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Silicon Valley Institute on Government and Technology

June 9, 2016
07:30 AM – 01:30 PM PDT
Menlo Park, CA
United States

Following our successful launch of the Silicon Valley Institute on Government and Technology, we invite you to attend the next installment of our conference series examining the federal government’s acquisition of technology and the issues tech companies must understand in doing business with the government.

Our complimentary, half-day program will cover the latest developments in the Valley from the recently formed Department of Homeland Security acquisition office, an update on the Department of Defense’s Defense Innovation Unit Experimental (DIUx), and key issues to consider in the government’s funding and acquisition of technologies for migration of government data to the cloud as well as related developments in encryption and cyber security.

This event is co-sponsored by AFCEA International

RSVP/Questions

Please contact Sofia Abraham Mendoza at +1 202 496 7316.

Silicon Valley Institute on Government and Technology

2016 Denver Government Contracts Briefing

White House

May 10, 2016
08:00 AM – 05:00 PM MDT
Denver, CO
United States

Please join us for the 2016 Denver Government Contracts Briefing, which offers an exciting and insightful program. The briefing will feature a panel discussion regarding key issues in the sale and acquisition of government contractors. We will also highlight several hot topic sessions including independent research and development; navigating recent cybersecurity developments; supply chain; GSA commercial items; export controls; 2015-2016 legislative and regulatory developments; and litigation spotlight: protecting your trade secrets and data rights and practical tips for hiring employees from competitors. As we do every year, we will also feature updates on contract performance, procurement, fraud and compliance, and cost and pricing issues.

In addition to our program, we will present a special keynote session in which our senior advisors, former Governor Howard Dean and former Speaker of the House Newt Gingrich will join us and share their observations on the potential policy implications of the 2016 presidential election for government contractors.

The program is complimentary to our clients. CLE credit is pending. For more information and to receive an invitation, please contact Sofia Abraham Mendoza.

2016 Denver Government Contracts Briefing

Congratulations to the participants of the Dentons “Gilbert A. Cuneo” Government Contracts Moot Court Competition

Dentons’ Government Contracts practice congratulates the winners and participants of the 16th annual Dentons “Gilbert A. Cuneo” Government Contracts Moot Court Competition. On April 7, our Washington, DC office hosted the reception and awards ceremony after the competition’s final round. Named after one of our practice founders, and a pioneer in the field of government contracts as a legal practice area, this competition has become a hallmark of George Washington University Law School and is something of which we are very proud. Over the years, a number of Dentons lawyers have been participants in and winners of the annual competition. Jessica Abrahams, Dentons’ Government Contracts practice leader, together with Dana Pashkoff, one of the editors of this blog and GW Law Government Contracting Industry Advisory Board member, welcomed GW Law School students, faculty, alumni, sitting judges and government contracts practitioners. Jessica Abrahams and Katherine Veeder (a former moot court winner) delivered remarks on the history of the moot court competition and our market-leading Government Contracts practice.

2016 moot court judges and finalists

cropped winners 2016 moot court winners2016 moot court - Jessica Dana Pashkoff and Steve Schooner 2016 moot court

Congratulations to the participants of the Dentons “Gilbert A. Cuneo” Government Contracts Moot Court Competition

Speaking up about DOD’s proposed Independent Research and Development costs rule

A February 8, 2016, Department of Defense (DOD) advance notice of proposed rulemaking sought input to help address agency concerns regarding substantial future Independent Research and Development (IR&D) when such effort is undertaken as a means of reducing evaluated bid prices in competitive source selections. The proposed rule, if made final, would require the government to add costs (for proposal evaluation purposes) to any contractor offers that rely on IR&D efforts. In a recent client alert, Dentons encouraged contractors to participate in the comment process on the proposed rulemaking.

Dentons partners Thomas A. Lemmer and Steven M. Masiello submitted comments on the proposed rule. Specifically, they describe the relevant decisional authority establishing the appropriate methodology for distinguishing between direct costs of contract effort versus indirect costs of IR&D effort. Based upon this relevant authority, DOD’s concerns underlying the proposed rulemaking initiative to attribute IR&D project costs to the proposed price for evaluation purposes are misplaced.

