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Category: Client Advisories

LEGAL DEVELOPMENTS ALERT: DOJ and OFAC Sanctions Enforcement Actions Highlight New Sanctions Risks for Non-U.S. Companies Based on Use of U.S. Financial System

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.

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LEGAL DEVELOPMENTS ALERT: Takeaways from DOJ and SEC’s Recent Updates to the FCPA Resource Guide

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. 

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LEGAL DEVELOPMENTS ALERT: U.S. DOJ Announced Further Updates of Its Guidance for Evaluation of Corporate Compliance Programs

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. 

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GIR Analysis: Crisis-Driven Innovation in Brazilian Internal Investigation Practice

In the Global Investigations Review (GIR) article, "Crisis-driven innovation in Brazilian internal investigation practice," Francisco Petros and Thaís Folgosi Françoso at FF Advogados in Brazil and Iris Bennett and Carlos André Galante Grover at Smith Pachter McWhorter in the US examine innovations in internal investigation practices in Brazil spurred by the Covid-19 pandemic, the benefits of change, and provide tips to manage enforcement authorities' expectations. 

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New Executive Order Seeks to Secure Nation’s Power Grid from Foreign Cyber Attacks

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. 

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Recent CBCA Decision Highlights Hurdles Faced by Construction Contractors Seeking Compensation for COVID-19 Impacts

A recent and curiously-timed decision from the Civilian Board of Contract Appeals ("CBCA") demonstrates the significant challenges a contractor faces when trying to recover increased costs incurred as a result of an epidemic.  This article summarizes the decision and outlines the ways a contractor may distinguish this decision from the current COVID-19 epidemic as part of its efforts to seek compensation for the project impacts of the virus.
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Updated COVID-19 Handbook for Government Contractors During the Coronavirus Pandemic

UPDATED COVID-19 Handbook for Government Contractors: The COVID-19 pandemic has presented unique challenges for companies performing federal government contracts. The operating landscape is constantly shifting and the communication and directives from federal agencies and state and local governments are often vague and contradictory.

In response to a flood of COVID-19 communication from federal agencies and state and local governments, including advisories, memoranda, and alerts, Smith Pachter McWhorter PLC has issued an updated handbook for government contractors covering topics in a Q&A format to address pressing issues and provide answers to inquiries our attorney response team is receiving from the industry. 

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COVID-19 Client Alert: Preparing for Increased CARES Act Oversight

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. 

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Fast-Track Emergency Procurement Methods Available to Agencies and Contractors to Support Response to COVID-19 Pandemic

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.

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COVID-19 Client Alert: CARES Act and Implications for Government Contractors

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.

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COVID-19 Q&A: A Handbook for Government Contractors During the Coronavirus Pandemic

COVID-19 Government Contractor Handbook. SPM has issued a handbook for government contractors covering topics in a Q&A format to provide simple answers addressing some of the pressing issues and questions we are seeing from the industry. Topics include: recent federal agency guidance, the Defense Production Act and DPAS rated orders, contractor immunity and government indemnity, work site access, force majeure and excusable delays and changes, supplier management, suspension of work and stop work orders, employee notification under the WARN Act, communication with the customer, and maintaining documentation. 

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OMB Guidance Urges Flexibility in Management of Government Contracts During Pandemic - Practical Tips for Contractors

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).

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COVID-19 Client Alert: Defense Production Act and Implications for Government Contractors

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. 

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DOJ Prioritizes Fraud Investigations Related to Coronavirus Outbreak and Response

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.

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Know Your Rights: Potential Impacts of COVID-19 on Construction Projects

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. 

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FCPA and Corporate Compliance Best Practices: Frequently Asked Questions Primer

Smith Pachter McWhorter PLC presents FCPA compliance resources in multiple languages including FAQs regarding FCPA compliance available in English, Mandarin, Portuguese, and Spanish. 

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Federal Bar Association Qui Tam Conference Highlights Developments in False Claims Act Enforcement

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. 

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Smith Pachter McWhorter False Claims Act Practice Guide: 2020

Smith Pachter McWhorter PLC is pleased to present the 2020 edition of its False Claims Act Practice Guide. This Guide is intended to serve as a practical reference tool, providing general guidance about False Claims Act (“FCA”) legal standards, required elements of proof, common issues that give rise to FCA liability, and recent legal and enforcement developments.

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Update Regarding DOJ’s FCPA Priorities

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.

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LEGAL DEVELOPMENTS ALERT: SBA OHA Holds Three-Year Period for Calculating Receipts Continues to Apply

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).

