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)).
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.
NEW ATTORNEY ANNOUNCMENT: Vincent Li has joined Smith Pachter McWhorter’s White Collar Practice Group
SPM EVENT: On Tuesday, May 28, 2019 SPM Member Armani Vadiee and Todd M. Garland will present at the National Contract Management Association, Washington DC chapter event regarding price/cost realism evaluations and preparing successful proposals.
LEGAL DEVELOPMENTS ALERT: OFCCP Announces 2019 Contractor Compliance Audits
LEGAL DEVELOPMENTS ALERT: Assistant Attorney General Brian A. Benczkowski Promotes Transparency with the Business Community
LEGAL DEVELOPMENTS ALERT: Presidential Executive Order on Strengthening Buy American Preferences for Infrastructure Projects
LEGAL DEVELOPMENTS ALERT: New Law Revises Small Business Size Formula
LEGAL DEVELOPMENTS ALERT: DOJ Provides Guidance on Corporate Compliance Programs and Monitorships
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
SPM Member Iris Bennett to be 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.
Second Circuit Rebuffs DOJ’s Long-Held Theory on the Reach of Conspiracy Law to Prosecute Non-U.S. Persons Under the FCPA
Seventh Circuit dismisses False Claims Act suit arising from alleged non-compliance with the Trade Agreements Act
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.
CLIENT ALERT: 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.
CLIENT ALERT: 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.
CLIENT ALERT: In April, 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.
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.
SPM attorneys will teach a course at the DC Bar that addresses the procedural and substantive rules and practices governing bid protests.
Client Alert: 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.
Client Alert: The GSA published a final rule to rectify inconsistencies and ambiguities when contractors use Commercial Supplier Agreements.
SPM's FCPA Compliance and Enforcement Trends Annual Guide: January 2018.
Client Alert: 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.
Law 360 has featured Kelsey Wilbanks’ expert analysis on Defense Distributed, a Fifth Circuit decision discussing 3D Printing and ITAR regulations.
Client Alert: Fiscal Year 2018 NDAA Acquisition Reform Highlights. 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 Kelsey Wilbanks was asked by Bloomberg Law to comment 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.
NIST Publishes Guidelines for CUI Cybersecurity Compliance - 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.”
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.
Iris E. Bennett will serve as Chair of the Public International and Criminal Law Subcommittee for the District of Columbia Bar, International Law Community, for 2017-2018.
Federal Court Overturns 15-Year Debarment Arising from Affiliate’s Alleged Misconduct. The United States District Court for the District of Columbia recently overturned the Defense Logistics Agency’s (the “Agency’s”) 15-year debarment from federal contracting of a Houston-based food exporter and its affiliates.
Dorothy E. Terrell named among Virginia’s Best Women Lawyers in a list adapted by Virginia Living magazine from The Best Lawyers in America 2017.
Supreme Court Limits Powerful SEC Enforcement Tool, Holding that Disgorgement is Subject to Five-Year Statute of Limitations
Chambers 2017 has ranked Smith Pachter McWhorter PLC amongst the Top Tiers Nationwide for Government Contracts and in Virginia for Construction law.
SPM's White Collar practice group conduct anti-corruption compliance workshops in Sao Paulo, Brazil and Rio de Janeiro, Brazil, May 23-25, 2017,
NIST Proposes Updates to Cybersecurity Framework - On May 16, 2017, the National Institute of Standards and Technology (NIST) held a workshop discussing the proposed updates and feedback for version 1.1 of the federal Cybersecurity Framework – a set of industry standards and best practices developed to protect complex critical infrastructure from cybersecurity threats and infiltration.
Super Lawyers honors Smith Pachter McWhorter attorneys in the 2017 listings for their achievements and expertise in their respective areas of practice. The attorneys selected include:
Trump Signs Executive Order Amending “Buy American” and “Hire American” Rules Applicable To Federal Procurements
Cost Allowability - Join highly experienced faculty for this practical and informative two-day program focusing on cost allowability, allocability, and reasonableness under the Federal Acquisition Regulation.
