Supreme Court Extends Statute of Limitations for Relators in FCA Cases, in Limited Circumstances

By Michael Wagner, Peter B. Hutt II and Andrew Guy on May 30, 2019 Posted in False Claims Act

As previously discussed on this blog, the Supreme Court announced last year that it would resolve a circuit split over when a relator needed to file a qui tam action under the False Claims Act (“FCA”). Earlier this month, the Court decided in Cochise Consultancy Inc. v. United States ex rel. Hunt, that relators can — in limited circumstances — take advantage of the FCA’s 3-year “alternative” statute of limitations, which means they may file their complaints up to four years after the default 6-year period has expired.

Now that the dust has settled, it is worth stepping back to take stock of the ruling’s practical effect. We believe that Cochise will have limited impact on most qui tam actions, although it leaves some important questions open. For FCA aficionados, the ruling by Justice Thomas also foreshadows a plain-reading, textual approach to future questions that may arise. Continue Reading

Time Stops for No One: COFC Reminds Indemnified Contractors to Mind the CDA Statute of Limitations

By Alex Sarria and Bryan Byrd on May 30, 2019 Posted in Claims and Contract Disputes, Contractor Tort Liability & Immunity

The Contract Disputes Act (“CDA”) is probably not the first law that comes to mind when a government contractor is named as a defendant in a personal injury or wrongful death suit. But a recent decision from the U.S. Court of Federal Claims illustrates why the CDA ─ and its six-year statute of limitations ─ should be top of mind for any contractor that is sued in tort and wants the government to take over its defense or to reimburse its uninsured legal fees or settlement/judgment costs. The Court’s decision, which is the latest opinion in a long-running dispute, is an important reminder for contractors that are indemnified by the government for liabilities to third persons, including under clauses such as FAR 52.228-7, Insurance ─ Liability to Third Persons (MAR. 1996) and FAR 52.250-1, Indemnification under Public Law 85-804 (APR. 1984).

Congress Braces for a Fight Over Executive Authority Under the Arms Export Control Act

By Nooree Lee and Scott A. Freling on May 24, 2019 Posted in FMS and DCS, Procurement Policy

On May 23, 2019, multiple news outlets reported that the White House was considering an emergency declaration to permit arms shipments to Saudi Arabia without Congressional approval. These reports were met with sharp criticism by multiple legislators. These recent developments shine a spotlight on the contours of the Congressional notice and approval mechanisms set forth in the Arms Export Control Act (AECA).

AECA (22 U.S.C. § 2751 et seq.) is the authorizing statute for the Foreign Military Sales (FMS) program. AECA and the implementing guidance from the Defense Security Cooperation Agency (DSCA) set forth the procedures for the development of a transaction under the FMS program, referred to as an FMS case.

Once an FMS case has been negotiated between the U.S. Government and the foreign government purchaser, the White House is required submit a formal notification to the Speaker of the House of Representatives, the House Committee on Foreign Affairs, and the Senate Committee on Foreign Relations (although this requirement is subject to country- and defense article-specific dollar value thresholds). Congress then has 30 days (or 15 days for certain proposed sales to a NATO county, Australia, Japan, South Korea, Israel, or New Zealand) to enact a joint resolution opposing the sale. Unless a joint resolution is passed within the time period, Congress is considered to have consented to the sale.

Proposed Rule Offers Foreign Military Sales as a Potential Pathway to Commerciality

By Nooree Lee and Scott A. Freling on May 22, 2019 Posted in FMS and DCS, NDAA, Procurement Policy

Earlier this month, the FAR Council issued a proposed rule to expand the definition of “commercial item” under the Federal Acquisition Regulation (FAR) to include certain items sold in substantial quantities to foreign governments. This new rule implements section 847 of the National Defense Authorization Act (NDAA) for FY 2018 (Pub. L. 115-91), and has the potential to extend commercial item status to defense articles that have been sold to foreign militaries, including sales under the Foreign Military Financing program.

Ensuring the commercial item status of products and services has long been a key point of federal contracting compliance for many businesses, as commercial item contracts typically avoid many of the more burdensome provisions imposed by the FAR. While the term “commercial item” is often generalized to refer to items offered for sale to the general public for non-governmental purposes, the definition of “commercial item” under FAR 2.101 includes certain items used for governmental purposes and sold in substantial quantities to multiple state and local governments. See FAR 2.101. This provision permitted products like protective equipment used by police and fire departments to be deemed commercial items.

