This is the sixteenth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”). The first blog summarized the Cyber EO’s key provisions and timelines, and the subsequent blogs described the actions taken by various Government agencies to implement the cyber EO from June 2021 through July 2022. This blog describes key actions taken to implement the Cyber EO during August 2022.Continue Reading August 2022 Developments Under President Biden’s Cybersecurity Executive Order
Terra White Fulham represents corporations and individuals facing criminal and civil investigation. Her experience includes representing clients in government investigations, responding to grand jury subpoenas and government inquiries, and conducting internal investigations. She has experience in enforcement matters concerning the False Claims Act, the Foreign Corrupt Practices Act, environmental statutes, and other federal fraud and conflict of interest statutes. Ms. Fulham also has experience in civil litigation matters, including commercial and environmental tort litigation.
On February 17, 2021, Senator Chuck Grassley (R-IA) and Brian Boynton, Acting Attorney General for the Department of Justice’s Civil Division, provided opening remarks at the Federal Bar Association’s annual Qui Tam Conference. Both emphasized the key role of the FCA in combating fraud against the Government, and noted an anticipated increase in FCA enforcement actions in the coming years, particularly related to the Government’s pandemic response. In addition, Senator Grassley offered a preview of potential legislative changes to the False Claims Act, and Boynton outlined DOJ’s enforcement priorities for the coming year.
Continue Reading Senator Grassley and Senior DOJ Official Discuss Potential False Claims Act Changes and Enforcement Priorities
On January 4, 2017, the Department of Defense’s top acquisition official issued a memorandum further clarifying the implementation of a November 2016 final rule concerning the reimbursement of major contractors’ Independent Research & Development (“IR&D”) costs. In a move likely intended to reassure major defense contractors, Undersecretary of Defense for Acquisition, Technology & Logistics, Frank Kendall, stressed that the recent final rule “merely codifies a long standing practice” used by contractors. Mr. Kendall also emphasized that DoD does not require major contractors to obtain formal or “de facto” approval of IR&D projects before incurring such costs.
But while DoD’s efforts to comfort industry are commendable, some key questions remain, including most prominently: whether and how DoD auditors will utilize the results of pre-IR&D “technical interchange” meetings to question the allowability of IR&D costs.Continue Reading DoD Reassures Major Contractors It’s Not Returning to Old IR&D Practices, But Significant Questions Still Remain
Earlier this month, in Rothe Development, Inc. v. Department of Defense, the D.C. Circuit upheld the constitutionality of the Small Business Administration (“SBA”) 8(a) program by rejecting arguments that the Small Business Act contains an unconstitutional classification based on race. Although the decision will likely be seen as a positive development for small business government contractors and other 8(a) program supporters, the court’s opinion leaves the door open for further challenges to the 8(a) program based on the SBA’s implementing regulations.
Continue Reading D.C. Circuit Upholds Constitutionality of SBA’s 8(a) Program
On July 12, 2016, in Coast Professional, Inc. et. al v. United States, No. 2015-5077 (Fed. Cir. July 12, 2016), the U.S. Court of Appeals for the Federal Circuit overturned a Court of Federal Claims (“CoFC”) decision, finding that the CoFC erred in ruling that it did not have bid protest jurisdiction over the award of task orders characterized as “award-term extensions.” The Federal Circuit’s decision provides clarity on the scope of Tucker Act’s bid protest jurisdiction, and provides a strong defense against Government arguments that attempt to limit that jurisdiction going forward.
Continue Reading Federal Circuit Confirms that Award Term Extension Constitutes New Contract for Purposes of Bid Protest Jurisdiction
On June 16, 2016, the Department of Defense (DoD) issued a proposed rule to implement Section 815 of the National Defense Authorization Act for Fiscal Year 2012, which was originally enacted in December 2011. Under the proposed rule, DoD would be given additional flexibility to release technical data or computer software to third parties (including competitors) if the data qualify as “segregation or reintegration” data. Although the data would include limited-rights data or restricted-rights software, the recipient would be permitted to use the data or software only for segregation or reintegration, and must destroy the data or software at the “completion of authorized activities.” The rule also permits, among other changes, the DOD to require delivery, without any time limits, of various technical data and software that either have been generated or merely “utilized” in the performance of a contract. Four years in the making, this proposed rule attempts to implement and clarify statutory changes introduced in section 815 of the National Defense Authorization Act for Fiscal Year 2012 (the “2012 NDAA”). Despite the attempt to clarify, the proposed regulations still leave open significant questions for contractors with respect to technical data rights.
Continue Reading DoD Finally Issues Proposed Rule Addressing 2012 NDAA Changes to Technical Data Rights
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, and the impact of criminal plea agreements and civil False Claims Act settlements on contract disputes.
Continue Reading ASBCA Addresses CDA Jurisdiction Over Claims Involving Contractor Fraud
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 officers to request a limited-scope audit if a contractor voluntarily discloses defective pricing, unless a full-scope audit is “appropriate for the circumstances.” In theory, if the rule is implemented, contracting officer would have the flexibility to focus an audit on the defective portions disclosed by the contractor and not reexamine all previously provided pricing data. Though the proposed rule appears to be DoD’s attempt to provide limited relief to defense contractors facing significant regulatory burdens under TINA, it is not clear the rule as written will provide any such relief.
Continue Reading DoD Proposes DFARS Changes in Attempt to Promote Voluntary Disclosure of Defective Pricing
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 false claims to Medicare for hospice benefits. The defendant, AseraCare, is a for-profit national chain of hospice providers. Like other similar organizations, AseraCare receives a significant amount of Medicare funds on behalf of individuals eligible to receive Medicare benefits. To be eligible for hospice care paid by Medicare, an individual must be certified by a physician as “terminally ill,” meaning that the individual has a life expectancy of six months or less. The Government alleges that AseraCare hid information from physicians in order to secure certifications of hospice eligibility for patients who were not terminally ill, making the claims the company submitted for Medicare reimbursement false. The Government also alleges that AseraCare had a general pattern and practice of obtaining false certifications, motivated by an interest in obtaining Medicare funds and more revenue.
Continue Reading Judge Rejects Government’s Objections and Orders 1st Bifurcated FCA Trial of Its Kind