Michael Wagner

Michael Wagner

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Mike Wagner practices in the areas of government contracts and white collar defense and investigations. He has represented clients in the defense and aerospace, pharmaceutical, energy, and mass media industries. Mr. Wagner counsels government contractors on issues arising at all stages of the public procurement process, including contract disputes and administration, corporate acquisitions, False Claims Act compliance, suspension and debarment risks, and bid protest litigation.

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OFCCP Promulgates Final Rule Eliminating Its Authority Over TRICARE Providers

On July 2, 2020, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) promulgated a final rule resolving long-standing uncertainty regarding its enforcement authority over health care providers participating in TRICARE, a federal program that provides health care to service members, veterans, and their families.[1] The rule officially removes OFCCP’s regulatory authority over … Continue Reading

Defense Contractors Say Section 3610 and Other Contractor Support Measures Require Relief

It goes without saying that the COVID-19 pandemic has significantly affected the Department of Defense (“DoD”) and the defense industrial base.  And while Congress has taken steps to mitigate these impacts, the sheer scale of the pandemic’s effects pose a continuing challenge to both DoD and its contractors.  Now a group of major defense contractors … Continue Reading

GSA Awards First Contracts to Develop an Online Shopping Platform, and the White House Seems to Be Paying Attention

On Friday, the General Services Administration (“GSA”) announced that it had awarded three contracts to develop online shopping portals for commercially-available off-the-shelf (“COTS”) items.  The awardees are Amazon Business, Fisher Scientific, and Overstock.com.… Continue Reading

Whose Knowledge Counts? The Expanding Scope of Government Knowledge in FCA Cases

This week marks the four-year anniversary of the Supreme Court’s landmark False Claims Act decision in Universal Health Services, Inc. v. Escobar, 136 S. Ct. 1989 (2016).  In Escobar, the Supreme Court confirmed that the question of government knowledge lies at the heart of FCA liability determinations, but it did not specifically address who counts … Continue Reading

DoD Releases Draft Section 3610 Reimbursement Guidance

Last week, DoD released a draft of its much-anticipated guidance implementing Section 3610 of the CARES Act, which authorizes the government to reimburse qualifying contractors for the costs of providing certain paid leave to employees as a result of the COVID-19 pandemic.  DoD previously published a collection of memoranda, Q&A documents, and a class deviation … Continue Reading

Have No Fear: Fourth Circuit Confirms Contractors Shouldn’t Fear Privilege Waivers When Making Mandatory Disclosures

The Fourth Circuit recently rejected a trial court’s ruling that a contractor’s mandatory disclosure submission waived its attorney-client privilege over the underlying internal investigation. In re Fluor Intercontinental, Inc., No. 20-1241 (Mar. 25, 2020) (per curiam). The court granted Fluor’s mandamus petition and directed the district court to vacate its orders requiring Fluor to produce … Continue Reading

CARES Act Includes New Route to Recovery for Contractors Affected By COVID-19

Contractors sidelined by facility closures and stay-at-home orders in the wake of the COVID-19 pandemic may now have a new pathway to recovering idle labor costs.  The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act includes a provision, Section 3610, that provides a new form of relief for contractors facing delays and additional costs as … Continue Reading

State of Emergency: COVID-19, the Stafford Act, and What It All Means for Contractors

On March 13, the President declared a national emergency in response to the COVID-19 pandemic.  Doing so activated the authorities available to the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207 (the “Stafford Act”) to provide federal assistance to state and local governments responding to the emergency, … Continue Reading

Can I Recover the Added Costs of Work Caused by COVID-19?

As the fallout from COVID-19 continues, federal contractors in every industry are seeing significant impacts on their ability to perform, ranging from scheduling delays to supply chain interruptions and increased costs of performance.  We previously addressed the rules and regulations governing excusable delays, which permit a contractor to avoid default if a failure to perform … Continue Reading

“Excuse Me, My Performance Has been Interrupted”– How Excusable Delay Provisions in the FAR May Help Federal Contractors Affected by the Coronavirus

The global spread of the COVID-19 virus may put many federal contractors at risk of missing contractual deadlines. In a growing number of cases, supply chains may become cut off, work spaces may be closed, or employees may need to stay home, all of which could impact a contractor’s ability to perform in a timely … Continue Reading

A Coalition Grows: What WMATA’s Partnership with the Procurement Collusion Strike Force Means for Government Contractors

On February 18, 2020, Washington Metropolitan Area Transit Authority (“WMATA”) Inspector General Geoffrey Cherrington announced that special agents from WMATA would be partnering with the Department of Justice’s Procurement Collusion Strike Force (“PCSF”) to prevent and detect fraud affecting WMATA.  The announcement portends a growing partnership amongst federal, state, and local entities in the procurement … Continue Reading