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LEGAL DEVELOPMENTS ALERT: DOJ Launches Procurement Collusion Strike Force (“PCSF”) to Investigate and Prosecute Antitrust Crimes in Government Contracting

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.

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LEGAL DEVELOPMENTS ALERT: DOD Releases Rule Significantly Limiting LPTA Procurements

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.  

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LEGAL DEVELOPMENTS ALERT: Temporary General License for Export to Huawei Extended, with More Restrictions Introduced

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.

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Chambers USA 2019 Recognizes 7 Smith Pachter McWhorter Lawyers and Lists Three Practice Groups as Leaders in Their Field

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.

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LEGAL DEVELOPMENTS ALERT: U.S. Supreme Court Decision Enhances Protections for Confidential and Proprietary Information under FOIA

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."  

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LEGAL DEVELOPMENTS ALERT: U.S. Companies Caught in Limbo as Huawei and Sixty-Eight of Its Subsidiaries Were Added to the Entity List, Causing China to Retaliate

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.

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LEGAL DEVELOPMENTS ALERT: White House Announces Tariffs on All Imports from Mexico

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)).  

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LEGAL DEVELOPMENTS ALERT: DCAA Issues Revised Audit Guidance on Expressly Unallowable Costs

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.

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LEGAL DEVELOPMENTS ALERT: Supreme Court Addresses False Claims Act Statute of Limitations

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.

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LEGAL DEVELOPMENTS ALERT: DOJ Issues Guidance on False Claims Act Matters

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.

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LEGAL DEVELOPMENTS ALERT: John S. Pachter and Todd M. Garland Submit Amici Curiae Brief to Armed Services Board of Contract Appeals on Behalf of Professional Services Council and National Defense Industrial Association

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.

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LEGAL DEVELOPMENTS ALERT: OFCCP Announces 2019 Contractor Compliance Audits

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

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LEGAL DEVELOPMENTS ALERT: U.S. Attorney Jessie Liu Appointed Chairwoman of the Attorney General's Advisory Committee

LEGAL DEVELOPMENTS ALERT: U.S. Attorney Jessie Liu Appointed Chairwoman of the Attorney General's Advisory Committee

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LEGAL DEVELOPMENTS ALERT: Assistant Attorney General Brian A. Benczkowski Promotes Transparency with the Business Community

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.

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LEGAL DEVELOPMENTS ALERT: DOD Issues Several Memos on Cybersecurity Compliance

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.

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LEGAL DEVELOPMENTS ALERT: GAO Issues Report on DCAA and DCMA Business System Audits

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. 

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LEGAL DEVELOPMENTS ALERT: Presidential Executive Order on Strengthening Buy American Preferences for Infrastructure Projects

 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.

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Smith Pachter McWhorter's False Claims Act Practice Guide: 2019

Smith Pachter McWhorter PLC is pleased to present the 2019 edition of its False Claims Act Practice Guide. 

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LEGAL DEVELOPMENTS ALERT: New Law Revises Small Business Size Formula

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.

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LEGAL DEVELOPMENTS ALERT: DOJ Provides Guidance on Corporate Compliance Programs and Monitorships

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.

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Law360 Expert Analysis: A Defense Counsel's Guide To New DOJ Manual

Smith Pachter McWhorter's Cormac Connor and Iris Bennett provide expert analysis of DOJ's recent revisions to the United States Attorneys’ Manual in Law360.

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LEGAL DEVELOPMENTS ALERT: Petrobras Reaches Global Settlement with U.S. and Brazilian Authorities

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.

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LEGAL DEVELOPMENTS ALERT: Second Circuit Rebuffs DOJ’s Long-Held Theory on the Reach of Conspiracy Law to Prosecute Non-U.S. Persons Under the FCPA

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.

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CLIENT ALERT: Seventh Circuit Dismisses False Claims Act Suit Arising From Alleged Non-Compliance with the Trade Agreements Act

Seventh Circuit dismisses False Claims Act suit arising from alleged non-compliance with the Trade Agreements Act

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CLIENT ALERT: ASBCA: Government is Held to Commercial Computer Software License Not Reviewed or Approved by Contracting Officer

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.

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CLIENT ALERT: DCAA Claims Progress In Reducing Audit Backlog

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.

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CLIENT ALERT: Department of Transportation Issues Final Rule to Encourage Public-Private Partnerships and Private Investment

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.

