Kathy Brown

Kathy Brown

Kathy Brown focuses on assisting clients in defense-related industries with government contracts, antitrust, mergers and acquisitions, tax, and regulatory issues. Ms. Brown brings more than three decades of experience in government defense contracts and defense industry M&A, including competition reviews and Committee on Foreign Investment in the United States (CFIUS) and Foreign Ownership, Control or Influence (FOCI) reviews. She has served as associate general counsel for Acquisition, Technology & Logistics in the Defense Department’s Office of General Counsel since 1990. Prior to that, Ms. Brown served for eight years as associate general counsel at Defense Logistics Agency, the Defense Department’s largest logistics combat support agency.

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ASBCA Addresses CDA Jurisdiction Over Claims Involving Contractor Fraud

The Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) recently issued an opinion addressing several important, and controversial, topics of interest to government contractors.  The lengthy opinion addressed key issues related to the Board’s jurisdiction over government claims and affirmative defenses based on alleged contractor fraud, the Contract Disputes Act (“CDA”) statute of limitations, … Continue Reading

The CBCA Chews Up Agency’s Erroneous Allegation that Contractor Is Getting a ‘Second Bite at the Apple’

At the intersection of bid protests and claims, in Optimum Services, Inc. v. Department of the Interior, CBCA 4968 (May 2, 2016), the Civilian Board of Contract Appeals (“CBCA” or “Board”) recently encountered the question of whether a decision by the Government Accountability Office (“GAO”) can preclude a contractor from later maintaining an appeal of … Continue Reading

DoD Rule Would Help Contractors Protect Their Technical Data Rights in Commercial Items Used in Major Systems

The Department of Defense (DoD) is considering a proposed rule that would help contractors protect their technical data rights in privately-developed commercial items that are incorporated into major systems, including major weapons systems. The proposed rule likely will be welcomed news to the defense industry, which has long sought to defend contractors’ intellectual property rights … Continue Reading

FTC and DoJ Question DoD’s Proposed National Security Trump Card

In an apparent reaction to recent efforts by the Department of Defense to obtain authority to approve mergers in the defense industry on national security grounds, the Department of Justice and the Federal Trade Commission today issued a Joint Statement explaining the standard of review that the antitrust agencies use when evaluating proposed transactions in … Continue Reading

Defense Contractors Must Share (Even More) Information About Their IR&D Projects Before DoD Will Reimburse IR&D Costs

The Department of Defense (DoD) will require contractors to disclose more information about their Independent Research & Development (IR&D) projects before the Government will reimburse IR&D costs, the Pentagon said in a proposed rule issued earlier this week.  The proposed rule, which was previewed in an August 2015 white paper, is the latest sign that … Continue Reading

FAR Council Proposes to Disallow Costs of Congressional Investigations That Result From Adverse Legal and Administrative Proceedings

On February 17, 2016, the FAR Council proposed a rule that would add a new category of unallowable costs to FAR Part 31 — costs of responding to an inquiry by Congress, if that inquiry results from a judicial or administrative proceeding in which the contractor is found criminally liable, found liable for civil fraud, … Continue Reading

DoD To Reconsider How It Evaluates Proposed IR&D Projects In Awarding Government Contracts

The Department of Defense (DoD) is considering a proposed rule that would prevent defense contractors from promising future Independent Research & Development (IR&D) investments as a way to gain a competitive price advantage in DoD procurements.  Although DoD’s rulemaking is in its early stages, defense contractors with substantial IR&D programs should monitor these developments closely, … Continue Reading

FAR Council Adds New Layer to Small Business Subcontracting Rules

On January 20, 2016, the FAR Council published a proposed rule calling for changes to FAR Parts 19 and 52 that address payments to small business subcontractors.  The proposed changes, which are intended to implement regulations adopted by the Small Business Administration (SBA) in 2013, will expand the range of small business-related obligations imposed on … Continue Reading

National Security M&A Trump Card for DoD?

The Under Secretary of Defense for Acquisition, Technology, & Logistics, Frank Kendall, made seismic remarks last week announcing that the U.S. Department of Defense (DoD) will seek independent authority from Congress to approve or disapprove M&A transactions in the defense industrial base for national security reasons, creating potential shock waves among the companies in that … Continue Reading

DoD IR&D Projects May Not Be So “Independent” For Long

Last week, the Department of Defense (DoD) issued a white paper announcing that, beginning in FY2017, it will require contractors to notify DoD before undertaking any new Independent Research & Development (IR&D) projects. Contractors also will be required to inform DoD of “the results from these investments.” The white paper acknowledges that these requirements are a departure … Continue Reading

Updated DoD IG Guidance Signals New Enforcement Emphasis for DCAA Auditors

The Department of Defense Office of Inspector General (“DoD IG”) appears poised to place new emphasis on the pursuit of fraud cases in certain key enforcement areas, at least according to updated agency guidance recently published online. Earlier this month, the DoD IG quietly revised its “Auditor Fraud Resources” page, intended to serve as guidance … Continue Reading

