Smith Pachter McWhorter PLC is pleased to announce that Jonathan K. Keller has joined the firm as an associate attorney focusing his practice on government contracts, construction, and white collar defense and government investigation.
Smith Pachter McWhorter PLC is pleased to announce that Jonathan K. Keller has joined the firm as an associate attorney focusing his practice on government contracts, construction, and white collar defense and government investigation.
Iris E. Bennett will be moderating an exclusive in-house compliance roundtable at the ACI Anti-Corruption Mexico Conference on October 8, 2020, as part of a “boardroom-style” networking and benchmarking session for in-house legal and compliance professionals.
Smith Pachter McWhorter Members John S. Pachter and Cormac T. Connor will lead a webcast panel discussion with G. Zachary Terwilliger, U.S. Attorney, Eastern District of Virginia, and Patricia Becker, Deputy General Counsel of Chemring Group PLC, on the Department of Justice’s (DOJ) Procurement Collusion Strike Force (PCSF) and implications for government contractors.
Smith Pachter McWhorter PLC is pleased to announce that Jessica L. Nejberger has joined the firm as an associate attorney, focusing her practice on government contracts, construction and white collar law.
Smith Pachter McWhorter congratulates our attorneys for being selected to serve in committee leadership roles in the American Bar Association (ABA) Section of Public Contract Law (PLC) for the 2020-2021 year.
Smith Pachter McWhorter government contract attorneys Julia S. Shagovac and Nora K. Brent will present “GSA Schedule vs SBA 8(a),” a live webinar program on September 30, 2020, hosted by federal procurement consultants Jennifer Schaus & Associates, based in Washington, D.C.
Smith Pachter McWhorter PLC is pleased to announce that Amanda C. DeLaPerriere has joined the firm as an associate attorney, focusing her practice on government contracts, construction and white collar law.
On July 16, 2020, the U.S. government announced criminal and civil enforcement actions against Essentra FZE Co. Ltd. (“Essentra”), a global supplier of cigarette products incorporated in the U.A.E., for North Korea Sanctions violations. Essentra entered into a deferred prosecution agreement (“DPA”) with the U.S. Department of Justice (“DOJ”) for conspiring to violate the International Emergency Economic Powers Act and defrauding the United States in connection with evading sanctions on North Korea. This DPA is noteworthy because it marks the DOJ’s first ever corporate enforcement action for violations of sanctions on North Korea. In the civil enforcement action, Essentra entered into a settlement agreement with the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”). Under these agreements, Essentra admitted that it received payments in bank accounts operated by the foreign branch of a U.S. financial institution that were for the sale of cigarette products that Essentra knew were destined for North Korea. It is notable that Essentra was targeted for criminal enforcement for receiving U.S. dollar or other currency payments into accounts held at a non-U.S. branch of a U.S. bank. DOJ and OFAC make clear that, regardless of which way the money flows, the facts may support liability under U.S. sanctions regimes. These actions signal that OFAC and the DOJ may be adopting a broader approach to sanctions enforcement.
On July 3, 2020, the Criminal Division of DOJ and the Enforcement Division of SEC released their first update to the Resource Guide to the U.S. Foreign Corrupt Practices Act since November 2012. The FCPA Resource Guide is a one-stop reference manual for the statutory requirements of the FCPA, DOJ’s and SEC’s enforcement policies and practices, recent enforcement actions and declinations, and applicable case law and DOJ opinion releases.
Construction Executive has ranked Smith Pachter McWhorter PLC in The Top 50 Construction Law Firms™ for 2020.
On June 1, 2020, the Criminal Division of the U.S. Department of Justice (“DOJ”) published an updated version of its Evaluation of Corporate Compliance Programs, an official guide for prosecutors on how to evaluate a company’s compliance programs. “Today’s revised guidance on the Evaluation of Corporate Compliance Programs reflects additions based on our own experience and important feedback from the business and compliance communities,” Assistant Attorney General Brian Benczkowski commented.
Though most of the changes to DOJ’s prior Compliance Guidelines represent refinements of points in the prior versions, they nonetheless constitute significant trend indicators for evaluating compliance programs against evolving business realities.
Stephen D. Knight will teach a DC Bar CLE webinar course, "Top 10 Things You Should Know About Government Contracts," on Thursday, July 9, 2020, from 9:30 a.m. - 12:45 p.m.
Iris E. Bennett and Cormac T. Connor will be speaking at the upcoming DC Bar Panel Program webinar, "Preserving Your Client’s Privileges and Confidences During Internal Investigations," on Wednesday, June 3, 2020. Panel speakers include: Allison Barlotta, Booz Allen Hamilton; Iris Bennett, Smith Pachter McWhorter PLC; Cormac Connor, Smith Pachter McWhorter PLC; and Courtney Edmonds, Leidos.
