Justin Ganderson

Justin Ganderson

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.

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CBCA Proposes Changes to its Rules

On March 28, 2018, the Federal Register published proposed changes to the Civilian Board of Contract Appeals’ (“Board”) Rules of Procedure regarding appeals under the Contract Disputes Act (“CDA”).  These proposed rules indicate that the Board wishes to: simplify and modernize access to the Board, clarify certain rules, and increase conformity between its rules and … Continue Reading

Key Takeaways From The “New York Buy American Act” And Beyond

[This article was originally published in Law360 and has been modified for the blog.] This was not an April Fools’ Day joke: The New York Buy American Act (“NY BAA”) went into effect on April 1, 2018. Signed by Governor Andrew M. Cuomo in December 2017 and championed by state legislators on both sides of … Continue Reading

Key Takeaways from Trump’s Infrastructure Plan—Private Financing And A Capital Budget, But No “Buy American” Requirements?

Last week, President Donald Trump released his long-awaited infrastructure plan, entitled a “Legislative Outline for Rebuilding Infrastructure in America.”  Clocking-in at 53 pages, this plan is designed to “stimulate at least $1.5 trillion in new investment over the next 10 years” through $200 billion of federal funding.  The infrastructure plan is intended to provide a … Continue Reading

Will President Trump’s Infrastructure Plan Address OMB Scoring?

During his first State of the Union address on January 30, 2018, President Trump informed the country that “it is time to rebuild our crumbling infrastructure.”  He called on Congress to “produce a bill that generates at least $1.5 trillion for the new infrastructure investment we need.”  And, the President suggested that “every Federal dollar … Continue Reading

Key Takeaways from Bipartisan Bill to “Strengthen Buy American Requirements”

Following recent efforts by Democrats to push for “Buy American” action, on January 9, 2018, Senator Chris Murphy (D-CT) proudly announced via Twitter that there now is “bipartisan support for strengthening our Buy American laws” and that he is “excited to have the Trump admin[istration] and partners like [Senators Rob Portman (R-OH), Lindsey Graham (R-SC) … Continue Reading

Senate Democrats Continue Efforts to Strengthen “Buy American” Requirements

Over the last few months, various Senate Democrats have pushed to strengthen “Buy American” requirements applicable to Federal Government procurements. This month is no different. On December 6, 2017, Senator Chris Murphy (D-CT) reintroduced the 21st Century Buy American Act (S.2196), which aims to “strengthen existing Buy American standards to ensure that the U.S. government … Continue Reading

Government Contracts 101 Reminder: Certified Claims Must Include a “Signature”

Earlier this Fall, the Armed Service Board of Contract Appeals dismissed an appeal for lack of jurisdiction because the certified claim lacked a proper signature. Appeal of NileCo General Contracting LLC, ASBCA No. 60912 (Sept. 22, 2017). This simple oversight proved decisive. Although this case does not chart a new course in Contract Disputes Act … Continue Reading

Senate Democrats Notch a “Buy American” Victory

As we reported late last month, one-third of the Senate Democratic caucus doubled down on efforts to keep “Buy American” protections intact for certain defense items. Now Senate Democrats are declaring a “Buy American” victory as the FY 2018 NDAA conference report revealed that some of these protections will remain.… Continue Reading

Left Holding the Bag: Release Provision Precludes Recovery for Costs Incurred Post-Release

Over the last year, we have reported extensively on various government contract decisions regarding contract releases. In Sylvan B. Orr v. Department of Agriculture, CBCA 5299 (Sep. 29, 2017), the Civilian Board of Contract Appeals (“CBCA” or “Board”) published yet another notable opinion on this topic. This decision demonstrates why it is critical to reserve … Continue Reading

Senate Democrats Double Down on “Buy American”

As we reported last month, four Senate Democrats published an article about “strengthen[ing]” the U.S. Government’s “Buy American policies” through certain proposed amendments to the FY 2018 National Defense Authorization Act (“NDAA”). Although most of the proposed “Buy American” amendments were left out of the version of the bill that was sent to conference, 16 Senate Democrats … Continue Reading

Senate Democrats Look to Strengthen “Buy American” Policies and Requirements

Last week a group of four Senate Democrats – led by Minority Leader Chuck Schumer (D-NY) – jointly published an article about “strengthen[ing]” the U.S. Government’s “Buy American policies.” While the senators acknowledged President Trump’s recent efforts to “re-examine the use of . . . Buy American waivers” (see our blog post regarding the “Buy … Continue Reading

Six Takeaways from President Trump’s Executive Order on Assessing Manufacturing and the Defense Industrial Base

[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

Predictability of Outcomes in Discovery Disputes at CBCA Improves During its First Ten Years

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

Key Takeaways from Trump Administration Memo on Buy American Laws

[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

GAO Recommends Improvements to DOE’s Fraud Controls; DOE Fires Back

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

Long Live Reasonableness: Reinforcing the Implied Duty of Good Faith and Fair Dealing in Government Contracts

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

A Tale of Two Contract Releases: One for the Government, One for the Contractor

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

Key Takeaways From President Trump’s “Buy American” Executive Order

[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

The Latest Clue to Solving the Maropakis Riddle: The Affirmative Defense of Offset

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

Common Sense Prevails: “Tougher” To Satisfy Rule 9(b) Standard in “Implied Certification” FCA Case Arising from GSA Schedule Contractors’ Alleged TAA Non-Compliance

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

Key Takeaways From Recent Decisions Discussing Release Of Claims Provisions

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

President Trump’s First Address to Congress Foreshadows Increased Buy American Act Enforcement

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 self-effectuating deemed release of claims? Say it ain’t so.

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

When does a contract release release a claim? A classic contract tongue twister.

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
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