Herbert Fenster

Herbert Fenster

Herbert Fenster focuses his practice on litigation, particularly, against the United States and on the subjects of procurement, environmental, administrative and tort law. He has extensive experience in the negotiation, interpretation, and litigation of contracts for major weapons systems, as well as the procurement of research and development.

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Federal Circuit Further Clarifies Maropakis and CDA Interest Rule in Significant “Contractor-on-the-Battlefield” Decision

Earlier this week, the Federal Circuit unanimously affirmed a 2017 ruling by the Armed Services Board of Contract Appeals (“ASBCA”) that held the United States Government breached its contractual obligation to provide physical security to KBR and its subcontractors during the height of the Iraq War.  The decision awards KBR $44 million, plus interest, in … Continue Reading

Debate Over Qui Tam Constitutionality Resumes After 20-Year Hiatus

The motivating force behind the False Claims Act, 31 U.S.C. §§ 3729-3733 (“FCA”) is its provision for qui tam enforcement, which authorizes private parties (aka relators) to initiate FCA cases on behalf of the United States. Id. § 3730(b)(1). Immediately after re-invigoration of the FCA in 1986, scholars and litigants questioned the constitutional validity of … Continue Reading

DoD Implements Streamlining Awards for Innovative Technology Projects

On January 9, 2018, Department of Defense (“DoD”) issued Class Deviation 2018-O0009, designed to reduce barriers to entry for innovative entities through streamlining the awards process for research and development contracts. This Class Deviation allows for the use of simplified acquisition procedures and excuses certain procurement obligations when DoD awards contracts and subcontracts valued at … Continue Reading

Government Contracts and Chevron Deference: Justice Gorsuch Weighs In

Under Chevron U.S.A. v. NRDC and its progeny, courts show great deference to administrative agencies’ interpretations of statutes and regulations.  However, it does not necessarily follow that courts will provide that same deference to agencies’ interpretations of government contracts.  Last week, in a statement respecting the denial of certiorari in Scenic America, Inc. v. Dept. … Continue Reading

Defense Industry Calls on the Pentagon to Withdraw Proposed Changes to IR&D Rules

In public comments submitted earlier this month, the defense industry and the public contract bar called upon the Department of Defense (DoD) to withdraw or significantly revise a proposed rule altering how independent research and development (IR&D) costs are treated.  These public comments reflect the defense industry’s growing concern that DoD is moving to constrain the industry’s … Continue Reading

Déjà Vu: Continuing Resolution Raises Potential Pitfalls for Contractors

As Yogi Berra famously quipped, “It’s like Déjà vu all over again!”  In that spirit, Congress has again signaled that it will pass a continuing resolution to fund the Government through spring—despite vocal opposition from the Pentagon.  As a result of this short term funding mechanism, contractors face a number of potential pitfalls:  contract options … Continue Reading

SBA Considers Potential Consequences of Kingdomware Technologies

As we discussed in a recent post, the Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States left a number of questions unanswered regarding the implementation of set-aside requirements for veteran-owned small businesses under Federal Supply Schedule (“FSS”) contracts.  The decision has already had repercussions outside the set-aside context, with the Court of Appeals … Continue Reading

DoD Proposes DFARS Changes in Attempt to Promote Voluntary Disclosure of Defective Pricing

Pursuant to the Truth in Negotiations Act (TINA), contractors are required to submit current, accurate, and complete cost or pricing data when negotiating certain contracts with the Government.  On November 20, the Department of Defense (DoD) published a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS).  The change would require DoD contracting … Continue Reading

Judge Rejects Government’s Objections and Orders 1st Bifurcated FCA Trial of Its Kind

Last week, a federal court reaffirmed its decision to hold an upcoming False Claims Act (“FCA”) trial in two parts, in what is the known instance of a court bifurcating the liability phase of a FCA trial. The case, United States v. AseraCare, Inc., Civ. Action No. 2:12-CV-245-KOB (N.D. Alabama), concerns the alleged submission of … Continue Reading
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