Brian J. Vella, Kathryn T. Muldoon Griffin, Jacob B. Bolinger and Max G. Terhar will be presenting on the topic of "Recent Developments in Construction Law" at the upcoming American Road & Transportation Builders Association (ARTBA) 12th Annual Virtual Law & Regulatory Forum held live online June 3-4, 2020.
Smith Pachter McWhorter member John S. Pachter will be a panelist at the upcoming American Bar Association Section of Public Contract Law Debarment & Suspension Committee meeting presenting on the topic of "Ins & Outs of Affiliation & Imputation Principles,” held on Friday, May 22, 2020.
Federal News Network interviewed Edmund Amorosi on the Federal Drive with Tom Temin on Federal News Radio, WFED, 1500AM: "Procurement rules can trip up agencies in emergencies, but permissions exist," which aired on May 13, 2020.
Smith Pachter McWhorter PLC congratulates seven attorneys who have been selected for inclusion in the 2020 Virginia Super Lawyers® and Rising Stars list for their achievements and expertise in their areas of practice. Super Lawyers recognizes no more than five percent of attorneys in each state and the Rising Stars list recognizes no more than 2.5 percent attorneys in each state.
Zachary D. Prince and Daniel H. Ramish served as guest speakers on the FAR 2020 - Part 19 - Small Business Programs program as part of the "Get "FAR" Sighted In 2020" weekly webinar series hosted by federal procurement consultants Jennifer Schaus & Associates, based in Washington, D.C.
On May 1, 2020, President Trump signed an Executive Order (“EO”) intended to protect the nation’s power grid from foreign cyber attacks. The EO declared foreign cyber threats to the U.S. electricity grid a national emergency, and accordingly ordered action in the form of procurement and trade regulation to defend the grid against foreign attack. The EO establishes a task force to protect the power grid from attacks and share risk information and risk management practices.
Chambers USA: America’s Leading Lawyers for Business recognizes seven Smith Pachter McWhorter PLC lawyers as leaders in their field in its 2020 guide. Chambers USA 2020 has also ranked the firm’s government contracts and construction practice groups. Chambers USA is the preeminent legal ranking of attorneys and law firms with regional and national rankings driven by independent interviews of clients and peers.
Law360 features Expert Analysis by Edmund M. Amorosi, Stephen D. Knight, Jonathan D. Shaffer and Daniel H. Ramish on fast-track emergency procurement methods in the article "Avenues For Fast-Tracking Gov't Procurement In Emergency."
Who's Who Legal 2020 has selected five Smith Pachter McWhorter members in the areas of Construction, Government Contracts, and Mediation in 2020. Nominees are selected based upon comprehensive, independent surveys with both general counsel and construction and government contract lawyers in private practice worldwide.
On May 28, 2020, Smith Pachter McWhorter attorneys Jonathan D. Shaffer and Todd M. Garland will present a CLE webinar on “Federal Bid Protest Mitigation - Avoidance and Defenses,” highlighting government procurement issues that result in protests and provide lessons learned from recent bid protest decisions.
The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) will provide more than $2 trillion in relief to those hardest hit by the economic impacts of the COVID-19 pandemic. Under the CARES Act, the federal government will provide checks to an estimated 150 million American households, set up loan programs for businesses, increase unemployment insurance programs, provide funds to hospitals and local governments, among other actions. As the largest economic stimulus package in history, there is a natural focus in the CARES Act on making sure that funds are used for their intended purpose, thus creating three new oversight bodies: the Office of the Special Inspector General for Pandemic Recovery within the Treasury Department (“SIGPR”); the Pandemic Response Accountability Committee (“PRAC”); and a Congressional Oversight Commission. Businesses benefiting from the much-needed relief the CARES Act provides should take the opportunity now to prepare for the increased scrutiny of a special Inspector General. Both during the pandemic response and after it subsides, we can expect that the SIGPR will probe how CARES Act funds were deployed with the full benefit of hindsight.
Government contractors are playing a critical role providing essential goods and services to aid the Government's response to the COVID-19 pandemic. This client alert provides an overview for contractors and agency procurement officials of the most significant acquisition changes for sourcing goods and services more quickly given the urgent situation, which include increased simplified acquisition thresholds, pre-established commercial item status for specified goods and services essential to the pandemic response, relief from competition requirements, and easing of some administrative requirements for doing business with the federal government. There are also special avenues for contributing to the relief efforts, including the National Disaster Registry and a program granting state and local governments access to GSA and VA schedules for emergency relief.
