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Government Contracts Advisor

Industry Insights & Analysis

Federal Circuit Decision Reins In COFC’s Ability To Decide Task Order-Related Protests

Posted in Bid Protests

This post was co-authored by Jason A. Carey, Luke W. Meier and Shaun C. Kennedy.  

Last week, the Federal Circuit issued an opinion that may curtail the Court of Federal Claims’ jurisdiction to decide task order-related bid protests under the Federal Acquisition Streamlining Act of 1994 (“FASA”).  FASA is generally regarded as permitting only two types of task order bid protests: (1) protests alleging that a task order award is “out-of-scope;” and (2) protests of task order awards exceeding $10 million at the Government Accountability Office.  See 41 U.S.C. § 4106(f).  Despite this limitation, several Court of Federal Claims decisions in recent years have asserted jurisdiction over bid protests challenging agency actions taken before or after the issuance of a task order.  The decision in SRA Int’l v. United States, No. 2014-5050, 2014 WL 4494775 (Fed. Cir. Sept. 15, 2014), however, signals the Federal Circuit’s skepticism towards the view that FASA does not bar such protests, finding instead that the timing of an agency action does not, in itself, affect whether FASA’s restriction applies, and that the statute “effectively eliminates all judicial review for protests made in connection with a procurement designated as a task order.”  Id. at *4.

For more legal analysis and discussion of the practical implications for contractors stemming from this decision, we recommend you read the Client Advisory published yesterday on this subject by Jay Carey, Luke Meier and Shaun Kennedy.

Recent Developments in the Public Disclosure and First-To-File Bars Under the False Claims Act

Posted in False Claims Act

This post was authored by Justin M. Ganderson.

Yesterday, my colleague Sandeep Nandivada published a feature comment in The Government Contractor entitled, “The Public Disclosure And First-To-File Bars: Are They Still Jurisdictional?” [found here].  In his article, Sandeep analyzes the “jurisdictional nature of the public disclosure and first-to-file bars” under the 2010 amendments to the civil False Claims Act (31 USCA § 3729, et seq.) through an in-depth discussion of recent Circuit Court of Appeals and District Court decisions.  He concludes that “long-standing assumptions” about the jurisdictional nature of these bars are now “in flux” and “may no longer apply.”  I encourage you to read this important  article on a topic that may one day reach the Supreme Court.

House Transportation and Infrastructure Panel Acknowledges Benefits of Public Private Partnerships, Makes Recommendations

Posted in Public Private Partnerships

This post was co-authored by Stephen M. Sorett and Justin M. Ganderson.

Earlier this week the House Transportation and Infrastructure Committee’s Panel on Public-Private Partnerships (P3s) issued a report stemming from its review of the “use of public-private partnerships in the United States and internationally to identify: 1) the role such partnerships play in the development and delivery of transportation and infrastructure projects; 2) whether public-private partnerships enhance the delivery and management of infrastructure projects beyond the capabilities of government agencies or the private sector acting independently; and 3) how to balance the needs of the public and private sectors when identifying, developing, and implementing public-private partnership projects.”  The panel found that P3s “can enhance the delivery and management of transportation and infrastructure projects beyond the capabilities of government agencies or the private sector acting independently” and acknowledged that the “participation of the private sector in financing a project can bring discipline and efficiency to project delivery, which is too often lacking in the traditional public procurement process.”  Continue Reading

DoD Publishes Proposed Rule Overhauling its FOIA Regulations

Posted in FOIA

This post was co-authored by Joanne L. Zimolzak, Alejandro L. Sarria and Kevin T. Barnett.

On September 3, 2014, the Department of Defense (“DoD”) published a proposed rule overhauling its Freedom of Information Act (“FOIA”) regulations.  See DoD Freedom of Information Act (FOIA) Program, 79 Fed. Reg. 52,2500 (proposed Sept. 3, 2014) (to be codified at 32 C.F.R. Part 286).  The proposed rule would substantially revise DoD’s FOIA regulations by codifying many long-standing practices.  Comments on the proposed rule are due by November 3, 2014. Continue Reading

Common Sense Prevails: D.C. Circuit Holds that A Reasonable Reliance on Suppliers’ Trade Agreements Act Certification Protects Contractors from False Claims Act Liability

Posted in False Claims Act

This post was co-authored by John G. Horan, Jason N. Workmaster and Katherine M. John.

