Justin Ganderson focuses his practice in the areas of claims and disputes resolution, internal investigations, public and private partnerships, utility privatizations, and general federal government contract counseling.
[This article was originally published in Law360.] On July 21, 2017 – and during “Made in America Week” – President Trump issued Executive Order 13806 on “Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States” (the “Manufacturing EO”). The Manufacturing EO sets forth a policy stressing the … Continue Reading
In recognition of the decennial anniversary of the U.S. Civilian Board of Contract Appeals (“Civilian Board”), we set out to determine notable trends in Civilian Board practice. Among other things, we identified a recent marked increase in the number of published decisions containing substantial discussions of discovery issues – more than half of the 24 … Continue Reading
[This article also was published in Law360.] On June 30, 2017, Commerce Secretary Ross and OMB Director Mulvaney issued a Memorandum to Federal agencies regarding the “assessment and enforcement of domestic preferences in accordance with Buy American Laws,” which includes the Buy American Act (“BAA”). Although the Memorandum purports to provide guidance to help agencies … Continue Reading
Earlier this month the U.S. Government Accountability Office (“GAO”) released a report titled “Department of Energy: Use of Leading Practices Could Help Manage the Risk of Fraud and Other Improper Payments” (GAO-17-235) (the “Report”). As the title suggests, GAO assessed the Department of Energy’s (“DOE”) internal controls to manage “the risk of fraud and improper … Continue Reading
Last month, in CanPro Investments Ltd. v. United States, COFC No. 16-268C (April 2017), the Court of Federal Claims (“COFC” or “Court”) denied the Government’s motion for reconsideration and reaffirmed its prior decision that CanPro Investments Ltd. (“CanPro”) may continue to litigate its claim for breach of the implied duty of good faith and fair … Continue Reading
On the heels of our recent post offering key takeaways from recent release of claims decisions, the ASBCA and the CBCA have published another round of notable opinions regarding contract releases: Supply & Service Team GmbH, ASBCA No. 59630 and ServiTodo, LLC, CBCA 5524. Both decisions are important, albeit for different reasons. The ASBCA decision demonstrates … Continue Reading
[This article was originally published in Law360.] President Trump took a significant step this week towards implementing his often touted objective of protecting U.S. manufacturers and workers by signing the “Presidential Executive Order on Buy American and Hire American” (the “EO”) on April 18, 2017. In addition to addressing reforms to the H1-B visa program … Continue Reading
When must a party’s “defense” be asserted as a Contract Disputes Act (CDA) claim in order to raise that defense during a Court of Federal Claims or Board of Contract Appeals proceeding? In Kansas City Power & Light Co. v. United States, the Court of Federal Claims moves us one step closer to solving this peculiar … Continue Reading
A U.S. District Court recently dismissed a False Claims Act (FCA) qui tam action alleging that numerous GSA Schedule contractors violated their obligations under the Trade Agreements Act (TAA), resulting in the submission of false claims under the “implied certification” theory of FCA liability. As discussed further below, the court’s decision — United States ex rel. Berkowitz … Continue Reading
Over the last few months, we’ve reported on various government contracts decisions that illustrate the impact a release of claims provision can have on contractors. A few weeks ago, we published a Feature Comment in The Government Contractor (titled “Release Me? Five Things Every Government Contractor Needs To Know Before Signing A Release Of Claims”) … Continue Reading
On February 28, 2017, President Donald J. Trump addressed a joint session of Congress for the first time and outlined his plan for a “new chapter of American Greatness.” That plan included continued emphasis on protecting United States labor and manufacturing, and can be summarized in a few words often repeated by President Trump: “Buy … Continue Reading
A few weeks ago, we provided a few tips for negotiating and assessing a release contained in a contract modification, and discussed why the Civilian Board of Contract Appeals (CBCA) found that a global release contained in one of many contract modification was ambiguous. Now, we consider a different scenario: what happens when a final … Continue Reading
You are reviewing a contract modification and notice a paragraph titled “Release of Claims.” Do you know what claims will be released by this language? Or worse, the contracting officer just issued a final decision rejecting your claim (under the Contract Disputes Act) because the release in a contract modification constituted an accord and satisfaction. … Continue Reading
The Civilian Board of Contract Appeal’s recent decision in Muhammad v. Department of Justice provides another example of an Agency Board of Contract Appeals requiring the Government to file the complaint instead of the contractor—a growing trend which promotes more efficient appeals by helping to ensure that contractors are provided adequate notice of the basis … Continue Reading
In U.S. ex rel. Beauchamp v. Academi Training Ctr., LLC, the Fourth Circuit recently determined that the public disclosure rule did not necessarily bar a False Claims Act (“FCA”) qui tam suit where the plaintiff amended its complaint with details gained from a news story that was published online after its prior complaint was filed. … Continue Reading
On November 6, 2015, the Department of Veterans Affairs (“VA”) issued a proposed rule (the “Proposed Rule”) to clarify the byzantine verification process for veteran-owned small businesses (“VOSB”) and veteran-owned service-disabled veteran-owned small businesses (“SDVOSB”)1 who want to participate in the VA’s Veterans First Contracting Program. VA Veteran-Owned Small Business Verification Guidelines, Proposed Rule, 80 … Continue Reading
United States ex rel. Hartpence v. Kinetic Concepts, Inc., No. 12-55396 (9th Cir. July 2015) is one of many recent decisions limiting a contractor’s ability to dismiss False Claims Act (“FCA”) lawsuits at an early stage of the litigation. In Hartpence, the Ninth Circuit resurrected two FCA cases in one sweeping decision by interpreting the … Continue Reading
Effective August 12, 2015, New Zealand will become the 45th country to join the World Trade Organization’s (“WTO”) Government Procurement Agreement (“GPA”). As we have previously discussed, this plurilateral agreement promotes open, fair, and transparent competition in the government procurement markets of participating countries. Importantly, the GPA requires member countries to treat suppliers of goods … Continue Reading
In Cooley Constructors, Inc. v. GSA, CBCA No. 3905 (June 8, 2005), the Civilian Board of Contract Appeals (CBCA) found that the substance of an appeal – not the form – is the prevailing consideration when analyzing whether the CBCA has jurisdiction to hear a sponsored-subcontractor appeal under the Contract Disputes Act (CDA). Consistent with … Continue Reading
Last week the Defense Logistics Agency (DLA) Energy issued a statement on DLA’s website about its plan to “increase the productivity, efficiency and effectiveness of [the] Air Force’s utility services contracts” – a plan that dovetails with the Department of Defense’s (DOD) Better Buying Power 3.0 initiative (BBP 3.0). This should be good news for utility … Continue Reading