Indeed, contrary to DOD’s concerns, relevant decisional authority confirms that IR&D efforts properly permit contractors willing to undertake, at their own risk, IR&D projects, to gain a relative price and technical advantage. Moreover, DOD should not discourage innovation by penalizing contractors for conducting IR&D projects resulting in innovation relevant to a competitive government procurement. Finally, IR&D costs are not contract costs, and treating them as such for evaluation purposes during the competitive procurement process misconstrues their nature and may skew award decisions.

You can read Dentons’ comments in full here.

Additionally, Dentons lawyers advised the American Bar Association Section of Public Contract Law on its comments on the proposed rule, which can be found here.

Speaking up about DOD’s proposed Independent Research and Development costs rule

Fourth Circuit refines Rockwell public disclosure bar analysis

In US ex rel. Beauchamp v. ACADEMI Training Center, the US Court of Appeals for the Fourth Circuit recently vacated dismissal of a False Claims Act (FCA) qui tam suit on the ground that the trial court improperly applied the Supreme Court’s holding in Rockwell International Corp. v. United States, 549 US 457 (2007). Rockwell held that in qui tam suits where relators allege new claims of fraud in amended complaints, courts should look to the date of the amended complaint to determine the applicability of the public disclosure bar under 31 USC § 3730(e)(4).

This holding is occasionally referred to as the last-pleading rule, because the Rockwell relator’s last amended complaint contained the first instance of an alleged fraud that was being challenged under the public disclosure bar. The Fourth Circuit found in Beauchamp that the trial court’s dismissal misconstrued the Supreme Court’s reasoning and led to an erroneous mechanical application of the Rockwell holding.

More specifically, the Fourth Circuit held that the date of the first pleading that alleges an FCA fraud with particularity (i.e., not necessarily the last amended pleading in the case) is determinative for purposes of a public disclosure bar analysis. The Fourth Circuit’s decision aligns with some other courts’ interpretation of Rockwell in cases involving public disclosure bar timing questions (see US ex rel Jamison v. McKesson Corp., 649 F. 3d 322 (5th Cir. 2011)). In an overall FCA context, this ruling represents a narrowing of options for FCA defendants seeking pretrial dismissal, at least in the Fourth Circuit.

In Rockwell, the relator filed an initial qui tam suit alleging a theory of fraud based on his direct and independent knowledge of the fraud. During discovery, the relator identified a second, unrelated theory of fraud that he did not have knowledge of previously, and included that new theory in subsequent filings. At the suggestion of the trial court, the relator and the government filed a joint amended complaint that ultimately did not include the first theory of fraud.

The defendant argued for dismissal on the ground that the second theory of fraud was based entirely on a qualifying public disclosure under 31 USC § 3730(e)(4), and that the relator had no knowledge of that theory until the public disclosure. Given those facts, the Supreme Court held that it was appropriate to use the complaint as amended to determine whether the second theory of fraud was prohibited by the public disclosure bar.

The Fourth Circuit found the facts in Beauchamp distinguishable from Rockwell, and held that trial court’s rigid application of the Rockwell holding was inconsistent with the Supreme Court’s rationale. The Beauchamp relators’ initial sealed complaint, filed in April 2011, alleged that the defendant, ACADEMI Training Center, submitted false reports and bills to the US State Department. Shortly after the initial complaint, the Beauchamp relators filed their first amended complaint, which included a new allegation that ACADEMI had failed to satisfy its contractual obligations to adequately qualify its employees on two firearms as required by the contract.

While the first amended complaint was pending, an unrelated wrongful termination suit was filed by another employee against ACADEMI, alleging specific facts relating to the failed weapons qualifications of ACADEMI employees. In July 2013, Wired published an article online about the alleged fraudulent weapons qualification scheme. Armed with the additional facts disclosed by this article, the Beauchamp relators further amended their complaint (second amended complaint), which became the operative pleading.

