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Government Contracts Advisor

Industry Insights & Analysis

Join NCMA and MLA’s Todd Canni in a Discussion on Developments & Issues on Debarments and Suspensions

Posted in Suspension & Debarment

When Friday April 18, 2014 from 8:30 AM to 10:30 AM EDT Networking & Breakfast Starts at 7:30 AM

Where: Washington Technology Park Conference Center 15000 Conference Center Drive Chantilly, VA 20151

Suspension, debarment or exclusion from government contracts or other transactions with the federal government can have devastating consequences to companies that rely on the federal government for business as a prime contractor, subcontractor or grantee. Being listed on the government’s “Excluded Parties List” not only renders the company ineli gible for federal government work, but can have collateral consequences such as ineligibility to obtain federal export licenses or debarment from state and local contracts. Companies can be suspended or debarred based on a criminal conviction or finding of civil fraud not directly related to the performance of a government contract, grant or transaction. In addition, a criminal violation of certain laws, such as the Clean Air Act and Clean Water Act, require that a company be debarred.

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Recently Released Policy Statement of the Department of Justice and Federal Trade Commission Clarifies that Sharing Cyber Threat Information Likely Does Not Raise Antitrust Concerns

Posted in Cybersecurity

The blog post was co-authored by Beth Ferrell, Erin Sheppard and Katherine Veeder

Announcing their belief that antitrust is not, nor should be, “a roadblock to legitimate cybersecurity information sharing,” on April 10, 2014, the Department of Justice, Antitrust Division and the Federal Trade Commission published an Antitrust Policy Statement on Sharing of Cybersecurity Information (the “Policy Statement”) explaining the three-step analysis the two agencies will use to evaluate whether information sharing agreements between two private entities raise antitrust concerns.  Notably, the Policy Statement confirms that under the fact-driven analysis, programs and agreements to share cyber information generally will not implicate antitrust concerns.  More information on the three-step process and how it will affect contractors can be found in our recently published advisory found here.

Navigating the Overlap Between President Obama’s “Equal Pay” Orders for Federal Contractors and the NLRA

Posted in Labor & Employment, Legislative & Regulatory

On April 8, 2014, President Obama signed an Executive Order directing the Department of Labor (“DOL”) to propose new regulations and rules to prohibit Federal contractors from discriminating against employees for inquiring, discussing or disclosing their compensation, or the compensation of other employees.  The new order, entitled “Non-Retaliation For Disclosure of Compensation Information,” amends Executive Order 11246 of September 24, 1965, which prohibits federal contractors and federally-assisted construction contractors and subcontractors who do over $10,000 in Government business annually from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.

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MLA DC Office to Host ABA Committee Panel On Federal Public Private Partnership (P3) Transactions and the Future of the OMB Scoring Rules

Posted in Public Private Partnerships

On Thursday, April 10, 2014, at noon MLA’s DC office will host the ABA PCLS Privatization, Outsourcing and Financing Transactions Committee’s monthly meeting, which will feature a panel discussion on setting standards for Federal Public Private Partnership (P3) transactions and the impact of the OMB scoring rules.   Panelists will include:

  • Dorothy Robyn (former Commissioner, Public Buildings Service for the General Services Administration, and former Deputy Under Secretary of Defense for Installations and Environment),
  • Domenic N. Savini (Assistant Director, FASAB), and
  • Steve Sorett (MLA Senior Counsel and FASAB Advisory Board Member).

Panelists will discuss the efforts of the Federal Accounting Standards Advisory Board’s (FASAB) P3 Task Force, which circulated an Issue Paper in December 2013, and in February 2014 completed a draft Exposure Draft entitled “Public-Private Partnerships: Disclosure Requirements”.  The panelists also will address the challenges that P3s face as a result of the current OMB scoring rules, and what the future holds in this area. 

If you have any questions about the panel, or would like to attend either in-person or via phone, please contact Marques Peterson or me.

West Coast Annual Seminar Featuring former FAA Deputy Director John McGraw as the Keynote

Posted in Government Contracts Briefing Series

For those of you reading this on the West Coast, I wanted to share some exciting news about our Los Angeles Spring Seminar event.  We have secured former FAA Deputy Director John McGraw for our lunch presentation.  Specifically, Deputy Director McGraw and MLA Partner Mark Dombroff will present about legal and business issues unique to the unmanned aircraft systems (“UAS”) industry.  For those of you who have no met him, Mark Dombroff leads our Firm’s Aviation Practice and our UAS industry group.

