informative discussion of the level of scrutiny agencies face when conducting “brand name or equal” procurements.  In American Material, the International Boundary and Water Commission sought a contractor to provide a brand name or equal “Caterpillar 980 wheel loader.”  The requirement was competed among Federal Supply Schedule holders under FAR subpart 8.4.  The request for quotations (RFQ) included a two-page specification sheet identifying the salient characteristics of the wheel loader equipment and stated that award would be made on a lowest price, techncally acceptable basis.  Two vendors responded to the RFQ – Caterpillar offered its own brand name equipment and American Material offered a Volvo L220H wheel loader.  After receiving quotations, the agency added several additional salient characteristics to the technical evaluation form, then concluded that American Material’s equipment did not meet these new characteristics.  Thus, although American Material offered the lower price, the agency awarded to Caterpillar because American Material’s equipment was evaluated as technically unacceptable for failing to meet the newly added requirements.   Continue Reading January 2024 Bid Protest Sustain of the Month