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CLIENT ALERT: SBA Prepares for Upcoming Subcontractor Past Performance Pilot Program

On April 20, 2018, the Small Business Administration published a notice and request for comments on the new Subcontractor Past Performance Pilot Program.

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Smith Pachter McWhorter Announces Cormac Connor Joins White Collar Practice

SPM is pleased to announce that experienced white collar defense and government investigations attorney Cormac T. Connor has joined the firm as a partner.

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CLIENT ALERT: Mayberry Enterprises, LLC v. Dep't of Energy

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.  

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NIST Releases Cybersecurity Framework Version 1.1 with Important Updates

The National Institute of Standards and Technology (“NIST”) released a new version of the Framework for Improving Critical Infrastructure Cybersecurity with important updates.

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CLIENT ALERT: DoD Increases the Micro-Purchase Threshold, Simplified Acquisition Thresholds, and Special Emergency Procurement Authority

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.

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Stirring the Muddy Waters: The Federal Circuit's Decision in Securiforce Thickens the Confusion Surrounding Maropakis and Upsets Settled Law on Nonmonetary Claims

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.

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John Marshall Cook Inducted into the American College of Construction Lawyers

SPM congratulates John Marshall Cook on being inducted as a Fellow of the American College of Construction Lawyers.

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CLIENT ALERT: The GSA Releases Final Rule Concerning Unenforceable Terms in Commercial Supplier Agreements

Client Alert: The GSA published a final rule to rectify inconsistencies and ambiguities when contractors use Commercial Supplier Agreements.

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CLIENT ALERT: DOD Issues Final Rule on Commercial Item Determinations and Price Reasonableness

Department of Defense issues Final Rule on Commercial Item determinations and price reasonableness.  

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Client Alert: GSA Finalizes Rule for Off-Schedule Acquisitions

GSA publishes a new rule for off-schedule acquisitions under existing Federal Supply Schedule contracts. 

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CLIENT ALERT: GSA Proposes Cybersecurity Rules for 2018

GSA publishes plan to implement cybersecurity regulations governing information system security and cyber incident reporting.  

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Luna Innovations, Inc.: A Questionable ASBCA Decision On Stock Option Costs

In "Luna Innovations, Inc.: A Questionable ASBCA Decision On Stock Option Costs, "Richard C. Johnson and Ashley N. Amen review the Armed Services Board of Contract Appeals’ recent decision in Luna Innovations, Inc.

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CLIENT ALERT: FY 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).

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Right of First Refusal: Smith Pachter McWhorter Successfully Represents Contractor in Breach of Contract Claim.

Right of First Refusal: Smith Pachter McWhorter Successfully Represents Contractor in Breach of Contract Claim. 

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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.”

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Smith Pachter McWhorter Successfully Represents Five Individuals in Air Force Suspension and Debarment Proceedings

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. 

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Fifth Circuit Reverses $663 Million Judgment Against Government Contractor Based on Escobar’s Demanding and Rigorous Materiality Standard.

Fifth Circuit Reverses $663 Million Judgment Against Government Contractor Based on Escobar’s Demanding and Rigorous Materiality Standard. A recent Fifth Circuit decision applying the False Claims Act’s (“FCA”) materiality requirement reinforces the “demanding” standard established by the Supreme Court in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016).  In United States ex rel. Harman v. Trinity Industries Inc., 2017 WL 4325279 (5th Cir. Sept. 29, 2017), the government’s continued payment despite knowledge of alleged regulatory violations resulted in dismissal for want of materiality.

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Performance Evaluations: Leveling the Playing Field

In the article, "Performance Evaluations: Leveling the Playing Field," Smith Pachter McWhorter’s Kathryn Griffin, Erica Geibel, and Todd Garland summarize recent developments in contractor performance evaluation challenges.

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Iris Bennett Elected Chair of the Public International and Criminal Law Subcommittee for the D.C. Bar, International Law Community

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.  

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Law360 Expert Analysis: FCPA Disgorgement: Putting SEC To Its Burden Of Proof

In the Law360 Expert Analysis article, "FCPA Disgorgement: Putting SEC To Its Burden Of Proof," Iris Bennett, Sean Hartigan and Lidiya Kurin discuss the ability to require disgorgement of ill-gotten gains in Foreign Corrupt Practices Act cases as a powerful enforcement tool for the U.S. Securities and Exchange Commission. Disgorgement orders are a staple of the SEC’s FCPA enforcement docket, and are often in the millions or tens of millions of dollars. In 2016, for example, out of 24 SEC FCPA corporate settlements, 20 of them imposed disgorgement. Many of those disgorgement orders were for amounts of more than $10 million, and several of them were more than $100 million.