Tenth Circuit Provides New Material on FCA’s Materiality Standard

Earlier this month, the United States Court of Appeals for the Tenth Circuit issued a decision that provided further clarity on the False Claims Act’s standard for materiality.  The decision, United States ex rel. Janssen v. Lawrence Memorial Hospital, further demonstrated that materiality should be viewed through the eyes of the government customer rather than … Continue Reading

A New Path to TAA Compliance: U.S.-Made End Products in Acetris

On Monday, the U.S. Court of Appeals for the Federal Circuit issued an opinion in Acetris Health, LLC v. United States, No. 2018-2399 (Fed. Cir. Feb. 10, 2020) (“Acetris”), that would permit pharmaceutical manufacturers to source a drug’s active pharmaceutical ingredient (“API”) from India, China and other non “designated countries” and yet still offer the … Continue Reading

New FAR Rule Expands Counterfeit Reporting Obligations

Last week, the FAR Council issued a Final Rule, setting forth new FAR provisions that require the reporting of certain counterfeit and suspect counterfeit parts and certain major or critical nonconformances to the Government – Industry Data Exchange Program (“GIDEP”).[1]  This Final Rule comes more than five years after the rule was first proposed in … Continue Reading

OFCCP Proposes Rule Removing TRICARE Health Care Providers from Its Regulatory Authority

On November 6, 2019, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued a Notice of Proposed Rulemaking (“NPRM”) aimed at resolving what OFCCP describes as a “decade of confusion.”[1] At issue is a long-standing question concerning the scope of OFCCP’s enforcement authority over health care providers participating in TRICARE, a federal … Continue Reading

Suspension & Debarment Update: Five Takeaways from the ISDC’s Annual Report

The government has released its long-awaited annual report on federal suspension and debarment activities, and the data reflect a number of trends and developments that should be of keen interest to federal contractors and grantees.  The report, which is published by the Interagency Suspension and Debarment Committee (“ISDC”), shows that suspension and debarment remain potent tools that are … Continue Reading

GSA’s E-Commerce Portal Program Is Here: What the New Solicitation Means for Government Contractors

After nearly two years of planning, GSA has released an RFP seeking prototypes of online shopping portals that would allow federal customers to buy COTS items from their computers. GSA’s plan implements Section 846 of the NDAA for FY 2018, which instructed the agency to create an internet marketplace exempt from many standard procurement regulations.  … Continue Reading

Suspension & Debarment Update: SBA to Sharpen Suspension & Debarment Procedures

Changes are coming to the suspension and debarment practices of the Small Business Administration (SBA), and contractors should ready themselves for an uptick in suspension and debarment activity as a result.  That’s the takeaway from a new audit report released last week by the SBA’s Office of the Inspector General (OIG) criticizing aspects of the … Continue Reading

Another Executive Order on Buying American, and This One Has Teeth

(This article was originally published in Law360 and has been modified for this blog.) On July 15, 2019, President Trump issued an Executive Order on Maximizing Use of American-Made Goods, Products, and Materials.  The EO directs the FAR Council to “consider” amending the Federal Acquisition Regulation’s provisions governing the implementation of the Buy American Act.  This … Continue Reading

Supreme Court Extends Statute of Limitations for Relators in FCA Cases, in Limited Circumstances

As previously discussed on this blog, the Supreme Court announced last year that it would resolve a circuit split over when a relator needed to file a qui tam action under the False Claims Act (“FCA”).  Earlier this month, the Court decided in Cochise Consultancy Inc. v. United States ex rel. Hunt, that relators can … Continue Reading

Federal Online Shopping Platform Coming Soon — GSA to Issue Prototype RFP Within the Year

In the latest step towards delivering on the long-promised “Procurement Through Commercial e-Commerce Portals” program, the General Services Administration has announced plans to build a proof-of-concept for federal online shopping, aiming to issue an RFP by the end of the year for web-based acquisition platforms.… Continue Reading

New DOJ Cooperation Credit Guidelines a Welcome Sign, but Key Questions Remain Unresolved

This week, the Department of Justice (“DOJ”) released formal guidelines (“the Guidelines”) for awarding credit to entities that cooperate in False Claims Act (“FCA”) investigations. Frequently hinted at by DOJ officials in recent speeches and public statements, the Guidelines have been eagerly anticipated by practitioners in the FCA space. Despite the build-up, the Guidelines are … Continue Reading

New York Executive Order and Legislation Signal Increased Debarment Activity

Two recent developments in Albany suggest that New York is poised to kick its debarment activity into a higher gear. First, Governor Andrew Cuomo issued an executive order pointedly reminding state entities of their authority to debar non-responsible contractors and directing all state entities to ensure that contractors remain “responsible” throughout the term of their … Continue Reading

Suspension & Debarment Update: Department of Labor Announces New Pilot Program

Keen observers of federal suspension and debarment practice have noticed a recent change at the Department of Labor (DOL):  After years of inactivity, DOL’s discretionary suspension and debarment program suddenly came to life in 2017 and has been issuing suspensions and debarments at a steady clip ever since. [1]  Now, according to a recent announcement, … Continue Reading
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