Smith Pachter McWhorter, Jackson Lewis and BDO will host a webinar on "Practical Guidance for Federal Contractors Navigating a COVID-19 Environment" on Tuesday, April 7, 2020, 1:00 - 2:15 p.m., addressing important issues related to stay-at-home mandates, non-essential business closures and restrictions, and orders related to the COVID-19 pandemic impacting employers. Federal government contractors face additional challenges with agency, contract or site-specific closures or restrictions impacting their ability to continue work as usual. At the same time Congress is enacting laws expanding paid and unpaid leave for certain workers, directing federal agencies to consider reimbursement of paid leave for certain government contractors, and providing additional unemployment benefits, loans and tax incentives. Panelists will address questions on these and other issues impacting contractors.
Federal Publications Seminars featured Stephen Knight on its FPS Podcast Series,Podcast #1: "Defense Production Act of 1950 Explained." The Defense Production Act of 1950 has been dormant for decades. In this FPS Podcast Stephen Knight, Partner at Smith Pachter McWhorter, explains what DPAS is and it's impact to contractors as it related to COVID-19, three executive orders and the meaning of a "rated" contract.
President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act") into law on March 27, 2020, the largest stimulus act in the history of the United States, amounting to a staggering $6.2 trillion. In addition to direct cash payment to citizens, the majority of the stimulus package is aimed at assisting businesses weather COVID-19's economic fallout. With government response changing and developing rapidly over the coming months, Smith Pachter McWhorter will provide additional guidance and analysis for contractors as the CARES Act and other response legislation is implemented.
Smith Pachter McWhorter PLC is pleased to announce that corporate and government investigation, compliance and white collar defense attorney Daniel A. Solomon has joined the firm as partner. Dan adds extensive experience in a broad range of international regulatory compliance matters, in particular, the Foreign Corrupt Practices Act (FCPA), corporate and government investigations, economic sanctions and export controls, and commercial transactions.
The COVID-19 epidemic is creating uncertainties for contractors performing government contracts due to, among other things, changes in facility access, new health rules, and an evolving situation. In apparent response to industry concerns, the Office of Management and Budget ("OMB") issued Memorandum M-20-18, “Managing Federal Contract Performance Issues Associated with the Novel Coronavirus (Covid-19)” dated March 20, 2020. OMB states that the purpose of the memorandum is to identify steps to help ensure contractor health and safety while maintaining continued contract performance in support of agency missions consistent with precautions issued by the Centers for Disease Control and Prevention (CDC).
By Executive Order dated March 18, 2020, the President invoked wartime powers authority provided in the Defense Production Act ("DPA") to direct private industry in the interests of the national defense. See, 50 U.S.C. Ch. 55; The Defense Production Act of 1950: History, Authorities, and Considerations for Congress (CRS Report No. R43767). The definition of "national defense" is expansive and extends to domestic preparedness, response and recovery from natural hazards, terrorist attacks, and other national emergencies. 50 U.S.C. § 4552(14). The President's authority includes the ability to prioritize government contracts over competing customers for goods and services and allocate or control materials, services, and facilities necessary to promote the national defense.
The Department of Justice has mobilized prosecutors and investigators to look for fraud related to the current COVID-19 Coronavirus outbreak. On Monday, March 16, 2020, Attorney General William Barr directed all U.S. Attorneys nationwide to prioritize the detection, investigation, and prosecution of criminal conduct related to the current pandemic.
Notice Regarding COVID-19 Response and Smith Pachter McWhorter Business Operations: In response to the COVID-19 virus, we have moved to remote working. We are committed to continuation of high-level service, mindful of the safety needs of our personnel. Our attorneys and staff have full capacity to work remotely. We will operate with a reduced staff to ensure continuation of essential functions. We will continue to be fully responsive to client needs.
The COVID-19 (Coronavirus disease) outbreak, and the resulting emergency declarations and quarantines in various cities and countries has the potential to negatively impact construction projects. The extent of the potential impacts on construction projects is unknown, but forward-looking contractors are already planning for possible labor shortages, material delays or unavailability, disruption to supply chains, and other impacts. Although contractors’ positions will be dependent on specific contract clauses, it is critical that contractors understand their options and review their contracts and form a plan to deal with possible impacts of the global spread of COVID-19.
Smith Pachter McWhorter PLC is pleased to announce the publication of the 4th Edition of the Virginia Construction Law Deskbook© Virginia CLE Publications. Brian J. Vella, Jennifer A. Mahar, and Edmund M. Amorosi, served as Co-Editors of the 4th Edition.
The Federal Bar Association recently hosted its annual Qui Tam Conference, bringing together panelists and attendees from the government, relators’ bar and the defense bar to analyze developments in the False Claims Act (FCA) enforcement arena. Several distinguished speakers presented at the panel, including Joseph H. (Jody) Hunt, Assistant Attorney General - DOJ Civil Division, and Michael Granston, Deputy Assistant Attorney General – DOJ Civil Division.