D.C. Circuit Creates Circuit Split Regarding Jurisdictional Nature of the False Claims Act’s First-to-File Rule

In the recently decided U.S. ex rel. Heath v. AT&T Inc., No. 14-7094 (June 23, 2015), the D.C. Circuit rejected the general consensus of the circuit courts and held that the False Claims Act’s (“FCA”) first-to-file rule is not jurisdictional.  This decisions creates a circuit split between the D.C. Circuit and the First, Fourth, Fifth, … Continue Reading

Agency’s Continued Evaluation of Bids Does Not Violate CICA Stay

In a decision earlier this month, the Court of Federal Claims (“COFC”) found that an agency’s continued evaluation of bids during the pendency of a stay under the Competition in Contracting Act (“CICA”) neither violates CICA nor constitutes “a de facto override” of the stay.  The case is Caddell Construction Co. v. United States, Nos. … Continue Reading

GAO Sustains Protest Based On Improper Actions Of Acquisition Services Contractor

In an unusual case, the Government Accountability Office sustained a protest alleging that an acquisition services contractor had acted unilaterally to prevent an offeror from participating in a Department of State competition.  The decision serves as a reminder that procuring agencies bear responsibility for the actions of acquisition services contractors.… Continue Reading

GAO Issues Report on Agency Response to Migration of Unaccompanied Children from Central America

The Government Accountability Office (“GAO”) recently published a report regarding the increased migration of unaccompanied alien children from El Salvador, Guatemala, and Honduras.  The report focused on the responses of officials from the Department of State (State), U.S. Agency for International Development (USAID), and the Department of Homeland Security (DHS).  These officials relied on first-hand … Continue Reading

Off the Mark?: Fourth Circuit Reverses FCA Dismissal Using Implied Certification Theory

In its January 8 decision in United States v. Triple Canopy, Inc., the Fourth Circuit reiterated its acceptance of the implied certification theory of False Claims Act (“FCA”) liability.  Under the FCA, a contractor can face steep financial penalties for knowingly making false statements in order to get fraudulent claims paid or approved by the … Continue Reading

The Defense Department Releases Updated Acquisition Guidance

Continuing its effort to reform military acquisitions, the Department of Defense (“DoD”) recently released an updated version of its acquisition guideline, DoD Instruction (“DoDI”) 5000.02, Operation of the Defense Acquisition System, available here.  The updated document incorporates the changes from an interim version of the Instruction released on November 26, 2013, and emphasizes tailoring acquisition … Continue Reading

Senator McCain Renews Focus on Ending Cost-Plus Contracts

A longtime and well-known proponent of defense acquisition reform, Senator John McCain assumed the chairmanship of the U.S. Senate Armed Services Committee (“SASC”) on January 6.  Sen. McCain has been particularly outspoken concerning cost overruns on major systems procurement projects.  He has characterized the “cost-plus” contract structure as among the key causes of these overruns, … Continue Reading

Federal Information Technology Reform Act Included in the House-Passed NDAA FY 15

A major piece of IT acquisition reform legislation called the Federal Information Technology Acquisition Reform Act (“FITARA”), on which we have previously reported, was included in version of the National Defense Authorization Act for Fiscal Year 2015 (“NDAA FY 15”) passed by the House on December 4, 2014, along with other significant IT reform provisions related to … Continue Reading

GAO Sustains Bid Protest Due to Awardee’s Failure to Commit to Davis-Bacon Wage Rates

The Government Accountability Office (“GAO”) this week sustained the protest of a lease award to an offeror that failed to commit to pay wage rates required under the Davis Bacon Act, which was a material requirement of the Request for Lease Proposal (“RLP”).  The GSA’s RLP, which called for the lease of 12,500 square feet … Continue Reading

Defense Production Act Amended and Extended

On September 26 President Obama signed a bill (H.R. 4809) amending and extending the Defense Production Act (“DPA”) through September 30, 2019. The DPA (Pub.L. 81–774) was originally enacted in 1950 as part of a broad civil defense and war mobilization effort in response to the Cold War.  As discussed in a recent post, the … Continue Reading

Bilateral Security Agreement Could Mean Afghan Tax Relief for U.S. Contractors

Yesterday the White House announced the signing of a Bilateral Security Agreement (“BSA”) between the United States and the Afghan Government of National Unity, as well as a Status of Forces Agreement between the Afghan Government and NATO.  Together these agreements allow approximately 12,000 U.S. and NATO troops to remain in Afghanistan after December 31, … Continue Reading

Pentagon Issues New Procurement Guidelines and Adds Hurdles to Sole Source Awards

On August 21, 2014, the Undersecretary of Defense for Acquisition, Technology and Logistics issued a Memorandum titled Actions to Improve Department of Defense Competition.  This Memorandum serves as a reminder to Department of Defense (“DOD”) contracting officials, and the contracting community at large, that the DOD will continue to emphasize competition in contracting. The Memorandum … Continue Reading