When does a private party need to file a qui tam action under the False Claims Act (“FCA”)? Such a seemingly simple question has resulted in three different answers from six different courts. This past Friday, November 16, 2018, the Supreme Court announced it would resolve that circuit split — by granting a request to review the Eleventh Circuit’s decision in United States ex rel. Hunt v. Cochise Consultancy, Inc. The case will merit close attention, as the ultimate outcome could help protect government contractors from intentional and prejudicial delay in litigation.
Many government contractors are part of corporate families consisting of multiple corporate entities. One entity may be named as the official contracting party, but use the resources of affiliates, parents, or subsidiaries during performance. The distinction between those members of the corporate family may not seem important in terms of day-to-day operations — in fact, the synergy and seamlessness between the corporate entities may be a selling point. Two recent GAO decisions make clear, however, that when it comes to bidding on government work, it is important to precisely identify which corporate entity is going to do what and which corporate entity has which resources.
In BDO USA, LLP and Intermarkets Global USA, LLC, GAO’s decisions turned on a perceived misidentification of corporate entities at some point in the procurement process. In BDO, the problem occurred during bid submission. In Intermarkets, the problem occurred when the protest was filed.
The Department of Defense (“DoD”) has proposed a new rule limiting the use of “brand name or equal” contract competitions, calling on contracting officers to publicly justify their need for a brand name-type product before issuing a solicitation. The rule would implement Section 888(a) of the National Defense Authorization Act of 2017, which directed the Secretary of Defense to “ensure that competition in [DoD] contracts is not limited” by brand name references without a justification under 10 U.S.C. § 2304(f).
In three related bid protest decisions made public last week, the Government Accountability Office (“GAO”) reaffirmed the principle that agencies must meaningfully consider price when making best value tradeoff decisions. GAO sustained the protests, stressing that merely paying lip service to price while selecting a more expensive, higher-rated offeror is not sufficient — agencies must provide a rational explanation for why they have decided to pay a premium for the awardee’s technical superiority.
Pursuant to Sections 817 and 881(b) of the FY 2017 National Defense Authorization Act (“NDAA”), the Department of Defense (“DoD”) recently issued a proposed rule to amend certain sourcing restrictions found in DFARS subpart 225.70 and related clauses. Specifically the proposed rule would amend the DFARS to:
- extend the Berry Amendment’s domestic sourcing restrictions to the acquisition of certain athletic footwear for members of the Armed Forces, when the procurement is valued at or below the simplified acquisition threshold [Section 817], and
- recognize that Australia and the United Kingdom of Great Britain and Northern Ireland (the “UK”) are now members of the National Technology Industrial Base (“NTIB”), thereby permitting the United States to acquire certain items (that are subject to the sourcing restrictions in 10 U.S.C. 2534) if they are manufactured in the UK, Australia, Canada or the United States [Section 881(b)].
We provide our takeaways below. Continue Reading
The Department of Defense Office of Inspector General (“OIG”) recently announced that it was initiating an audit to determine whether agencies within DoD awarded Service-Disabled Veteran-Owned Small Business (“SDVOSB”) set-aside and sole-source contracts to eligible companies. The audit is set to begin this month, and likely will evaluate the number and value of contracts awarded to SDVOSBs under set-asides and sole-source procurements, as well as whether and how agencies confirm that awardees qualify as SDVOSBs at the time of award. The audit, which comes six years after the OIG previously determined that DoD did not have adequate controls in place to ensure the integrity of the SDVOSB set-aside program, signals that SDVOSB eligibility issues are likely to become a greater point of emphasis in future enforcement proceedings.
Although the Freedom of Information Act (FOIA) allows citizens to request agency records and thus keep a close eye on their government, proprietary information is exempt from disclosure under Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” A substantial body of case law has developed regarding what does and does not qualify as proprietary, and therefore exempt, under FOIA. For example, the total price paid under a government contract is rarely exempt, but a contractor’s line-item pricing often can be. However, there is no per se rule that line-item pricing is exempt from release under FOIA. Instead, contractors must show on a case-by-case basis that the disclosure of the line-item pricing would cause competitive harm.
On September 28, 2018, the D.C. District Court issued two noteworthy decisions holding that line-item pricing data and commission rates were exempt from release under FOIA Exemption 4. Northrop Grumman Systems Corp. v. NASA, No. 17-1902, 2018 WL 4681012 (D.D.C. Sept. 28, 2018); Hodes v. Treasury, No. 17-0219 (D.D.C. issued Sept. 28, 2018). Although these decisions do not break new ground, they are nonetheless significant as the latest examples of a court preventing the disclosure of pricing information. They suggest that courts are willing to apply a broad definition of confidential commercial or financial information where the contractor makes the necessary showing. They also reject common agency arguments for disclosing pricing information, such as the information is too old or not final. Thus, these opinions provide useful authority in defending against the public release of contractor pricing information. Continue Reading
(This article was originally published in Law360 and has been modified for this blog.)
