This special edition of the Fastest 5 Minutes podcast covers common questions—and answers—about a potential government shutdown. 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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Congress has not passed crucial funding bills for the start of the fiscal year 2024. If Congress does not act by September 30, the government may be forced to shut down for lack of funding. While Congress may yet act, agencies across the government are preparing for a shutdown, and contractors should do so as well.
The issues that contractors would face under a government shutdown may vary with the circumstances of individual contracts, but there are a number of common considerations.
Continue Reading Common Questions—and Answers—About A Potential Government Shutdown
On September 6, 2023, the Department of Energy (DOE) issued a Class Deviation removing the FAR 52.204-7 requirement that a contractor maintain its System for Award Management (SAM) registration for the entire time from proposal submission until contract award, without any lapse. As background, FAR 52.204-7 has since 2018 provided that “[a]n Offeror is required
A False Claims Act (FCA) settlement recently announced by the U.S. Department of Justice stands at the intersection of two evolving trends: DOJ’s increasing focus on cybersecurity lapses by government contractors as part of its Civil Cyber-Fraud Initiative, and DOJ policies incentivizing corporations to voluntarily self-disclose violations of federal law.
On September 5, 2023, DOJ announced a $4 million settlement with Verizon Business Network Services LLC (Verizon) addressing allegations that Verizon violated the FCA because certain telecommunications services it provided to federal agencies under its General Services Administration (GSA) contracts did not comply with applicable cybersecurity requirements, namely the Office of Management and Budget’s Trusted Internet Connections (TIC) initiative. DOJ specifically alleged that Verizon’s Managed Trusted Internet Protocol Service (MTIPS)—an information technology service that allows federal agencies to securely connect to public internet and external networks—did not comply with three security controls in the Department of Homeland Security’s TIC Reference Architecture Document, including a control that required the use of FIPS 140-2 validated cryptography. The Verizon settlement represents the latest example of DOJ’s continued focus on cybersecurity cases, a trend that we believe will only continue to escalate going forward.
Continue Reading Civil Cyber-Fraud Settlement Highlights Potential for Cooperation Credit
On August 23, 2023, the Office of Management and Budget (OMB) released its final rule and notification of final guidance addressing implementation of the Build America, Buy America Act (BABA) provisions enacted with the Infrastructure Investment and Jobs Act (IIJA), which requires the use of domestic iron, steel, manufactured products, and construction materials in infrastructure projects supported with federal financial assistance. The final rule goes into effect October 23, 2023, and applies to federal awards for infrastructure projects awarded after November 15, 2021. We previously reported on OMB’s February 9, 2023 proposed guidance here.
On August 25, 2023, in ECC CENTCOM Constructors, LLC v. United States, COFC No. 21-1169, the U.S. Court of Federal Claims (“the Court” or “COFC”) barred ECC CENTCOM Constructors, LLC (“ECC”) from asserting claims that should have been asserted before the Armed Services Board of Contract Appeals (“ASBCA”) citing the doctrine of claim preclusion.
At the ASBCA, ECC had appealed a termination for default and sought time extensions and damages due to excusable delay. The Board dismissed ECC’s appeal, finding that the Contracting Officer (“CO”) acted reasonably in terminating the contract and finding that ECC failed to present its excusable delay claims to the CO as required under M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010). ECC requested a stay to allow it time to present its delay claims to the CO, but the Board denied the request stating that it was untimely and futile because ECC’s own expert testified that less than half of the delays were excusable, which meant that the CO’s termination decision would still be justified. ECC appealed the ASBCA’s decision to the U.S. Court of Appeals for the Federal Circuit, where the Board’s decision was affirmed.
In StructSure Projects, Inc., ASBCA No. 62927, the Armed Services Board of Contract Appeals (Board) granted an appeal seeking recovery for increased costs resulting from the COVID-19 pandemic. The underlying task order involved design and alteration services for existing medical facilities at Travis Air Force Base, and included a specific Contract Line Item Number (CLIN) for the provision of temporary phasing facilities that the Government could use while the construction work was ongoing. When the pandemic began in March 2020, StructSure and its subcontractors had to stop their on-site construction work for 44 days because the Government had limited base access for contractors deemed to be not mission-essential. StructSure later sought schedule and monetary relief, but the Government only granted schedule extensions under the Default clause.
When faced with a dissatisfying debriefing, a contractor may choose to respond to the agency to question or even rebut its evaluation. However, the recent Government Accountability Office (GAO) decision in NikSoft Systems Corporation (NikSoft) serves as an important reminder that those communications can be interpreted as agency-level protests, with potential to render subsequent GAO protests untimely.
In this episode, Jason Crawford, Olivia Lynch, and Agustin Orozco discuss government investigations and enforcement trends regarding pandemic relief fraud. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.
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Proposed U.S. Outbound Investment Regulations
The Outbound Investment Program will be implemented through regulations issued by Treasury that will require notification for, or will otherwise prohibit U.S. persons from undertaking, certain transactions involving “covered national security products or technologies” and entities connected to a “country of concern.” Accordingly – concurrent with the Executive Order – Treasury released an Advance Notice of Proposed Rulemaking that provides some potential definitions of these terms, but the exact definitions and the details of the regulations will be developed through public notice and comment that concludes on September 28, 2023. Treasury also published a Fact Sheet that provides additional information on the proposed details and scope of the outbound investment prohibitions and notification requirements, which will likely not be finalized until 2024 sometime after Treasury has published draft regulations and gathered another round of public comments.
Continue Reading Executive Order and Rulemaking on U.S. Outbound Investment