We will hold the Los Angeles Spring Seminar at Shutters Hotel in Santa Monica on May 6.  If you have not yet registered, please click this link and sign up.  We will send out a finalized Los Angeles agenda later this week.

DOD Class Deviation Further Complicates FSS Ordering

Posted in Federal Supply Schedule

On March 13, 2014, the Director of Defense Procurement and Acquisition Policy issued a Class Deviation that alters the way DOD will utilize Federal Supply Schedule contracts.  Effective immediately, prior to awarding an order against an FSS contract, DOD ordering activity contracting officers must independently make a determination that the FSS order price is fair and reasonable.  This requirement applies regardless of whether the order is for supplies, fixed-price services, or services requiring a statement of work.  One might read the class deviation to signal DOD’s lack of confidence that GSA is securing fair and reasonable pricing when negotiating and awarding schedule contracts. 

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An In-Depth Look at Why Federal Circuit’s Metcalf Constr. Decision is a Win for Contractors

Posted in Federal Circuit Decisions

Last month we profiled the Federal Circuit’s Metcalf Constr. decision about the implied duty of good faith and fair dealing.  This month Beth Ferrell, Jason Workmaster, Luke Meier and I published an in-depth article (i) analyzing the recent evolution of this implied duty and (ii) discussing the standard a contractor now must demonstrate to prove the Government’s breach of the duty.  Importantly, the Metalf Constr. decision solidifies the “reasonableness” standard for proving breach, and clarifies that the much tougher “specific targeting” standard (announced in the Federal Circuit’s 2010 Precision Pine decision) only will be used in limited circumstances.  Although some questions remain about the application of the “specific targeting” standard, Metcalf Constr. clearly is a win for contractors.

ASBCA Reminds Contractors Not To Look The Other Way When An RFP Is Missing Documents or Information

Posted in Government Contracting

When an RFP is missing an attachment or information, contractors simply should not look the other way.  This is the lesson of CAE USA, Inc., ASBCA No. 58006, where the ASBCA denied a contractor’s appeal due to its failure to inquire about missing information in an RFP before preparing and submitting its bid. 

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New DFARS Rule Reiterates: Don’t Retaliate Against Whistleblowers

Posted in Aerospace & Defense, Procurement Fraud

This blog post was co-authored by Jason Workmaster and Jenny Roberts.

The final DFARS rule implementing whistleblower protections for prime and subcontractor employees became effective on February 28, 2014.  This rule, found at subpart 203.9, sets forth policies and procedures for protecting whistleblowers, handling complaints, and imposing remedies.  The subpart applies to DOD contractors (excluding those in the intelligence community), regardless of size, at the prime and subcontract levels, in lieu of the requirements of FAR 3.903 and 3.905.  Under the rule, DOD contractors and subcontractors are prohibited from “discharging, demoting, or otherwise discriminating against” any employee in retaliation for the employee’s disclosure to certain entities of information related to: gross mismanagement, abuse of authority, or violations of law, rule or regulation concerning DOD contracts; gross waste of DOD funds; or dangers to public health or safety.  Click here for a more detailed description of the provisions and suggestions for DOD contractors.

President Obama’s 2015 Budget Increases Funding for Fraud and Compliance Enforcement

Posted in Cost & Funding, Legislative & Regulatory

This blog post was co-authored by Elizabeth Ferrell and Mary Buxton

President Obama announced his 2015 proposed budget last week.  The budget shows a renewed focus on combating fraud, waste and abuse in government contracting by increasing the number of compliance and fraud enforcers at several agencies.

The Department of Labor (“DOL”), Department of Defense (“DOD”), Department of Health and Human Services (“HHS”) and the General Services Administration (“GSA”) plan on hiring more personnel specifically to investigate fraud.  The President’s budget also increases the funding for HHS’ inspector general from $300 million to $400 million.  It appears that HHS will continue to pursue record breaking fraud recoveries, as an additional $325 million was earmarked for the Health Care Fraud Prevention and Enforcement Action Team, along with other program integrity efforts. GSA Office of Inspector General (“OIG”), which has been particularly aggressive in recent years, plans on hiring more special agents in FY2015, which will increase the OIG’s ability to investigate allegations of fraud and misconduct and achieve even higher civil and criminal recoveries than in past years.  GSA also expects audit work in the construction arena to increase significantly this year as Recovery Act projects come to completion.

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