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.
In the American Bar Association Forum on the Construction Industry 2 X 4 X10 Fall 2020 Newsletter article, Caught Between Tort and Contract: Gaps in the Economic Loss Doctrine, Smith Pachter McWhorter attorneys Kathryn T. Muldoon Griffin, Jacob B. Bolinger and Maxwell G. Terhar discuss the Economic Loss Doctrine and two recent decisions that demonstrate ongoing risks associated with evolving applications of the ELD in different jurisdictions.
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.”
Iris E. Bennett will be moderating an exclusive in-house compliance roundtable at the ACI Anti-Corruption Mexico Conference on October 8, 2020, as part of a “boardroom-style” networking and benchmarking session for in-house legal and compliance professionals.
The U.S. Department of Defense (DOD), the National Aeronautics and Space Administration (NASA), and the U.S. General Services Administration (GSA) proposed to amend the Federal Acquisition Regulation (FAR) to enforce Executive Order 13881, which seeks to strengthen domestic preferences in government procurements. Once final, the rule will amend current FAR provisions implementing the Buy American Act.
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.
ENR recently published the article “Project Delay…What’s Next?” by Smith Pachter McWhorter attorneys Kathryn Muldoon Griffin and Jacob Bolinger in the ENR Law & Risk Management Today II August/September 2020 issue, discussing project delays and importance of reviewing contract provisions in construction contracts to mitigate project risks.
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.
ENR interviews Smith Pachter McWhorter Member Brian J. Vella in “Voices of Construction Law Roundtable,” in the ENR Law & Risk Management Today II August 31/September 7, 2020 issue, as leading authorities on contracts and dispute-resolution talk trends, challenges and advice moving forward in today’s current climate.
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 16, 2020, the U.S. government announced criminal and civil enforcement actions against Essentra FZE Co. Ltd. (“Essentra”), a global supplier of cigarette products incorporated in the U.A.E., for North Korea Sanctions violations. Essentra entered into a deferred prosecution agreement (“DPA”) with the U.S. Department of Justice (“DOJ”) for conspiring to violate the International Emergency Economic Powers Act and defrauding the United States in connection with evading sanctions on North Korea. This DPA is noteworthy because it marks the DOJ’s first ever corporate enforcement action for violations of sanctions on North Korea. In the civil enforcement action, Essentra entered into a settlement agreement with the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”). Under these agreements, Essentra admitted that it received payments in bank accounts operated by the foreign branch of a U.S. financial institution that were for the sale of cigarette products that Essentra knew were destined for North Korea. It is notable that Essentra was targeted for criminal enforcement for receiving U.S. dollar or other currency payments into accounts held at a non-U.S. branch of a U.S. bank. DOJ and OFAC make clear that, regardless of which way the money flows, the facts may support liability under U.S. sanctions regimes. These actions signal that OFAC and the DOJ may be adopting a broader approach to sanctions enforcement.
On July 3, 2020, the Criminal Division of DOJ and the Enforcement Division of SEC released their first update to the Resource Guide to the U.S. Foreign Corrupt Practices Act since November 2012. The FCPA Resource Guide is a one-stop reference manual for the statutory requirements of the FCPA, DOJ’s and SEC’s enforcement policies and practices, recent enforcement actions and declinations, and applicable case law and DOJ opinion releases.
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."
Construction Executive has ranked Smith Pachter McWhorter PLC in The Top 50 Construction Law Firms™ for 2020.
On June 1, 2020, the Criminal Division of the U.S. Department of Justice (“DOJ”) published an updated version of its Evaluation of Corporate Compliance Programs, an official guide for prosecutors on how to evaluate a company’s compliance programs. “Today’s revised guidance on the Evaluation of Corporate Compliance Programs reflects additions based on our own experience and important feedback from the business and compliance communities,” Assistant Attorney General Brian Benczkowski commented.
Though most of the changes to DOJ’s prior Compliance Guidelines represent refinements of points in the prior versions, they nonetheless constitute significant trend indicators for evaluating compliance programs against evolving business realities.
Stephen D. Knight will teach a DC Bar CLE webinar course, "Top 10 Things You Should Know About Government Contracts," on Thursday, July 9, 2020, from 9:30 a.m. - 12:45 p.m.
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.
Richard F. Smith will be presenting on an American Bar Association (ABA) webinar entitled, "Professors' Corner: The Gap Between Construction Law Practice and Scholarship" on April 14, 2020. The Professor's Corner Webinar is sponsored by the Joint Legal Education and Uniform Laws Group of the ABA Section of Real Property, Trust and Estate Law.
The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) will provide more than $2 trillion in relief to those hardest hit by the economic impacts of the COVID-19 pandemic. Under the CARES Act, the federal government will provide checks to an estimated 150 million American households, set up loan programs for businesses, increase unemployment insurance programs, provide funds to hospitals and local governments, among other actions. As the largest economic stimulus package in history, there is a natural focus in the CARES Act on making sure that funds are used for their intended purpose, thus creating three new oversight bodies: the Office of the Special Inspector General for Pandemic Recovery within the Treasury Department (“SIGPR”); the Pandemic Response Accountability Committee (“PRAC”); and a Congressional Oversight Commission. Businesses benefiting from the much-needed relief the CARES Act provides should take the opportunity now to prepare for the increased scrutiny of a special Inspector General. Both during the pandemic response and after it subsides, we can expect that the SIGPR will probe how CARES Act funds were deployed with the full benefit of hindsight.
