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.
The Department of Defense (DoD) has released a long awaited interim rule on contractor cybersecurity requirements with immediate impacts for defense contractors of all sizes. The interim rule creates a two-pronged approach for full Cybersecurity Maturity Model Certification (CMMC) compliance by October 2025.
On September 22, 2020, President Trump issued Executive Order 13950 (E.O.), which seeks to address race and sex stereotyping in the government workplace and in government contracting. E.O. 13950 follows the Office of Management and Budget’s guidance from September 4, 2020 directing federal agencies to “identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’” or other racially-focused workplace training and “identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.”
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.
Design-build contracts, in which the contractor is responsible for both design and construction of a project, are abundant in today’s construction industry, including on federal government projects. RBC Construction Corp., a recent case before the Armed Service Board of Contract Appeals, sets helpful precedent for design-build contractors who find themselves subject to undue owner oversight resulting in delays.
Thompson Reuters recently published Federal Grant Practice: A Guide for the Government and Grantees 2020 Edition, with several updates by Smith Pachter McWhorter attorneys Jonathan D. Shaffer and Nora K. Brent, issued in June 2020. Federal Grant Practice is a comprehensive one-volume reference manual on federal grants. It provides explanations and advice on key aspects of grant management (including detailed coverage on contracting out grant dollars), all based on the requirements of OMB's Uniform Guidance, from the requirements for internal control to the conduct of Single Audit Act audits.
Virginia Lawyer Magazine recently published an article on “Practical Guidance for Virtual Depositions Under Pandemic Conditions” by Smith Pachter McWhorter government contracts attorney Michael T. Gwinn, providing practical advice on conducting virtual depositions.
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 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.
Smith Pachter McWhorter attorney Daniel H. Ramish quoted by Bloomberg Law on procurement shifts as a consequence of the COVID-19 pandemic in the June 22, 2020, published article, "Billions in Covid-19 Federal Contract Awards Not Facing Protests."
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.
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.
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.
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.
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.
ENR recently published an article in its Law & Risk Management Today I April 2020 issue on the Department of Defense (DoD) changes for its Cybersecurity Maturity Model Certification (CMMC) program by Smith Pachter McWhorter attorneys Elizabeth N. Jochum and Zachary D. Prince.
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.
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.
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.
Briefing Papers recently published an article on the most noteworthy government contract cost accounting and pricing cases of the last decade by Smith Pachter McWhorter attorneys Richard C. Johnson, Ashley N. Amen, Daniel H. Ramish, and Zachary D. Prince.
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 presents FCPA compliance resources in multiple languages including FAQs regarding FCPA compliance available in English, Mandarin, Portuguese, and Spanish.
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.
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.
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.
Smith Pachter McWhorter attorney Daniel H. Ramish was quoted by Bloomberg Law in the November 4, 2019, published article, "Feds May Be Real Winners if Appeal Helps "Confused" Contractors," discussing The Competition in Contracting Act and a proposed mandatory application of the four-factor test by the U.S. Court of Appeals for the Federal Circuit stemming from a 2006 claims court decision, Reilly’s Wholesale Produce v. United States.
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
The Virginia Bar Journal recently published an article on suspension and debarment in Virginia public procurement by Smith Pachter McWhorter attorneys Edmund M. Amorosi and Daniel H. Ramish.
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.
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.
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."
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)).
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.
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.
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.
In two articles, John S. Pachter and Todd M. Garland discuss recent False Claims Act trends.
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 present the 2019 edition of its False Claims Act Practice Guide.
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.
Law360 publishes article discussing a recent settlement in 3D Gun Legality After Defense Distributed Settlement, Ruling article.
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 Jonathan Shaffer and Todd Garland discuss a recent GAO decision sustaining a protest that challenged an award by the Department of Defense under its “other transaction” authority.
SPM's Stephen D. Knight will present at the Association of Corporate Counsel NCR Government Contractors Forum: A Roadmap for Managing DCAA Audits.
SPM's Armani Vadiee and Todd M. Garland discuss the Federal government’s “other transaction” authority in the April 2018 issue of Briefing Papers.
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.
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.
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.
The Virginia Public Procurement Act (VPPA) includes a unique provision that differs substantially from the federal standard. SPM's Jonathan D. Shaffer and Todd M. Garland discuss procurement cancellation under the VPPA.
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.
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.
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.
Law 360 Expert Analysis feature on Defense Distributed, a Fifth Circuit decision discussing 3D Printing and ITAR regulations.
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.
Bloomberg Government Federal Contracts Report publishes,"Fifth Circuit Decision Reinforces Need for Anti-Kickback Act Compliance" authored by Smith Pachter McWhorter's John Pachter and Todd Garland.
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.
Smith Pachter McWhorter PLC is pleased to present the 2017 edition of its False Claims Act Practice Guide.
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.
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.
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.
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.
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.
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.