To further assist the contractor community with the effects of the unprecedented Coronavirus Disease 2019 (COVID-19), the U.S. Department of Defense (DoD) issued on April 8, 2020 a Class Deviation authorizing contracting officers to use a new clause – DFARS 231.205-79, CARES Act Section 3610 Implementation – to address contractor reimbursement under Section 3610 of
Government Contracts & Investigations Blog
Latest updates on Developments Affecting Government Contracts & Investigations
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New Executive Orders Aim to Eliminate Unfair Surprise in Civil Enforcement Actions by Formalizing Guidance Documents
On October 9, 2019, the President issued two executive orders that require agencies to formally provide official guidance before enforcing any new jurisdiction or legal standards. In other words, agencies cannot take novel legal positions in civil enforcement actions or adjudications without first formally notifying the public. Building on the 2017 Sessions Memorandum and 2018…
Proposed Rule Would Create a Separate, More Restrictive Standard for “Adequate Price Competition” for the DoD, NASA, and the Coast Guard
On June 12, 2018, the Department of Defense (“DoD”), the General Services Administration, and NASA proposed a new rule that would limit the “adequate price competition” exception to certified cost or pricing data requirements on all DoD, NASA, and Coast Guard procurements. Currently, FAR 15.403-1 prohibits contracting officers from requiring contractors to submit certified cost…
Contractors Beware: The 2018 NDAA Ushers In New Changes Affecting IP Rights
The 2018 National Defense Authorization Act (“NDAA” or “Act”) includes changes that could make the Department of Defense (“DoD”) a more effective and knowledgeable purchaser of Intellectual Property (“IP”) and promote more flexible IP acquisition strategies. These same changes also could encourage Contracting Officers to insist on broader IP rights and delivery requirements. While it…
“Brand Memo” Prohibits US DOJ From Converting Agency Guidance Into Binding Legal Obligations In Civil Enforcement Actions
On January 25, 2018, Associate Attorney General Rachel Brand issued a memorandum (the “Brand Memo”) limiting the use of agency guidance documents in affirmative civil enforcement cases. The memorandum builds on Attorney General Jeff Sessions’ November 16, 2017 memorandum prohibiting DOJ from promulgating guidance documents that create rights or obligations that are binding on regulated…
While Protests and the Sustain Rate Decrease, the Effectiveness Rate Continues Its Upward Climb – A Brief Review of GAO’s FY 2017 Bid Protest Statistics
On November 13, U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress (B-158766, November 13, 2017), which contains the statistics for bid protests filed at GAO in FY 2017.…
Cross Your Heart and Hope to Die – New DFARS Clauses Target Counterfeit Electronic Parts
On August 2, 2016, the Department of Defense (“DOD”) rolled out new requirements for defense contractors that provide electronic parts and assemblies containing electronic parts. The new rules impose significant risks on DOD contractors. One clause mandates a specific purchasing hierarchy, with requirements to purchase from the original manufacturer or authorized suppliers thereof when available. …
DoD Proposes Cost Allowability Rule for Correcting Counterfeit Electronic Parts
The Department of Defense (“DoD”) recently proposed to make specified costs allowable that are associated with discovering and correcting counterfeit or suspect counterfeit electronic parts. DoD’s proposed rule would amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement the National Defense Authorization Act (“NDAA”) for Fiscal Year 2016.…
Seventh Circuit Rejects FCA Implied False Certification Theory
On June 8, 2015, the U.S. Court of Appeals for the Seventh Circuit rejected the doctrine of implied false certification in a False Claims Act (“FCA”) lawsuit, U.S. ex rel. Nelson v. Sanford-Brown Ltd. No. 14-2506, 2015 WL 3541422. In a welcome decision for government contractors, the Court held that the FCA is “not the…
SCOTUS: No Unlimited Suspension of the Statute of Limitations Under the False Claims Act; “First-to-File” Doctrine Does Not Bar Related Suits in Perpetuity
In an opinion released May 26, 2015, Kellogg Brown & Roots Services, Inc. v. United States ex rel. Carter, the U.S. Supreme Court unanimously held that whistleblowers cannot extend the statute of limitations for war-related civil false claims under the Wartime Suspension of Limitations Act (“WSLA”), reinstating an already generous statute of limitations period…