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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. 

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Ninth Circuit Issues Expansive Reading of Escobar

The broad reading of Escobar’s requirements reflects the increased risk for companies doing business with the government to be subject to FCA liability on an “implied certification” theory in the post-Escobar era.

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Limitations on Subcontracting: Regulatory Disconnect Leaves Small Businesses in an Untenable Situation

The Procurement Lawyer has published an article,"Limitations on Subcontracting: Regulatory Disconnect Leaves Small Businesses in an Untenable Situation," by Zachary D. Prince and Kristin A. Tisdelle on general guidance for mall businesses competing for or performing set-aside contracts caught in a difficult position because of delays in statutory implementation by the FAR Council, which follow delays in statutory implementation by the Small Business Administration (SBA). The Federal Acquisition Regulation (FAR) provides a specific formula, included in a mandatory clause for all small business set-aside solicitations and contracts, to be used in evaluating whether a small business complies with subcontracting limitations.

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OMB Releases Guidance Requiring Agencies to Report “Buy American” and “Hire American” Compliance by September 2017

OMB Releases Guidance Requiring Agencies to Report “Buy American” and “Hire American” Compliance by September 2017

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Supreme Court Limits Powerful SEC Enforcement Tool, Holding that Disgorgement is Subject to Five-Year Statute of Limitations

Supreme Court Limits Powerful SEC Enforcement Tool, Holding that Disgorgement is Subject to Five-Year Statute of Limitations

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FCPA Compliance and Enforcement Trends Annual Guide: April 2017

Smith Pachter McWhorter presents its FCPA Compliance and Enforcement Trends Annual Guide: April 2017.

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NIST Proposes Updates to Cybersecurity Framework

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.  

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President Trump Signs Executive Order Amending “Buy American” and “Hire American” Rules Applicable To Federal Procurements

On April 18, 2017, President Trump signed an executive order amending “Buy American” and “Hire American” rules applicable to Federal procurements.

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President Trump Expected To Sign Executive Order Amending “Buy American” and “Hire American” Rules Applicable To Federal Procurements

President Trump Expected To Sign Executive Order Amending “Buy American” and “Hire American” Rules Applicable To Federal Procurements

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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.

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SPM Secures Major Victory for Bechtel National, Inc. in Virginia State Court Litigation with Parsons Government Services, Inc.

On behalf of Bechtel National, Inc., Smith Pachter McWhorter, prevailed in an $80 million dollar lawsuit brought by Parsons Government Services.

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Proposed Changes to the Bayh-Dole Act Will Alter Contractor Timelines for Protecting Patents to Subject Inventions, Other Requirements

The Patent and Trademark Law Amendments Act of 1980—better known as the Bayh-Dole Act (the “Act” or “Bayh-Dole”) — governs the ownership of patent rights developed under federal funding vehicles, including procurement contracts, grants, and cooperative agreements. The Act allows universities, small businesses, and non-profit institutions (“contractors”) to pursue ownership and commercialize inventions developed using federal funds. Proposed changes to the Bayh-Dole Act will alter contractor timelines for protecting patents to subject inventions and other requirements.

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Final Rule Amends Fair Pay and Safe Workplaces Regulations to Incorporate Preliminary Injunction; New Paycheck Transparency Requirements Take Effect January 1, 2017

On December 16, 2016, the FAR Council issued a final rule amending the Fair Pay and Safe Workplaces regulations to comply with a recent Federal District Court order. The paycheck transparency provisions take effect on January 1, 2017. 

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New Final Rule Requires Compliance of Contractors Handling “Controlled Unclassified Information”

NARA issued a final rule, effective November 13, 2016, creating cross-agency practices and procedures for the safeguarding and handling of “Controlled Unclassified Information.”

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DFARS Update Provides Contractor Compliance Extension to December 31, 2017, but Reporting Obligations Persist Until Then

The Department of Defense (DoD) updated the DFARS cyber clause in giving contractors that handle covered defense information until December 31, 2017, to be in full compliance with the requirements outlined in DFARS 252.204-7012 and NIST 800-171. 

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New FAR Final Rule Requires Compliance of Contractors Handling “Federal Contract Information”

A new FAR Final Rule obligates contractors to employ a set of 15 “basic safeguarding” controls for contractor information systems that handle “Federal Contract Information.” 