President Trump Expected To Sign Executive Order Amending “Buy American” and “Hire American” Rules Applicable To Federal Procurements
Smith Pachter McWhorter is proud to participate in the 2017 Legal Food Frenzy, a food and fund drive sponsored by the Attorney General of Virginia, the Young Lawyers Division of The Virginia Bar Association, and the Federation of Virginia Food Banks.
Trump Rescinds Controversial “Fair Pay Safe Workplaces” Regulations -
On March 27, 2017, President Donald Trump signed a Congressional Review Act resolution permanently rescinding the “Fair Pay and Safe Workplaces” regulations, dubbed the “blacklisting rule” by opponents..
The Government Audit Process: Limitations and Considerations presented by the Government Contracts Section of the Fairfax Bar Association
On behalf of Bechtel National, Inc., Smith Pachter McWhorter, prevailed in an $80 million dollar lawsuit brought by Parsons Government Services
SPM member Jonathan Shaffer has been named to participate on Law360's 2017 Government Contracts Editorial Advisory Board.
Government Contractor Employment Law Symposium March 16, 2017. SPM Attorneys John Cook, Erica Geibel, Armani Vadiee, and Owen Walker and Will be Guest Speakers at Jackson Lewis Government Contractor Employment Law Symposium
Smith Pachter McWhorter hosts BCABA members for a conversation addressing current issues in E-Discovery at the Boards, including preservation responsibilities and the proportionality of discovery requests.
New Final Rule Requires Compliance of Contractors Handling “Controlled Unclassified Information.”
DFARS Update Provides Contractor Compliance Extension to December 31, 2017, but Reporting Obligations Persist Until Then.
New FAR Final Rule Requires Compliance of Contractors Handling “Federal Contract Information.”
Texas judge issues preliminary injunction on implementation of “Fair Pay and Safe Workplaces” Regulations.
Government Contractors Forum: Safe Passage or Stormy Seas - Managing Risk in Prime-Subcontract Disputes Involving Pass-Through Claims
Texas Lawsuit Challenges Constitutionality of “Fair Pay and Safe Workplaces” Regulations.
Iris E. Bennett, panellist on the Foreign Corrupt Practices Act at the 2016 Women, Influence & Power in Law conference, held in Washington, D.C.
Course: Price and Cost Realism in Government Contracting - Instructors Armani Vadiee of Smith Pachter McWhorter and Robert Craig of BDO.
FAR Cybersecurity Final Rule - On May 16, 2016 DoD, GSA, and NASA issued a long anticipated Final Rule on cybersecurity, by adding a new subpart 4.19 and contract clause 52.204-21, "Basic Safegaurding of Covered Contractor Information Systems".
Gregory A. Smith was recently appointed to be a Lecturer, and adjunct member of the faculty at UVA.
SPM Presentation - Top 10 Things You Should Know About Government Contracts. The federal government is unlike any other customer that a company can have. Not only must contracts with the federal government contain specific clauses promulgated as regulations, but those clauses provide the federal government with rights that would be labeled “breach” in commercial contracts.
SPM Presentation - Forming Government Contracts: Understanding the Players and the Process. Smith Pachter McWhorter's Jonathan D. Shaffer presents this new class which focuses on the statutes and regulations governing the government’s ability to contract; the authority of the contracting officer; the IFB (invitation for bid) and RFP (request for proposal) process; organizational conflicts of interest; role of bid protests; and responsibilities of the contractor.
Jonathan Shaffer named to Law 360's Government Contracts Editorial Advisory Board.
Client Alert: New DoD DCMA Instructions on Counterfeit Part Mitigation Procedure
DFARS Final Rule: Network Penetration Reporting and Contracting for Cloud Services
Client Alert: FAR acquisition-related thresholds have been increased as of July 2, 2015.
Proposed FAR Amendments Aim to Increase Small Business Opportunities
Richard C. Johnson and Armani Vadiee will be presenters on a webinar entitled, “Afghan Taxes, Business Registration, and Cost Recovery – A Step-by-Step Guide” which will take place on June 3 at 1:00 p.m. EDT.
Remarks of John S. Pachter at the Federal Circuit Bar Association Government Contracting Summit; Panel Topic: Implied Duty of Good Faith and Fair Dealing
Jonathan Shaffer named to Law 360's Government Contracts Editorial Advisory Board.