ASBCA Confirms Contractors May Challenge Unfavorable CPARS Ratings

By Alex Sarria and Kevin Barnett on May 21, 2019 Posted in Claims and Contract Disputes

While you might not be able to fight City Hall, you can fight your CPARS rating. In a short opinion published last week, the ASBCA confirmed it has jurisdiction to annul an inaccurate and unfair government evaluation of a contractor’s performance. Cameron Bell Corporation d/b/a Government Solutions Group, ASBCA No. 61856 (May 1, 2019). Though the ASBCA cannot require the government to issue a specific rating, it can remand the matter to the contracting officer with instructions to redo the evaluation ─ a perhaps imperfect, yet still potent form of relief available to contractors who believe the government has improperly rated their contract performance. Continue Reading

Flying in Friendly Skies: The Federal Aviation Administration’s Unique Bid Protest Forum

By Jay Carey, Kayleigh Scalzo and Carl Wiersum on May 15, 2019 Posted in Bid Protests

Federal contractors usually think of two bid protest forums: the Government Accountability Office and the Court of Federal Claims. But there is another protest forum that often flies under the radar: the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition — aka the ODRA.

The ODRA has exclusive jurisdiction over bid protests of FAA procurements. ODRA protests are reviewed under the Administrative Procedure Act, adjudicated by one of the ODRA’s Administrative Judges, and subject to direct appeal to a federal circuit court. While many of the fundamental principles of bid protest practice at GAO and the Court of Federal Claims apply equally at the ODRA, there are several unique features. Continue Reading

Federal Online Shopping Platform Coming Soon — GSA to Issue Prototype RFP Within the Year

By Michael Wagner and Evan R. Sherwood on May 13, 2019 Posted in Commercial Items, COTS, Defense Industry, Government Contracts Regulatory Compliance, GSA Schedule, Procurement Reform

In the latest step towards delivering on the long-promised “Procurement Through Commercial e-Commerce Portals” program, the General Services Administration has announced plans to build a proof-of-concept for federal online shopping, aiming to issue an RFP by the end of the year for web-based acquisition platforms.

New DOJ Cooperation Credit Guidelines a Welcome Sign, but Key Questions Remain Unresolved

By Peter B. Hutt II, Michael Wagner, Michael Maya and Brooke Stanley on May 9, 2019 Posted in False Claims Act

This week, the Department of Justice (“DOJ”) released formal guidelines (“the Guidelines”) for awarding credit to entities that cooperate in False Claims Act (“FCA”) investigations. Frequently hinted at by DOJ officials in recent speeches and public statements, the Guidelines have been eagerly anticipated by practitioners in the FCA space.

Despite the build-up, the Guidelines are hardly revolutionary in many respects, as they largely memorialize existing discretionary practices for awarding cooperation credit that are well familiar to practitioners in the area. Nonetheless, the codification of the Guidelines in the Justice Manual may prove to be a significant development, especially if this more formal policy statement results in greater transparency and consistency in settlement discussions with DOJ. Unfortunately, the Guidelines leave unresolved certain key questions, and whether DOJ ultimately achieves its objective of promoting increased disclosure and cooperation will depend substantially on the manner in which the Guidelines are implemented. Continue Reading

New York Executive Order and Legislation Signal Increased Debarment Activity

By Michael Wagner and Pierre Hines on May 3, 2019 Posted in Claims and Contract Disputes, Construction Contracting, Procurement Reform, State and Local Procurements, Suspension and Debarment

Two recent developments in Albany suggest that New York is poised to kick its debarment activity into a higher gear. First, Governor Andrew Cuomo issued an executive order pointedly reminding state entities of their authority to debar non-responsible contractors and directing all state entities to ensure that contractors remain “responsible” throughout the term of their contracts. Second, the New York legislature recently enacted a bill to reform the Metropolitan Transportation Authority (MTA), which included far-reaching provisions that allow MTA to debar any contractor that exceeds 10% of the contract cost or time for a construction project. Together, these developments indicate a move towards greater scrutiny of contractor performance, and they highlight the significant consequences of not meeting compliance and performance obligations.

Rights in Government-Funded IP: Changes May be on the Horizon

By Jennifer Plitsch, Alexander Hastings, Bryan Byrd and Carl Wiersum on May 3, 2019 Posted in Intellectual Property

Many entities engaged in federally funded R&D have closely monitored the efforts of the National Institute of Standards and Technology (“NIST”) over the last year as it has studied strategies for maximizing U.S. innovation through government-funded research. Last week, NIST published its findings in NIST Special Publication 1234, Return on Investment Initiative for Unleashing American Innovation Green Paper (“Green Paper”).

Benefiting from information received from an initial Request for Information, public meetings, a summit, consultations with interagency working groups, stakeholder engagement sessions, and comments received on a draft version of the Green Paper, NIST’s findings are designed to inform future policy decisions throughout the Federal Government. These future decisions could have tremendous impact: the Federal Government invested approximately $150 billion in R&D in 2017 alone, representing about one-third of all U.S. R&D spending.

After discussing the Green Paper at a high level, we highlight below a few of NIST’s findings which may be of particular interest to many government contractors. Continue Reading