Government contractors are playing a critical role providing essential goods and services to aid the Government's response to the COVID-19 pandemic. This client alert provides an overview for contractors and agency procurement officials of the most significant acquisition changes for sourcing goods and services more quickly given the urgent situation, which include increased simplified acquisition thresholds, pre-established commercial item status for specified goods and services essential to the pandemic response, relief from competition requirements, and easing of some administrative requirements for doing business with the federal government. There are also special avenues for contributing to the relief efforts, including the National Disaster Registry and a program granting state and local governments access to GSA and VA schedules for emergency relief.
Smith Pachter McWhorter, Jackson Lewis and BDO will host a webinar on "Practical Guidance for Federal Contractors Navigating a COVID-19 Environment" on Tuesday, April 7, 2020, 1:00 - 2:15 p.m., addressing important issues related to stay-at-home mandates, non-essential business closures and restrictions, and orders related to the COVID-19 pandemic impacting employers. Federal government contractors face additional challenges with agency, contract or site-specific closures or restrictions impacting their ability to continue work as usual. At the same time Congress is enacting laws expanding paid and unpaid leave for certain workers, directing federal agencies to consider reimbursement of paid leave for certain government contractors, and providing additional unemployment benefits, loans and tax incentives. Panelists will address questions on these and other issues impacting contractors.
Federal Publications Seminars featured Stephen Knight on its FPS Podcast Series,Podcast #1: "Defense Production Act of 1950 Explained." The Defense Production Act of 1950 has been dormant for decades. In this FPS Podcast Stephen Knight, Partner at Smith Pachter McWhorter, explains what DPAS is and it's impact to contractors as it related to COVID-19, three executive orders and the meaning of a "rated" contract.
President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act") into law on March 27, 2020, the largest stimulus act in the history of the United States, amounting to a staggering $6.2 trillion. In addition to direct cash payment to citizens, the majority of the stimulus package is aimed at assisting businesses weather COVID-19's economic fallout. With government response changing and developing rapidly over the coming months, Smith Pachter McWhorter will provide additional guidance and analysis for contractors as the CARES Act and other response legislation is implemented.
Smith Pachter McWhorter PLC is pleased to announce that corporate and government investigation, compliance and white collar defense attorney Daniel A. Solomon has joined the firm as partner. Dan adds extensive experience in a broad range of international regulatory compliance matters, in particular, the Foreign Corrupt Practices Act (FCPA), corporate and government investigations, economic sanctions and export controls, and commercial transactions.
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.
Notice Regarding COVID-19 Response and Smith Pachter McWhorter Business Operations: In response to the COVID-19 virus, we have moved to remote working. We are committed to continuation of high-level service, mindful of the safety needs of our personnel. Our attorneys and staff have full capacity to work remotely. We will operate with a reduced staff to ensure continuation of essential functions. We will continue to be fully responsive to client needs.
The COVID-19 (Coronavirus disease) outbreak, and the resulting emergency declarations and quarantines in various cities and countries has the potential to negatively impact construction projects. The extent of the potential impacts on construction projects is unknown, but forward-looking contractors are already planning for possible labor shortages, material delays or unavailability, disruption to supply chains, and other impacts. Although contractors’ positions will be dependent on specific contract clauses, it is critical that contractors understand their options and review their contracts and form a plan to deal with possible impacts of the global spread of COVID-19.
Smith Pachter McWhorter PLC presents FCPA compliance resources in multiple languages including FAQs regarding FCPA compliance available in English, Mandarin, Portuguese, and Spanish.
Smith Pachter McWhorter PLC is pleased to announce the publication of the 4th Edition of the Virginia Construction Law Deskbook© Virginia CLE Publications. Brian J. Vella, Jennifer A. Mahar, and Edmund M. Amorosi, served as Co-Editors of the 4th Edition.
The Federal Bar Association recently hosted its annual Qui Tam Conference, bringing together panelists and attendees from the government, relators’ bar and the defense bar to analyze developments in the False Claims Act (FCA) enforcement arena. Several distinguished speakers presented at the panel, including Joseph H. (Jody) Hunt, Assistant Attorney General - DOJ Civil Division, and Michael Granston, Deputy Assistant Attorney General – DOJ Civil Division.
Elizabeth N. Jochum will present a webinar entitled, "Bid Protests - Corrective Action," on March 4, 2020, as part of a weekly webinar series hosted by federal procurement consultants Jennifer Schaus & Associates, based in Washington, D.C.
Smith Pachter McWhorter PLC is pleased to announce that Edmund M. Amorosi has been elected as Chair of the Virginia Bar Association’s Section on Construction and Public Contracts Law at the 130th Annual Meeting of the Virginia Bar Association in Williamsburg, Virginia on January 24, 2020.
Armani Vadiee Moderating Panel on Other Transaction Authority Procurements at the ABA Section of Public Contract Law Federal Procurement Institute: "Contracting for Innovation: Leveraging Alternative Procurement Vehicles to Deliver Capability at the Speed of Relevance,” at the ABA Section of Public Contract Law 26th Annual Federal Procurement Institute (FPI) on March 13, 2020, in Annapolis, MD.
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.