Peter Navarro, assistant to the president for trade and manufacturing policy, recently offered in a New York Times op-ed that “[a] strong manufacturing base is critical to both economic prosperity and national defense.” The Trump Administration’s maxim that “economic security is national security” is rooted in several government initiatives, ranging from large-scale policy reforms (like renegotiating the North American Free Trade Agreement and strengthening the so-called “Buy American Laws”) to more granular contracting procedures (like the Department of Defense’s proposed changes to commercial item contracting and increased scrutiny of security across all levels of defense supply chains).
Business leaders should therefore pay close attention to the government’s long-awaited interagency assessment of the manufacturing and defense industrial base, available in unclassified form here. The report was commissioned by Executive Order 13806, which described “[s]trategic support for a vibrant domestic manufacturing sector, a vibrant defense industrial base, and resilient supply chains” as “a significant national priority.” The Department of Defense served as the lead agency coordinating the report, in partnership with the White House’s Office of Trade and Manufacturing Policy.
Throughout the 140-page report, the Interagency Task Force (the “Task Force”) identifies myriad threats, risks and gaps in the country’s manufacturing and industrial base, and concludes that “[a]ll facets of the manufacturing and defense industrial base are currently under threat, at a time when strategic competitors and revisionist powers appear to be growing in strength and capability.” To address these concerns, the Task Force lays out a methodology, diagnosis, and framework for policy recommendations and gives the government significant flexibility in crafting responses. The report recommends – and we expect the President to issue – a follow-on Executive Order directing action on those responses. That creates an opportunity for industry to participate in shaping the major implementing policies and regulations that are coming. Continue Reading
Last month, the Government Accountability Office (GAO) issued a bid protest decision regarding the application of Buy American Act (BAA) requirements to a solicitation for construction. In this decision, GAO rejected the agency’s determination that an offeror’s bid was nonresponsive because the offeror failed to provide certain required information for the evaluation of a potential BAA exception. A summary of the decision and our takeaways are below.
This post first appeared on Covington’s Global Policy Watch blog on September 7, 2018
Generating and sustaining the United States’ global economic and military superiority over more than the last half century has depended on a dominant U.S. global economic position and perpetual technological innovation. The United States has increasingly relied on a global industrial supply chain and a relatively open environment for foreign investment in early stage technology development to sustain this dominant position, but in so doing has built risk into the foundation of its competitive advantage. The U.S. Government has growing concerns that these past practices meant to extend the U.S. economic and military advantage are contributing to its erosion. As a result, the Department of Defense (DoD), other Executive agencies, and Congress are taking steps to mitigate risks across the defense industrial and innovation supply chains that provide hardware, software, and services to the U.S. Government.
The U.S. Government has been focused on supply chain issues for more than a decade. As the threats have increased, so has the Government’s scrutiny of its contractors and their suppliers. Underlying these efforts is the concern that a foreign government will be able to expropriate valuable technologies, engage in espionage with regard to sensitive government information, and/or exploit vulnerabilities in products or services. Many senior policymakers across the Executive Agencies and the Congress believe these threats are increasing, and they are focused on taking further steps to make security a business differentiator for those seeking to compete for U.S. Government contracts. Contractors need to understand these security obligations and implement compliance processes, or they may find themselves at competitive disadvantage or even precluded from competition.
Companies seeking to sustain and grow business with the U.S. federal government must ask: how well do you actually know your supply chain—from the materials you acquire to the software you include in your products or services? If you have not answered this question recently, you should consider adding it to your “to do” list. Not only does the United States Government want to know, the Government is seeking to integrate national security considerations into the acquisition process and expect contractors to be the first line of defense.
A cross-functional team from Covington’s Government Contracts, Public Policy, and National Security practices have studied the major initiatives the Government has launched to protect its supply chain. In a recent article (available here), we analyze new provisions in the recently enacted Fiscal Year 2019 John S. McCain National Defense Authorization Act, including restrictions on the procurement and use of certain telecommunications equipment, software, and services from manufacturers connected to the Chinese government, and stringent disclosure obligations related to foreign review of software code. Finally, we discuss how the Deliver Uncompromised initiative is likely to influence DoD going forward, and what impact this could have on defense contractors and suppliers.
Contractors and the U.S. Government share the strategic objectives of protecting the United States’ competitive edge and sustaining overmatch on the battlefield. Our recent article highlights some of the friction points in pursuing those goals. With planning, forethought, and experienced counsel, contractors can minimize disruption and continue to accomplish their business goals while furthering U.S. national security interests.