The FAR Council Adopts a New Rule on Reporting Counterfeit Parts and Major or Critical Nonconforming Common Items in the Supply Chain
After more than five years in the making, DoD, GSA, and NASA recently issued a final rule amending the Federal Acquisition Regulation (FAR) to require contractors and subcontractors to report to the Government-Industry Data Exchange Program (GIDEP) certain counterfeit or suspect counterfeit parts and “common items” with major or critical […]
On Halloween Day of 2019, President Trump signed Executive Order 13897, titled “Improving Federal Contractor Operations by Revoking Executive Order 13495.” (84 Fed. Reg. 59709 (Oct. 31, 2019)). This Order revoked, effective immediately, Executive Order 13495 on “Nondisplacement of Qualified Workers Under Service Contracts,” which was issued by President Obama. […]
GAO Says Contractors Must “Diligently Pursue” Agency Debriefing or Potentially Lose Right to Protest
The Government Accountability Office (GAO) recently issued a decision holding that a bidder’s failure to “diligently pursue” its request for a debriefing rendered its protest untimely. GAO’s bid protest regulations are strict about the time in which a contractor can file a protest. If the protest is alleging improprieties in […]
By Emily Yoshiwara on October 28, 2019 | Posted in
On October 1, 2019, the Department of Defense (DoD) issued a final rule (DFARS 215.101-2-70) that implemented limitations on its ability to use the Lowest Price Technically Acceptable (LPTA) method of procurement. In a LPTA procurement, a contact is awarded to the offeror with the lowest price who submitted a […]
In Meridian Engineering Co. v. U.S., 2019 WL 4594233, Case No. 11-492C (September 23, 2019), the U.S. Court of Federal Claims (“COFC”) decided a contractor was entitled to damages for cumulative delays on a construction project with the Army Corps of Engineers (“Government” or “Army”) to include costs due to […]
Default Termination Ruled Invalid Based on Contracting Officer Representative’s “Hostility” and “History of Dishonesty”
Despite acknowledging that an “objective inquiry” and not “subject beliefs” is appropriate to determine the validity of a default termination, the Court of Federal Claims ruled that the government’s default termination was invalid based in part on the Contracting Officer Representative’s (COR) “hostility” towards the contractor and “history of dishonesty” […]
To help you navigate the rough seas of doing business with the federal government in the Trump administration, Washington PTAC, Pacific Northwest Defense Coalition, AGC of Washington, and the Government Contracts team at Oles Morrison have assembled a group of nationally recognized government contracts professionals for a seminar covering topics relevant to government contractors across […]
New Buy American Act Executive Order Ups the Ante on Domestic Preferences – What Construction Contractors Should Know
As anticipated, the Trump Administration has continued to build on its emphasis for domestic preference requirements on projects that are subject to the Buy American Act – both for projects that are directly funded by the federal government, or pursuant to the Administration’s January 31, 2019 Executive Order, “Strengthening Buy American Preferences for Infrastructure Projects,” potentially also to projects that are indirectly funded by the government. The Administration’s latest efforts in this area have come in the form of a July 15, 2019 Executive Order, “Maximizing Use of American-Made, Goods, Products, and Materials.” While this most recent Executive Order on this subject contains a number of proposed changes, which will need to be implemented through regulations, it proposes two changes that may have significant ramifications for the construction industry. This alert summarizes the key considerations for construction contractors.
Cybersecurity compliance has become an increasingly trending and important area for government review, especially by the Department of Defense (DoD), placing an emphasis on defense contractors and the government alike in ensuring that sensitive government data residing on nongovernment systems are protected from third party intrusion and disclosure. Indeed, recent cases in False Claims Act litigation have demonstrated just how serious a contractor’s noncompliance with cybersecurity requirements can be. For example, in U.S. ex rel. Markus v. Aerojet Rocketdyne Holdings, Inc., the court, in denying the defendant’s motion to dismiss, allowed a non-intervened qui tam complaint to proceed, where the relator alleged that the defendant’s systemic noncompliance with contractual cybersecurity standards resulted in the submission of false claims that the relator claimed warranted the imposition of treble damages that could far exceed the value of the contracts themselves. 2019 WL 2024595 (E.D. Cal. May 8, 2019). Notably, the court held that the relator had sufficiently pled violations of the False Claims Act even though, as the defendant argued, the regulations in question had recently been issued, frequently amended, and some agency guidance could reasonably be construed as relaxing any requirements. Id.
The Supreme Court Decides that a Relator May Have More Than Six Years to File a Qui Tam False Claims Act Complaint
In Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507 (2019), the Supreme Court of the United States interpreted the statute of limitations (“SOL”) provision of the False Claims Act (“FCA”) to allow a relator’s qui tam action to proceed even though he filed more than six years after the alleged violations occurred (i.e., after the standard SOL period expired). This decision may restrict SOL defenses for FCA defendants because it confirms that, even if the Government does not intervene, a relator may have up to ten years to file a qui tam action, depending on when “the official of the United States charged with responsibility to act” (to quote the language of the statute) learned the material facts of the right of action.