Elizabeth N. Jochum will present a webinar entitled, "Bid Protests - Corrective Action," on March 4, 2020, as part of a weekly webinar series hosted by federal procurement consultants Jennifer Schaus & Associates, based in Washington, D.C.
Smith Pachter McWhorter PLC is pleased to announce that Edmund M. Amorosi has been elected as Chair of the Virginia Bar Association’s Section on Construction and Public Contracts Law at the 130th Annual Meeting of the Virginia Bar Association in Williamsburg, Virginia on January 24, 2020.
Armani Vadiee Moderating Panel on Other Transaction Authority Procurements at the ABA Section of Public Contract Law Federal Procurement Institute: "Contracting for Innovation: Leveraging Alternative Procurement Vehicles to Deliver Capability at the Speed of Relevance,” at the ABA Section of Public Contract Law 26th Annual Federal Procurement Institute (FPI) on March 13, 2020, in Annapolis, MD.
John S. Pachter will be a panelist at the Transatlantic Conference on Public Contract Administration to be held on September 20, 2020, at the University of Warsaw. Mr. Pachter’s panel will discuss effective contract dispute resolution systems (including ADR methods) in advancing innovative and environmentally sustainable procurement.
John S. Pachter will present as a panelist at the King’s College, London – George Washington University Law School Annual Transatlantic Symposium on Public Procurement Law on March 16, 2020, at King’s College in London. The conference will focus on “Conflicts in Public Contract Administration: Shared Lessons.” Mr. Pachter will be speaking on a panel entitled, the “U.S. Experience: Linking Contract Award to Performance Through Standardized Clauses and Dispute Resolution — and Fraud.”
Smith Pachter McWhorter attorney Stephen D. Knight will moderate a judges panel on “The Legality of Cost and Audit,” at the Financial Executives International (FEI) Conference on Government Business on February 4, 2020, at the District of Columbia Bar in Washington, D.C.
John S. Pachter will be presenting as a panelist at the ABA Public Contract Law Section - Contract Claims & Disputes Resolution Committee Annual Meeting on the Most Important Government Contract Decisions of the Year on Wednesday, January 8, 2020, in Washington, D.C.
Ashley Barbera Amen and Daniel Ramish will present on the topic of Prime-Subcontractor Disputes: How to Avoid Them, and How to Resolve Them, on Wednesday, December 11, 2019 in Washington, D.C., at a panel hosted by the ABA Section of Public Contract Law, Contract Claims and Dispute Resolution and Subcontracting, Teaming, and Strategic Alliances Committees.
Keeping abreast of developments in the Foreign Corrupt Practices Act (“FCPA”) arena, Smith Pachter McWhorter PLC attorneys have been presenting at and attending ACI’s International Conference on the FCPA, which is took place this week near Washington, D.C. Notably, one of the keynote speakers was Assistant Attorney General Brian Benczkowski, who leads the Department of Justice’s Criminal Division. Benczkowski spoke and then responded to a question-and-answer session. The substance of Benczkowski’s remarks are published on DOJ’s website. Several comments are notable for our clients and potential clients.
Six Smith Pachter McWhorter PLC members were selected for the 2019 Who's Who Legal list in the areas of Construction, Government Contracts, and Mediation. John M. Cook, Val S. McWhorter and Richard F. Smith have been named as Thought Leaders in the 2019 Who's Who Legal Thought Leaders in Construction.
The Small Business Runway Extension Act of 2018 ("Runway Act") extended the period for calculating a business' receipts to determine size status from three years to five years. Although the legislation became law in December 2018, the Small Business Administration ("SBA") did not issue proposed regulations adopting the new standard for notice and comment until June 24, 2019 and has not issued a final rule as of this date. In the interim, SBA maintains that the five-year period established by the Runway Act is not binding until a final rule goes into effect. The inconsistency between the Runway Act and regulations left contractors in doubt as to the proper period for calculating receipts in determining their size status. Some clarity came in a decision last month by SBA's Office of Hearings and Appeals ("OHA") in Cypher Analytics, Inc. dba Crown Point Systems, SBA No. SIZ-6022 (2019).
On November 5, 2019, the Department of Justice (DOJ) announced a new Procurement Collusion Strike Force, to be called “PCSF,” for the purpose of investigating collusion and anti-competitive conduct involving government procurement, grant, and program funding. The PCSF will be focused on antitrust crimes including bid-rigging agreements and other fraudulent conspiracies. We understand that the strike force will train and educate federal, state, and local procurement officials as well as auditors and investigators across the country to recognize anti-competitive or collusive behavior in government funding processes. The officials will also be trained to identify and report potential concerns in the process of awarding contracts and grants. In addition, prosecutors and investigators from the various agencies will work together to investigate and prosecute cases that result from these targeted outreach efforts.
