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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 privileged information from its internal investigation relating to the subject matter of four statements in its mandatory disclosure submission. Id. at 1. In doing so, the Fourth Circuit confirmed that “Government contractors should not fear waiving attorney-client privilege” when making mandatory disclosures. It also curtailed an outlier ruling and provided reassurances to other corporations and individuals who routinely make similar disclosures and fact proffers to the government.
Continue Reading Have No Fear: Fourth Circuit Confirms Contractors Shouldn’t Fear Privilege Waivers When Making Mandatory Disclosures

The Inspector General (“IG”) of the Department of Defense issued a report on October 1, 2015, sharply criticizing the performance of Defense Contract Management Agency (“DCMA”) contracting officers.  In a sample of 21 business system deficiency reports (collected from the 164 reports filed between July 2012 and June 2013) the IG investigation found none that fully complied with DCMA’s obligations under the Defense Federal Acquisition Regulation Supplement.  The overwhelming majority of the reports were deficient in multiple respects, and many of them were severely untimely.

Should government contractors celebrate this public admonishment from the IG?  Probably not.

Although the investigation alleges serious lapses in the timeliness and sufficiency of DCMA’s reports, it rests on the presumption that DCMA needs to be more aggressive in identifying and correcting deficiencies.  The report does not suggest, for example, that the DCMA’s delays result from overzealous investigations or excessive focus on insignificant concerns.  Instead, the report calls for reforms that would increase the incentives for DCMA contracting officers and Defense Contract Audit Agency (“DCAA”) auditors to take swift, aggressive action.    …
Continue Reading Defense IG’s Criticism of DCMA Is Cold Comfort for Government Contractors

As federal spending for Operation Inherent Resolve surpasses the $1 billion mark, the U.S. military campaign against ISIS forces in Iraq and Syria has a new oversight team.  Late last month, the Honorable Jon T. Rymer, Inspector General for the Department of Defense (“DoD”), was designated lead inspector general (“IG”) for this overseas contingency operation.  Mr. Rymer is the first lead IG designated in response to an amendment to the Inspector General Act (“the Act”).  As required by the Act, he will oversee this mission in conjunction with the Department of State and the Agency for International Development (“AID”) Offices of Inspector General.

In the past, special IG offices have provided oversight to overseas contingency operations, such as the reconstruction efforts in Iraq and Afghanistan.  These oversight bodies can have positive implications for government contractors performing in these regions.  For instance, as we have discussed previously, a Special Inspector General for Afghanistan Reconstruction (“SIGAR”) report found that the Afghan government levied nearly a billion dollars of tax on contractors supporting the mission in Afghanistan despite bilateral agreements negotiated between the U.S. and Afghan governments that exempted the contractors from at least some of the levied taxes.
Continue Reading First Lead IG Designated Under Amended Inspector General Act