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Texas Judge Issues Preliminary Injunction on Implementation of “Fair Pay and Safe Workplaces” Regulations

On October 24, 2016, a federal judge blocked the nation-wide implementation of portions of the controversial “Fair Pay and Safe Workplaces” regulations. 

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Muddying the Waters: Six Years of Confusion in the Wake of Maropakis

Smith Pachter McWhorter's Richard C. Johnson and Ashley N. Barbera Amen discuss decision of the Federal Circuit in Maropakis Carpentry, Inc. v. United States, six years following the decision. 

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Kickbacks Result in Forfeiture of Claim

In Kickbacks Result in Forfeiture of Claim, John Pachter and Todd Garland discuss Laguna Construction Co., Inc. v. Carter, where Laguna Construction provides that where an employee accepts kickbacks and the contractor lacks knowledge of the kickbacks, the contractor may be barred from recovering any unreimbursed costs under that contract.

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Texas Lawsuit Challenges Constitutionality of “Fair Pay and Safe Workplaces” Regulations

On October 7, 2016, trade groups filed a lawsuit in federal court to block implementation of the “Fair Pay and Safe Workplaces” regulations. The Associated Builders and Contractors and the National Association of Security Corporations sued on behalf of their government contract members in the United States District Court for the Eastern District of Texas, listing six counts challenging the constitutionality of the Fair Pay and Safe Workplaces rules and seeking injunctive and declaratory relief to prevent implementation of the regulations.

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DOD Issues Guidance Memorandum Regarding Commercial Item Determinations and the Determination of Price Reasonableness for Commercial Items

On September 2, 2016 the Department of Defense (“DoD”) issued a Guidance Memorandum entitled Commercial Item Determinations and the Determination of Price Reasonableness for Commercial Items (“Memorandum”).  The Memorandum discusses an August 11, 2016, DoD proposed rule to implement sections of the National Defense Authorization Act (“NDAA”) for FY 2013 and FY 2016. These provisions simplify determinations of commerciality and price reasonableness under Part 12 of the Federal Acquisition Regulation (“FAR”). 

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FAR Final Rule on Cybersecurity Safeguarding Requirements

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".

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Cost Impact Calculations: A Significant Raytheon Decision In The ASBCA

Richard C. Johnson discuss cost impact calculations and voluntary cost accounting changes in the Raytheon Co., Space & Airborne Systems appeal in "Cost Impact Calculations: A Significant Raytheon Decision In The ASBCA," published by Government Contract Costs, Pricing & Accounting Report.

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Client Alert: New DoD DCMA Instructions on Counterfeit Part Mitigation Procedure

In the growing effort to prevent counterfeit parts from entering the United States’ defense supply chain, on July 6, 2015, the Defense Contract Management Agency (DCMA) published new internal instructions for assessing and mitigating risks within Contractor Counterfeit Electronic Part Avoidance and Detection Systems.

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Client Alert: DFARS Final Rule - Network Penetration Reporting and Contracting for Cloud Services

In response to the proliferation of cloud-based systems and networks by its contractors, the U.S. Department of Defense (DOD) issued an interim final rule on August 26, 2015 expanding cybersecurity requirements for all DOD contractors. 

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Client Alert: FAR Acquisition-Related Thresholds Have Been Increased

The DOD, GSA, and NASA issued a final rule, published July 2, 2015, amending the FAR to adjust acquisition-related thresholds for inflation.  In accordance with the U.S. Code, FAR acquisition-related thresholds must be adjusted for inflation every five years using the Consumer Price Index for all urban consumers.  

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Proposed FAR Amendments Aim to Increase Small Business Opportunities

The U.S. Department of Defense, the National Aeronautics and Space Administration, and the U.S. General Services Administration proposed to amend the Federal Acquisition Regulation (FAR) to comply with a 2013 U.S. Small Business Administration final rule that seeks to increase subcontracting opportunities for small businesses. 

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Proposed FAR Rule: “Fair Pay and Safe Workplaces” FAR Case 2014-025, Fair Pay and Safe Workplaces

President Obama issued Executive Order (“E.O.”) 13673, “Fair Pay and Safe Workplaces,” on July 31, 2014 to improve compliance with labors laws and increase efficiency in Federal Contracting.

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FY 2014: A Positive Year for GAO Bid Protests at Smith Pachter McWhorter PLC

The U.S. Government Accountability Office (GAO) has issued its annual report to Congress on its bid protest decisions for fiscal year 2014.  GAO sustained 72 protests.  Of those 72, three protesters were represented by Smith Pachter McWhorter, PLC.