FY 2014: A Positive Year for GAO Bid Protests at Smith Pachter McWhorter PLC
Federal Circuit Affirms Aircraft Contractor's Compliance With Cost Accounting Standard Sikorsky Aircraft Corp. v. United States, Fed. Cir., No. 2013-5096, -5099, 12/10/14 - John S. Pachter interviewed by BNA for comment.
WMACCA Government Contractors Forum: Independent Monitors - How To Avoid Them and How To Live With Them - Presented by Iris Bennett and Sean J. Hartigan of Smith Pachter McWhorter and an in-house panelist. Moderated by John Pachter of Smith Pachter McWhorter.
Virginia Governor Names Val McWhorter to Virginia Port Authority Board of Commissioners.
Jonathan D. Shaffer will speak on Hot Topics in State and Local Procurement: Bid Protests at the April 24-25, 2014 American Bar Association State and Local Procurement Symposium in Asheville, North Carolina.
The Government Accountability Office has issued its Bid Protest Annual Report to Congress for Fiscal Year 2013
Smith Pachter McWhorter Announces New Partners in White Collar Practice - Joseph P. Covington has joined the firm as a partner...
Stephen D. Knight will present the opening remarks at ACI’s 5th Annual Advanced Forum on DCAA Audits on November 5-6, 2013 at the Westin Arlington Gateway in Arlington, VA.
WMACCA Government Contractors Forum Presentation: Executives in DCAA Crosshairs - New Limits on Executive Compensation - September 18, 2013
Best Lawyers in America 2013 Edition Recognizes Smith Pachter McWhorter Attorneys for Expertise in Construction Law and Litigation, Arbitration and Mediation
The American Bar Associations's Section of Public Contract Law 2013 Annual Meeting wil be held in San Francisco, CA, August 9-12.
Chambers 2013 has ranked Smith Pachter McWhorter PLC amongst the Top Tiers for Government Contracts and Construction law. Chambers USA’s identifies America’s leading lawyers as the best in their fields by their peers and clients.
Stephen D. Knight will be speaking at the U.S. Defence Contracting and FAR Compliance in Europe Conference in London, sponsored by ACI, June 25-28.
The Associated General Contractors of America (AGC) has re-appointed Smith Pachter McWhorter PLC Member Edmund M. Amorosi to the National AGC Committee on International Construction.
Super Lawyers 2013 honors Smith Pachter McWhorter PLC attorneys for their achievements and expertise in their areas of practice
Armani Vadiee will co-teach a course entitled Price And Cost Realism In Government Contracting, June 13-14, 2013 at the Waterview Conference Center at CEB in Arlington, VA.
John S. Pachter Featured in The Procurement Lawyer. The Winter 2013 issue of the Procurement Lawyer published by the ABA Section of Public Contract Law features a question and answer discussion with John S. Pachter, first recipient of the Allan J. Joseph Award. The award recognizes “exceptional effort and accomplishments” as well as “extraordinary contributions” to the Section of Public Contract Law. John offers his reflections on activities and personalities of the Section of Public Contract Law during the past 46 years. The full article is available here.
Richard F. Smith and Brian J. Vella will present at the upcoming Virginia Chapter of the Architectural Woodwork Institute (AWI) on March 20th in Charlottesville, VA.
The presentation will discusss construction contracts and Mr. Vella will cover building a contract “check-list” and Mr. Smith will discuss arbitration and mediation as an option for the woodworker.
The meeting announcement can be found here.
The Government Accountability Office issues report discussing bid protest statistics for fiscal years 2008-2012 and highlighting the significant decsions from 2012. The full report can be found here.
Edmund M. Amorosi Appointed to the Council of the Virginia Bar Association’s Section on Construction and Public Contracts Law
At the 123rd Annual Meeting of the Virginia Bar Association on January 24-26, 2013 in Williamsburg, Virginia, Edmund M. Amorosi was appointed as a member of the Council of the VBA’s Section on Construction and Public Contracts Law. The VBA describes the role of the Construction and Public Contracts Law Section as “monitoring, initiating and promoting legislation that affects the construction industry and matters of public contracts law” before the Virginia General Assembly. In addition to legislative initiatives, the Section presents an annual continuing legal education seminar, usually held each winter at the Annual Meeting of the VBA in Williamsburg. The Section typically presents an educational program at the VBA’s Summer Meeting. Richard F. Smith, Of Counsel, preceded Mr. Amorosi on the Council.