On November 12, 2019, Smith Pachter McWhorter attorneys Jonathan D. Shaffer and Todd M. Garland will present a webinar on organizational conflicts of interest (“OCIs”).
LEGAL ALERT: On September 26, 2019, the U.S. Department of Defense (DOD) published a Final Rule limiting the use of lowest-price technically-acceptable ("LPTA") source selections for DOD procurements.
On October 1, 2019, Thompson Reuters’ West LegalEd Center will broadcast a webinar featuring Smith Pachter McWhorter attorneys Edmund M. Amorosi and Daniel H. Ramish in which they will discuss an important Supreme Court decision affecting government contractors
Smith Pachter McWhorter PLC is proud to announce that Richard F. Smith was named 2020 Arbitration “Lawyer of the Year” by Best Lawyers® in Washington, D.C. Mr. Smith was also selected for recognition in The Best Lawyers in America© 2020 Edition for his work in Arbitration, Mediation and Construction Law.
Smith Pachter McWhorter PLC is proud to announce that Val S. McWhorter was named 2020 Mediation “Lawyer of the Year” by Best Lawyers® in Washington, D.C. Mr. McWhorter was also selected for recognition in The Best Lawyers in America© 2020 Edition for his work in Arbitration, Mediation and Construction Law.
On October 22-23, 2019, Smith Pachter McWhorter attorney Edmund M. Amorosi will teach a course entitled, "Preparing and Defending Government Contract Claims" hosted by Federal Publications Seminars, Inc. in the Washington, D.C. area.
On August 19, 2019, the U.S. Bureau of Industry and Security (BIS) issued a Final Rule (the “August TGL”) extending the Temporary General License (TGL) it previously granted to Huawei Technologies Co., Ltd. (Huawei) and 68 of its affiliates in May 2019 (the “May TGL”). Besides extending the TGL by another ninety (90) days up to November 18, 2019, the BIS added numerous changes and clarifications that in effect further narrowed the already narrow scope of permissible transactions. Furthermore, the BIS changed the certification requirements by requiring Huawei to provide certification statements vouching and demonstrating compliance with the TGL. The burden to prepare those statements had previously been on the exporters/re-exporters/transferors. Finally, the BIS concurrently issued another final rule adding an additional forty-six (46) Huawei affiliates to the Entity List, making the total number of listed Huawei entities 115.
Smith Pachter McWhorter PLC is pleased to announce that seven attorneys have been selected for inclusion in The Best Lawyers in America© 2020 Edition. Lawyers are selected for inclusion based on an exhaustive peer-review process. In addition, Val S. McWhorter was named 2020 Mediation “Lawyer of the Year” by Best Lawyers® in Washington, D.C.
On September 10, 2019, Smith Pachter McWhorter attorney Jonathan Shaffer will present a panel webinar on federal small business contracting issues at the District of Columbia Bar.
NEW ATTORNEY ANNOUNCEMENT: Smith Pachter McWhorter PLC is pleased to announce that experienced government contracts attorney Elizabeth N. Jochum has joined the firm as a partner. Ms. Jochum augments the firm’s existing capabilities, adding extensive experience in bid protests and other government contracts litigation, as well as government contracts-related investigations and white collar defense.
Smith Pachter McWhorter is also pleased to announce the addition of two associate attorneys: Haris Hadzimuratovic and Jacob Bolinger.
Chambers USA: America's Leading Lawyers for Business recognizes 7 Smith Pachter McWhorter PLC lawyers and lists practice area groups as leaders in their field in its 2019 edition.
In 1974, the D.C. Circuit adopted a standard requiring a party to show that "substantial competitive harm" would result if records a party submitted to the government were released to the public under the Freedom of Information Act (FOIA)." In an important case decided on June 24, 2019, the U.S. Supreme Court, by a 6-3 vote, discarded the substantial competitive harm test, holding that "where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is 'confidential' within Exemption 4's meaning."
White Collar Partner Iris Bennett is scheduled to speak at the National Association of Criminal Defense Lawyers 2019 West Coast White Collar Conference on June 20, 2019, in Santa Monica, CA.
The National Contract Management Association (NCMA) DC Chapter recently named Smith Pachter McWhorter attorney Dan Ramish first place winner of its 2019 Outstanding Academic Achievement Award (OAAA).