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Federal Circuit Affirms Aircraft Contractor's Compliance With Cost Accounting Standard in Sikorsky Aircraft Corp. v. United States

Federal Circuit Affirms Aircraft Contractor's Compliance With Cost Accounting Standard in Sikorsky Aircraft Corp. v. United States, Fed. Cir., No. 2013-5096, -5099, affirming denial of government's nearly $80 million claim for alleged CAS violation, claiming the government was unable to show there was something wrong with the contractor's accounting method, the court said. According to a practitioner, the ruling “provides a sound basis for contractors to aggressively use materiality as a defense when the relevant requirement expressly or implicitly provides that immaterial impacts do not create a noncompliance.”

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An Arbitration Clause Will Survive Expiration of a Contract Even if the Arbitration Agreement is Not Listed in the Survival Clause

Edmund M. Amorosi discusses the duty to arbitrate in "An Arbitration Clause Will Survive Expiration of a Contract Even if the Arbitration Agreement is Not Listed in the Survival Clause" Case Note: Huffman, et al. v. The Hilltop Companies, LLC, 747 F.3d 391 (6th Cir. 2014). 

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Attorney-Client Privilege Applies to Corporate Internal Investigations

John S. Pachter discusses the recent U.S. Court of Appeals for the District of Columbia Circuit published opinion that the attorney-client privilege applies to internal investigations concerning alleged fraud in the performance of government contracts, even if the investigation was conducted pursuant to a compliance program mandated by federal regulation. Case Note: In re Kellogg Brown & Root Inc., D.C. Cir., No. 14-5055, (slip op. June 27, 2014). 

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Department of Justice FCPA Opinion Procedure Release 14-01 Addresses Business Transactions Between Companies and Government Officials

On March 17, 2014 the U.S. Department of Justice (“DOJ”) published its first Opinion Procedure Release of the year.  Pursuant to 15 U.S. Code §§ 78dd-1(e) and 78dd-2(f), the DOJ is required to provide timely responses to specific inquiries made by issuers and domestic concerns seeking an opinion as to whether specified prospective conduct conforms with the DOJ’s present enforcement of the Foreign Corrupt Practices Act (“FCPA”).  

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John Pachter and Richard Johnson Submit Amicus Brief to U.S. Supreme Court on behalf of Professional Services Council

John Pachter and Richard Johnson authored an amicus brief on behalf of the Professional Services Council to the U.S. Supreme Court.

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Client Alert: Government Accountability Office Issues Bid Protest Annual Report to Congress for Fiscal Year 2013

The U.S. Government Accountability Office (GAO) has issued its Bid Protest Annual Report to Congress for Fiscal Year 2013. 

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SPM Hosts WMACCA Government Contractors Forum Presentation: Executives in DCAA Crosshairs - New Limits on Executive Compensation

Smith Pachter McWhorter Will Host a Washington Metropolitan Area Corporate Counsel Association (WMACCA) Government Contractors Forum Presentation: Executives in DCAA Crosshairs - New Limits on Executive Compensation, Presented by Stephen D. Knight and Kathryn T. Muldoon of Smith Pachter McWhorter PLC and Dr. Thomas L. Corwin, President and Chief Operating Officer of Metron, Inc. Moderated by Steve Epstein, Chief Counsel, Ethics and Compliance, The Boeing Company.

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Smith Pachter Sponsors ABA Section of Public Contract Law 2013 Annual Meeting

The American Bar Associations Section of Public Contract Law 2013 Annual Meeting will be held in San Francisco, CA, August 9-12, 2013.

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GAO Report on Significant Bid Protests and Statistics for Fiscal Year 2012

The Government Accountability Office issues report discussing bid protest statistics for fiscal years 2008-2012 and highlighting the significant decision from 2012.

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GAO Issues Bid Protest Statistics for Fiscal Years 2008-2012

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.

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Government Contracts Fraud and Audit Alert Stephen D. Knight

The last three months have brought significant developments in government contracts fraud enforcement and audit issues.

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Federal Agencies Should Not Use Contractor's Filing of Protests or Claims or Use of ADR in Past Performance Evaluations

Contractors should review previous past performance "report cards" to ensure that the contracting agency is in compliance with current OFPP guidance.

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Xerxe Decision Forces Government Contractors to Mark Each Page to Protect Unsolicited Proposals

For more information on this decision and how it may affect you, John Pachter and Jonathan Shaffer have prepared a Client Advisory explaining the ramifications of this recent decision.

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Virginia Bid Protest Procedures

John S. Pachter
June 19, 2001

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