On August 29, 2014, the D.C. Circuit issued its decision in United States ex rel. Folliard v. Gov’t Acquisitions, Inc., No. 13-7049 (D.C. Cir. Apr. 4, 2014), a False Claims Act (FCA) case in which the district court granted summary judgment for the contractor.  In a welcome decision for FCA defendants, the D.C. Circuit affirmed.  Most significantly, the Court found that the contractor’s reliance on it supplier’s TAA certification was reasonable.  More broadly, the case holds that contractors that reasonably rely on supplier’s TAA certifications are protected from liability under the FCA.  Partner Jason N. Workmaster and former partner Tim Halloran, with assistance from partner Dan Jarcho, filed an amicus curiae brief on behalf of the Coalition for Government Procurement.  Continue Reading

NIST Publishes RFI Seeking Industry Input on Cybersecurity Framework

Posted in Cybersecurity

This post was co-authored by Elizabeth A. Ferrell, Erin B. Sheppard and Katherine L. Veeder.

The National Institute of Standards and Technology (“NIST”) has published a Request for Information (“RFI”) seeking input from industry on how organizations are utilizing NIST’s Framework for Improving Critical Infrastructure Cybersecurity (the “Framework”) [found here].  As we reported on August 22, 2014, [found here] interested parties have forty-five (45) days to submit comments, which are due by October 10, 2014.  Interested parties should plan to address the twenty two questions posed in the RFI, each of which is aimed at providing NIST with key insights as to what aspects of the Framework are working well and what dimensions may not be working as well.

DOL Employee Classification FAQ

Posted in Government Contracting, Labor & Employment

This post was co-authored by Phillip Seckman, Ann Murray and Amy Siadak.

The Office of Federal Contract Compliance Programs (“OFCCP”) in the U.S. Department of Labor (“DOL”) recently posted answers to Frequently Asked Questions (“FAQs”) regarding how federal contractors should determine whether a worker is an employee versus an independent contractor.  Continue Reading

Government and Commercial Contract Compliance Briefing

Posted in Compliance & Investigations, Cybersecurity, Events, Government Contracting

This post was authored by Mike Rizzo.

Join us on September 30 at the Hyatt Regency Santa Clara for a Government and Commercial Contract Compliance Briefing, co-hosted with Navigant, a global expert services firm. This will be a two hour long discussion surrounding investigations and attorney-client privilege concerns, mandatory disclosure requirements, data rights, cybersecurity and many more topics relevant to the Southern California region. The event will start around 8 am and breakfast will be served. Don’t miss the chance to interact with key personnel from McKenna Long and Navigant as they come together on stage for the first time. CLE credit is pending approval. Continue Reading

HHS Audit Reports Signal Increasing Cybersecurity Audits for Contractors

Posted in Cybersecurity, Government Contracting, Healthcare, Public Policy

This post was co-authored by Elizabeth Ferrell, Dennis Smith*, Cindy Gillespie* and Erin Sheppard.

The Office of the Inspector General (“OIG”) for the U.S. Department of Health and Human Services (“HHS”) recently released two audit reports assessing weaknesses in the information security systems of a contractor-operated Medicaid Management Information System (MMIS) and contractors administering federal Medicare programs.  The reports reflect a growing trend toward proactive audits of such cybersecurity controls by state and federal agencies. Continue Reading

New Executive Order Targets Federal Contractors

Posted in Government Contracting, Labor & Employment

This post was authored by Cary Burke.

President Obama has issued yet another executive order that will impose additional labor compliance requirements on companies that choose to do business with the federal government.  Entitled “Fair Pay and Safe Workplaces,” the new Order requires contractors and subcontractors to disclose their own labor law violations and requires federal agencies to exclude from federal contracting those companies with a history of poor labor law compliance.   This new Order revives the Administration’s long intended push for a so-called “High Road Contracting” system, wherein contractors must guarantee strict and ongoing adherence to a broad spectrum of labor laws or face potential termination of contract — or even debarment. Continue Reading