On May 16, 2019, the U.S. Bureau of Industry and Security (BIS) issued a final rule amending the Export Administration Regulations (EAR) to add Huawei Technologies Co., Ltd. (Huawei) and its sixty-eight non-U.S. affiliates to the Entity List. Five days later, on May 20, 2019, BIS issued another final rule granting a 90-day Temporary General License (May 20, 2019 through August 19, 2019) for four categories of EAR-regulated transactions involving existing and fully operational networks/systems, handsets made available to the public on or before May 16, 2019, and 5G standardization. China countered by furious rhetoric and threats of counter measures including an “Unreliable Entity List” targeting persons and companies stopping or disrupting supply to Chinese companies like Huawei “for non-commercial reasons.” This article discusses the risks U.S. exporters may face in the context of the regulatory clash between the two economic giants and some of the coping strategies in light of regulatory uncertainties affecting the feasibility of ongoing business relationships with Huawei.
On May 30, 2019, President Trump announced that “the United States will impose a 5% Tariff on all goods…from Mexico...” Certain FAR clauses permit price adjustments for new duties imposed after award (e.g., FAR 52.229-3) or if specified contingencies occur (see FAR 16.203-1(a)).
Construction Executive magazine, the official publication of the Associated Builders & Contractors (ABC), has ranked Smith Pachter McWhorter PLC in the Top 50 Construction Law Firms rankings for 2019, recognizing the firm as 26th nationwide by number of construction attorneys.
On May 14, 2019, the Defense Contract Audit Agency (DCAA) issued Memorandum for Regional Directors (MRD) No. 19-PAC-002(R), revising DCAA’s “guidance” on identifying expressly unallowable costs. The revised guidance attempts to correct MRD Nos. 14-PAC-021(R) and 14-PAC-022(R) – MRDs that were inherently flawed as highlighted by recent Armed Services Board of Contract Appeals (ASBCA) decisions. The MRD includes an updated listing of Federal Acquisition Regulation (FAR) 31 and Defense Federal Acquisition Regulation Supplement (DFARS) 231 cost principles that DCAA continues to assert, incorrectly in many instances, meet the definition of expressly unallowable costs that are subject to penalties. Contractors should review DCAA’s updated list, as the release of the revised MRD may indicate that DCAA intends to refocus its audit efforts in the penalties arena.
The U.S. Supreme Court issued a unanimous decision in Cochise Consultancy, Inc., et al. v. United States ex rel. Hunt, addressing conflicting decisions on the False Claims Act statute of limitations and expanding the time allowed for private party relators to file whistleblower lawsuits. The decision increases the risk that government contractors may be subject to qui tam claims brought as many as ten years after the alleged violation, including by relators who may have chosen not to act on their own knowledge, provided that the relator can prove that government agent had or should have had knowledge of the alleged false claim.
Smith Pachter McWhorter PLC is pleased to announce that experienced corporate and government investigation, compliance, White Collar defense and commercial dispute attorney Vincent W. Li has joined the firm as a partner. Mr. Li most recently served as Counsel for Special Investigation and Compliance for General Motors, covering the company’s China and International Regions. Prior to his in-house service at GM, Mr. Li practiced law at Jones Day.
On May 7, 2019, the Civil Division of the Department of Justice (“DOJ”) released guidance to its litigators related to the False Claims Act (“FCA”). This guidance establishes DOJ policy regarding credit to defendants cooperating during an FCA investigation and is included in the Justice Manual at Section 4-4.112. The new policy sets forth the factors long relied on by DOJ, describing voluntary disclosure, cooperation with a government investigation, and remedial action as the primary means through which an FCA defendant can obtain credit. For government contractors that find themselves potentially subject to FCA liability – whether identified through an internal investigation or receipt of a subpoena – the guidance provides a useful framework to think through potential responses.
On Tuesday, May 28, 2019, Smith Pachter McWhorter PLC Member Armani Vadiee, Esq. and Todd M. Garland, Esq. will present at the National Contract Management Association, Washington D.C. chapter event regarding price/cost realism evaluations and preparing successful proposals.
Smith Pachter McWhorter PLC congratulates eight attorneys who have been selected for inclusion in the 2019 Virginia Super Lawyers® and Rising Stars list for their achievements and expertise in their areas of practice.
LEGAL DEVELOPMENTS ALERT: John S. Pachter and Todd M. Garland authored an amici curiae brief on behalf of the Professional Services Council and National Defense Industrial Association, urging the Armed Services Board of Contract Appeals to reconsider its decision in Kellogg Brown & Root Services, Inc., ASBCA No. 57530, 19-1 BCA ¶ 37,205.
On March 25, 2019, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released its 2019 Corporate Scheduling Announcements List (CSAL), announcing planned audits and compliance checks of 3,500 contractor facilities
In the Law360 Expert Analysis article, High Court May Defend Gov't Contractors Against FOIA," Edmund M. Amorosi previews a U.S. Supreme Court case involving FOIA Exemption for Commercial and Proprietary Information.