ACADEMI moved to dismiss the qui tam suit on a number of grounds, including the argument that the Wired article preceded the second amended complaint triggering the public disclosure bar. ACADEMI argued that the article qualified as a public disclosure under the FCA,  and that the relators’ second amended complaint was the proper pleading for the trial court’s analysis under the Rockwell last-pleading rule. The trial court agreed and dismissed the case.

In vacating the dismissal, the Fourth Circuit found that the Beauchamp trial court erred in applying the last-pleading rule without also conducting a claim-by-claim analysis of the alleged theories of fraud to determine if any predated the Wired article. Specifically, the Fourth Circuit pointed out that the weapons-qualification-related theory of fraud appeared in the relators’ first amended complaint, which predated the Wired article by about a year. As such, the Fourth Circuit found that the public disclosure bar is inapplicable.

Fourth Circuit refines Rockwell public disclosure bar analysis

Cybersecurity and your supply chain: What you don’t know may hurt you

Recently revised cybersecurity regulations affecting US defense contractors and their subcontractors seek to address gaps in government contractor supply chains and expand the breadth of regulations in this area. In the February issue of Contract Management magazine, Dentons Partners Phillip Seckman and Erin Sheppard and Counsel Michael McGuinn provide guidance to contractors seeking to enhance subcontractor compliance under these regulations. In the attached article, entitled “Cybersecurity and your supply chain: What you don’t know may hurt you,” the authors provide a three-step approach to ensuring compliance with the updated Defense Federal Acquisition Regulation Supplement (DFARS) covered defense information regulations within a contractor’s supply chain. Please feel free to contact the authors with questions.

Cybersecurity and your supply chain: What you don’t know may hurt you

DHS’ Silicon Valley office issues first Innovation OTS Award to security startup

As part of its burgeoning push to purchase emerging technology from Silicon Valley startups, the Department of Homeland Security (DHS) awarded $200,000 to a Santa Clara-based company called Pulzze Systems, Inc. for Internet of Things (IoT) security systems development. The award took less than two weeks and is the first of its kind coming out of the Silicon Valley DHS office. DHS aims to develop a foothold in Silicon Valley that will allow it to “cultivate a pipeline for non-traditional partners, folks who have typically never done business with the government, to develop solutions for our toughest homeland security challenges.” See https://www.dhs.gov/science-and-technology/blog/2015/10/14/silicon-valley-office. The office wants to “bridge the gap between the department and the creative thinkers in Silicon Valley,” according to a statement by Reginald Brothers, DHS Undersecretary for Science and Technology. This initial award and its procedural efficiency “proves DHS can keep pace with the innovation community and is moving in the right direction to become a viable partner,” Brothers added.

Pulzze responded to the first call under the agency’s Innovation Other Transaction Solicitation (dedicated to protection technology for IoT security) and received the award as part of DHS’ deliberate effort to enhance and improve the government’s access to cutting-edge private sector technology and tech talent. DHS has developed a special program designed to utilize novel procurement authorities in helping startups do business with the federal government by implementing faster and more streamlined methods without all the traditional requirements of procurement contracts. The award process was remarkably rapid in this case. DHS issued the solicitation in December with Pulzze delivering its pitch on Feb. 1 and earning the award on Feb. 12, thereby “demonstrating [DHS’] ability to adapt to new ways of doing business,” according to the managing director of the Silicon Valley office for DHS’ Science & Technology Directorate. The Pulzze award is one of a number of DHS programs targeting early-stage companies for support where a startup otherwise could not afford to utilize traditional government contracting methods.

DHS’ Silicon Valley office issues first Innovation OTS Award to security startup

2016 Business Systems Webinar Series

Dentons government contracts lawyers and the Public Contracting Institute (PCI) will present this business systems series addressing the expanding requirements of the business systems rules. The Defense Federal Acquisition Regulation Supplement (DFARS) Business Systems Rule outlines requirements for contractor compliance

This series, valuable to both Department of Defense (DOD) and Department of Energy (DOE) contractors alike, will provide important guidance for any contractor seeking to improve its internal business system compliance and prepare for system self-assessments, and will help contractors prepare for and respond to government system reviews. This series will address the six covered business systems (including the systems covered by the DOE rule), and will feature guest speakers discussing practical insights and lessons learned from business system reviews.