Developments in Arbitration Law Presented by Edmund M. Amorosi at the Virginia Bar Association’s 123rd Winter Meeting.
The Comptroller General issues annual report to Congress discussing Bid Protest Statistics for Fiscal Years 2008-2012 and instance in which a federal agency did not fully implement a recommendation made by GAO in connection with a bid protest. The full report can be found here.
Four Smith Pachter McWhorter members nominated and selected for the 2012 Who's Who Legal list. Nominees are selected based upon comprehensive, independent survey work with both general counsel and construction and government contract lawyers in private practice worldwide. This year, Val McWhorter and Richard F. Smith were selected for the Construction catagory and Mark Hanson and John Pachter were selected for the Public Procurement (government contracts) category. For more info click here.
Smith Pachter McWhorter founding member John S. Pachter was honored by the American Bar Association Section of Public Contract Law at the ABA Annual Meeting in Chicago as the first recipient of the Section’s Allan J. Joseph Award for Excellence in Leadership.
Dorothy E. Terrell, Smith Pachter McWhorter PLC, Of Counsel, will be a speaker at the upcoming Mid-Winter Meeting of the ABA Forum on the Construction Industry held January 31-February 1, 2013 at the Naples Grande in Naples, FL. The topic will be a review of the latest legal developments involving delay damages issues.
The Associated General Contractors of America (AGC), the leading association for the construction industry, has re-appointed Smith Pachter McWhorter PLC Member Edmund M. Amorosi to the National AGC Committee on International Construction. The mission of the Committee is to improve the competitive position of United States contractors working abroad; secure a fair share of the overseas construction market for U.S. contractors who bid to multilateral financing agencies, such as the World Bank, Inter- American Development Bank, and Asian Development Bank; cooperate and meet with international contractor and engineer associations and regional development banks; and, promote or oppose legislation affecting overseas construction.
Stephen D. Knight, Smith Pachter McWhorter PLC, Member, will teach a course titled “The Masters Institute in Government Contract Costs.” The course is a specially tailored, advanced program devoted exclusively to the unique rules, problems, practices, and demands of Government Contract Cost matters and designed for experienced procurement professionals.
Gregory A. Smith, Smith Pachter McWhorter PLC, Member, received the U.S. Court of Federal Claims James Madison Award at the October 2011 Judicial Conference in Berkeley, CA for his “distinguished service to the Court” and in recognition of the two terms he served as Chair of the Advisory Council.
Smith Pachter McWhorter PLC recently celebrated its 25th anniversary at a formal dinner held at the Willard Hotel in Washington, DC.
Smith Pachter McWhorter PLC is honored to have two of its Members named in Washingtonian magazine's 2011 "Top Lawyers" list.
Smith Pachter McWhorter PLC is pleased to welcome Gregory A. Smith as a member of the Firm.
Dorothy E. Terrell, Edmund M. Amorosi, and John M. Cook, all members of the firm, were recognized in the August 2010 edition of the Washington Contractor, the official publication of the Associated General Contractors of Metropolitan Washington DC, for their work as instructors for the PMDP – Project Manager Development Program.
John S. Pachter recently published an article entitled "The Incredible Shrinking Contracting Officer" in the Summer 2010 edition of the Public Contract Law Journal.
On June 21, 2010, Edmund M. Amorosi, a member of the firm, presented two programs at the "Industry Summit on DOD Contracting", which was sponsored by the American Conference Institute.
John Marshall Cook was interviewed by Ted Garrison of the New Construction Strategies (www.ncs30.com) on the subject of Risk Protection through Better Contracting.
John S. Pachter published an article entitled "Personal Conflicts of Interest: A New Area for Regulation" in the February 9, 2010 edition of the Federal Contracts Report.
On January 22, 2010, Dorothy E. Terrell presented a program in Seattle at the 2010 Annual Convention of AGC of Washington.