LEGAL DEVELOPMENTS ALERT: U.S. Attorney Jessie Liu Appointed Chairwoman of the Attorney General's Advisory Committee
Smith Pachter McWhorter's Daniel Ramish recently tied for first place in the American Bar Association's 2018 Public Contract Law Journal (PCLJ) Writing Competition, Division II (LLM and Young Lawyers).
Assistant Attorney General Brian A. Benczkowski recently emphasized DOJ’s plans to continue working with corporations to combat corporate misconduct, to regularly update DOJ policies to ensure they are clear, comprehensive, and up to date, to educate prosecutors on how to evaluate corporate compliance programs to ensure consistency across the country, and to provide the corporate community more transparency into DOJ’s decision-making.
On May 7, 2019 Smith Pachter McWhorter attorney Jonathan Shaffer will present a panel/webinar on federal small business contracting issues at the District of Columbia Bar.
The Department of Defense (DOD) issued four Defense Procurement and Acquisition Policy (DPAP) memoranda on cybersecurity compliance in less than three months, signaling DOD’s increased interest in validating contractor compliance with the Defense Federal Acquisition Regulation Supplement (DFARS) cybersecurity rules. Many DOD contractors are subject to the cybersecurity requirements pursuant to the contract clause at DFARS 252.204-7012, Safeguarding Covered Defense Information & Cyber Incident Reporting.
On February 7, 2019, the U.S. Government Accountability Office (GAO) issued a Report (GAO-19-212) to Congressional Committees on the Department of Defense’s (DOD) effectiveness in monitoring and managing contractor business system evaluations.
On January 31, 2019, President Trump signed an Executive Order titled "Strengthening Buy- American Preferences for Infrastructure Projects" (Executive Order 13858) (the "January 2019 EO"). This is his second Executive Order emphasizing the importance of applying and enforcing domestic sourcing preferences and requirements, including the Buy American Act (41 U.S.C. §§ 8301–8305) and other statutes and regulations.
Smith Pachter McWhorter PLC is pleased to announce that experienced white collar defense and government investigations attorney Michael K. Lowman has joined the firm as a partner in our White Collar defense, investigations and compliance counseling practice group. Mr. Lowman augments the firm’s existing capabilities, adding deep experience in SEC investigations, securities litigation and counseling, and complex litigation.
On December 17, 2018, President Trump signed the Small Business Runway Act of 2018 (“SBRA”), which revises the formula for calculating revenues to determine eligibility for small business set-asides to use a five-year average instead of a three-year average.
Assistant Attorney General Brian Benczkowski provided new guidance regarding how DOJ’s Criminal Division will evaluate compliance programs and the selection of corporate monitors under deferred prosecution and non-prosecution agreements (“DPAs” and “NPAs”, respectively). A corporation under DOJ investigation may now be able to avoid the expense and burden of a monitorship if it can credibly show that changes to its compliance program and/or management team would prevent prior misconduct from happening again.
On Thursday, September 27, Brazil’s state-owned-and-controlled oil and gas company Petrobras and U.S. authorities announced a settlement to resolve U.S. government investigations into violations of the Foreign Corrupt Practices Act.
Smith Pachter McWhorter Member Iris Bennett to speak on CLE panel on Ethical Issues in Internal Investigations and in Responding to Government Investigations at the 2018 Women, Influence & Power in Law conference, held in Washington, D.C.
Among other interpretations of the FCPA that DOJ has maintained over the years, one of the most aggressive has been DOJ’s view of its power to use the doctrine of conspiracy to prosecute non-U.S. persons in situations where DOJ could not charge that person with a substantive violation of the statute. Specifically, as expressed in DOJ’s FCPA Enforcement Guide and its enforcement practices, the DOJ’s view has been that it may prosecute non-U.S. individuals or entities who conspire to violate the FCPA, even if the non-U.S. party itself would not fall under the FCPA’s jurisdiction. This theory recently failed a direct challenge in federal court.
Seventh Circuit dismisses False Claims Act suit arising from alleged non-compliance with the Trade Agreements Act
Smith Pachter McWhorter PLC is pleased to announce that six attorneys have been selected for inclusion in The Best Lawyers in America© 2019 Edition. Lawyers are selected for inclusion based on an exhaustive peer-review process.
The recent ASBCA decision in CiyaSoft highlights the government’s responsibility to inquire about licensing terms and use reasonable measures to protect commercial software. However, it is still best practice to avoid such disputes by obtaining express agreement to licensing terms.
John Pachter quoted in article in Bloomberg Federal Contracts Report about U.S. Supreme Court nominee Brett Kavanaugh.