Fourth Tuesday of the month

12:00 p.m. to 1:15 p.m. ET

January 26 – Business system administration and recent developments

February 23 – Accounting systems

March 22 – Estimating systems

April 26 – Purchasing systems (including counterfeit parts)

May 24 – Property/Earned value management system (EVMS)/Materials management and accounting system (MMAS)

For more information, or if you would like to attend a course (complimentary to Dentons’ clients), please reach out to Sofia Abraham Mendoza at sofia.mendoza@dentons.com. All webinars offer CLE credit. They are recorded and available to watch online for one year after the live date.

2016 Business Systems Webinar Series

2016 Financial Forum Series

Join Dentons government contracts lawyers for a Public Contracting Institute (PCI) webinar series involving the most current industry analysis in government contract cost accounting from a team of leaders in the field with unparalleled experience. For both contracting officials and private practitioners, these exclusive webinars offer the latest developments, hot topics and the unique opportunity to “ask the authorities.”

Second Tuesday of the month

12:00 p.m. to 1:00 p.m. ET

January 12 – Pricing requests for equitable adjustment and pursuing claims

February 9 – Subcontractor, travel and legal cost reasonableness

March 8 – Preventing, investigating and reporting accounting issues: The mandatory disclosure rule

April 12 – Incurred cost submissions and Defense Contract Audit Agency (DCAA) audits: Strategies, trends and areas of focus

May 10 – Compensation cost allowability: Select compensation costs

June 14 – Principles of fiscal law and government contracts-related funding issues

September 13 – Application of cost accounting standards (CAS) and modified CAS coverage: CAS 401, 402, 405 and 406

October 11– Full-CAS coverage: Disclosure statements and allocation of direct and indirect, home office, general and administrative (G&A) and selected costs

November 8 – Developments in cost and pricing issues: A year in review

For more information, or if you would like to attend a course (complimentary to Dentons’ clients), please reach out to Sofia Abraham Mendoza at sofia.mendoza@dentons.com. All webinars offer CLE credit. They are recorded and available to watch online for one year after the live date.

2016 Financial Forum Series

2015–2016 Cybersecurity Compliance and New Developments Series

Dentons government contracts lawyers and the Public Contracting Institute (PCI) presents this  new webinar series addressing cybersecurity requirements for federal government contractors. This six-part series, useful to both large and small contractors alike and at both the prime and subcontract level, provides important guidance for contractors who are seeking to ensure compliance with the government’s rapidly expanding cybersecurity requirements. Contractors learn about the statutory and regulatory requirements applicable to contractors, including key agency-specific regulations; cyber requirements applicable to owners and operators of critical infrastructure, including the defense base; best practices for cyber breach investigation and response; and recent and future cyber developments, including the National Archives and Records Administration’s (NARA) efforts to establish a government-wide system for identification and protection of controlled unclassified information. The series is an invaluable resource for contractors who want to ensure compliance with existing cyber obligations while best positioning themselves competitively for future developments in the government contracts industry.

This series is taught by lawyers from our government contracts practice in tandem with lawyers from our global privacy and security practice. A schedule of the sessions is below.

First Tuesday of the month

1:00 p.m. to 2:30 p.m. ET

November 3, 2015 – Overview of the cyber legal and regulatory maze

December 1, 2015 – Critical infrastructure cybersecurity, Executive Order 13636

January 5, 2016 – The Department of Defense (DOD) network penetration clause

February 2, 2016 – Breach investigation and response

March 1, 2016 – The NARA rule/SP 800-171

April 5, 2016 – Cybersecurity outlook: Predictions on cyber policies in federal procurement

For more information, or if you would like to attend a course(complimentary to Dentons’ clients), please reach out to Sofia Abraham Mendoza at sofia.mendoza@dentons.com. All webinars offer CLE credit. They are recorded and available to watch online for one year after the live date.

2015–2016 Cybersecurity Compliance and New Developments Series