On March 31, 2018, the Defense Contract Audit Agency ("DCAA") issued its Fiscal Year 2017 Annual Report to Congress, made public on May 21, 2018. The FY 2017 Report sets forth DCAA’s audit performance, recommendations to improve the audit process, and industry outreach activities.
On May 30, 2018, the Department of Transportation’s Federal Transit Administration published a final rule creating new Private Investment Project Procedures (“PIPP”). The final rule, effective June 29, 2018, allows recipients of federal funding for public transportation capital projects to request a waiver or modification to FTA regulations.
On April 20, 2018, the Small Business Administration published a notice and request for comments on the new Subcontractor Past Performance Pilot Program.
SPM's Stephen D. Knight will present at the Association of Corporate Counsel NCR Government Contractors Forum: A Roadmap for Managing DCAA Audits.
Chambers USA: America’s Leading Lawyers for Business recognizes 8 Smith Pachter McWhorter PLC lawyers and lists practice area groups as leaders in their field in its 2018 edition.
SPM is pleased to announce that experienced white collar defense and government investigations attorney Cormac T. Connor has joined the firm as a partner.
The Civilian Board of Contract Appeals' recent decision in Mayberry Enterprises, LLC is a reminder that separate claims under the certification threshold may be presented to the government together in a single document without aggregating the claims and requiring certification.
SPM's Erica J. Geibel wins the ABA Forum on Construction Law Trial Academy Writing Competition and SPM's Todd M. Garland selected as a finalist.
The National Institute of Standards and Technology (“NIST”) released a new version of the Framework for Improving Critical Infrastructure Cybersecurity with important updates.
SPM's Iris Bennett will speak at a DC Bar panel on World Bank sanctions, monitoring, and compliance mentoring on May 9, 2018.
Jonathan D. Shaffer and Todd M. Garland will teach a course at the DC Bar entitled, "Government Contracts Basics: Bid Protests" on May 16, 2018, that addresses the procedural and substantive rules and practices governing bid protests.
Smith Pachter McWhorter PLC congratulates six attorneys who have been selected for inclusion in the 2018 Virginia Super Lawyers® and Rising Stars list for their achievements and expertise in their areas of practice.
DPAP issued a Class Deviation affecting the Micro-Purchase and Simplified Acquisition Thresholds, as well as associated Special Emergency Procurement Authority, for the Department of Defense.
SPM's Richard C. Johnson and Ashley N. Barbera Amen discuss the Federal Circuit's recent decision in Securiforce in the March 13, 2018 Bloomberg BNA Federal Contracts Report.
SPM congratulates John Marshall Cook on being inducted as a Fellow of the American College of Construction Lawyers.
Client Alert: The GSA published a final rule to rectify inconsistencies and ambiguities when contractors use Commercial Supplier Agreements.
Smith Pachter McWhorter attorneys Daniel Rounds and Ashley Amen presented a panel on Government Contract Basics: Claims and Disputes to the DC Bar on February 21, 2019.
Smith Pachter McWhorter has published its FCPA Compliance and Enforcement Trends Annual Guide: January 2018.
Department of Defense issues Final Rule on Commercial Item determinations and price reasonableness.
GSA publishes a new rule for off-schedule acquisitions under existing Federal Supply Schedule contracts.
GSA publishes plan to implement cybersecurity regulations governing information system security and cyber incident reporting.
Each year, Congress specifies the annual budget, establishes funding levels, and sets spending policies for the Department of Defense (DoD) though the National Defense Authorization Act (NDAA).
Smith Pachter McWhorter attorney quoted by Bloomberg Law on a legal case involving 3D printing and its petition for certiorari to the Supreme Court.
Right of First Refusal: Smith Pachter McWhorter Successfully Represents Contractor in Breach of Contract Claim.
On November 28, 2017, the National Institute of Standards and Technology (“NIST”) released a draft special publication on “Assessing Security Requirements for Controlled Unclassified Information.”
John S. Pachter represented five individuals faced three-year exclusions from U.S. government contracting with their names published in the System for Award Management.
Iris E. Bennett, with co-panelists, will lead a discussion on the Foreign Corrupt Practices Act at the 2017 Women, Influence & Power in Law conference, held in Washington, D.C.
Smith Pachter McWhorter PLC is proud to announce that Richard F. Smith was named 2018 Mediation “Lawyer of the Year” by Best Lawyers® in Washington, D.C. Mr. Smith was also selected for recognition in The Best Lawyers in America© 2018 Edition for his work in Arbitration, Mediation and Construction Law.
Smith Pachter McWhorter PLC is pleased to announce that six attorneys have been selected for inclusion in The Best Lawyers in America© 2018 Edition. Lawyers are selected for inclusion based on an exhaustive peer-review process.