On May 16, 2019, the U.S. Bureau of Industry and Security (BIS) issued a final rule amending the Export Administration Regulations (EAR) to add Huawei Technologies Co., Ltd. (Huawei) and its sixty-eight non-U.S. affiliates to the Entity List. Five days later, on May 20, 2019, BIS issued another final rule granting a 90-day Temporary General License (May 20, 2019 through August 19, 2019) for four categories of EAR-regulated transactions involving existing and fully operational networks/systems, handsets made available to the public on or before May 16, 2019, and 5G standardization. China countered by furious rhetoric and threats of counter measures including an “Unreliable Entity List” targeting persons and companies stopping or disrupting supply to Chinese companies like Huawei “for non-commercial reasons.” This article discusses the risks U.S. exporters may face in the context of the regulatory clash between the two economic giants and some of the coping strategies in light of regulatory uncertainties affecting the feasibility of ongoing business relationships with Huawei.
On May 30, 2019, President Trump announced that “the United States will impose a 5% Tariff on all goods…from Mexico...” Certain FAR clauses permit price adjustments for new duties imposed after award (e.g., FAR 52.229-3) or if specified contingencies occur (see FAR 16.203-1(a)).
On May 14, 2019, the Defense Contract Audit Agency (DCAA) issued Memorandum for Regional Directors (MRD) No. 19-PAC-002(R), revising DCAA’s “guidance” on identifying expressly unallowable costs. The revised guidance attempts to correct MRD Nos. 14-PAC-021(R) and 14-PAC-022(R) – MRDs that were inherently flawed as highlighted by recent Armed Services Board of Contract Appeals (ASBCA) decisions. The MRD includes an updated listing of Federal Acquisition Regulation (FAR) 31 and Defense Federal Acquisition Regulation Supplement (DFARS) 231 cost principles that DCAA continues to assert, incorrectly in many instances, meet the definition of expressly unallowable costs that are subject to penalties. Contractors should review DCAA’s updated list, as the release of the revised MRD may indicate that DCAA intends to refocus its audit efforts in the penalties arena.
The U.S. Supreme Court issued a unanimous decision in Cochise Consultancy, Inc., et al. v. United States ex rel. Hunt, addressing conflicting decisions on the False Claims Act statute of limitations and expanding the time allowed for private party relators to file whistleblower lawsuits. The decision increases the risk that government contractors may be subject to qui tam claims brought as many as ten years after the alleged violation, including by relators who may have chosen not to act on their own knowledge, provided that the relator can prove that government agent had or should have had knowledge of the alleged false claim.
NEW ATTORNEY ANNOUNCMENT: Vincent Li has joined Smith Pachter McWhorter’s White Collar Practice Group
SPM EVENT: On Tuesday, May 28, 2019 SPM Member Armani Vadiee and Todd M. Garland will present at the National Contract Management Association, Washington DC chapter event regarding price/cost realism evaluations and preparing successful proposals.
LEGAL DEVELOPMENTS ALERT: OFCCP Announces 2019 Contractor Compliance Audits
LEGAL DEVELOPMENTS ALERT: Assistant Attorney General Brian A. Benczkowski Promotes Transparency with the Business Community
In two articles, John S. Pachter and Todd M. Garland discuss recent False Claims Act trends.
LEGAL DEVELOPMENTS ALERT: Presidential Executive Order on Strengthening Buy American Preferences for Infrastructure Projects
Smith Pachter McWhorter PLC is pleased to present the 2019 edition of its False Claims Act Practice Guide
LEGAL DEVELOPMENTS ALERT: New Law Revises Small Business Size Formula
LEGAL DEVELOPMENTS ALERT: DOJ Provides Guidance on Corporate Compliance Programs and Monitorships
SPM's Cormac Connor and Iris Bennett provide expert analysis of DOJ's recent revisions to the United States Attorneys’ Manual in Law360.
On Thursday, September 27, Brazil’s state-owned-and-controlled oil and gas company Petrobras and U.S. authorities announced a settlement to resolve U.S. government investigations into violations of the Foreign Corrupt Practices Act
SPM Member Iris Bennett to be on CLE panel on Ethical Issues in Internal Investigations and in Responding to Government Investigations at the 2018 Women, Influence & Power in Law conference, held in Washington, D.C.
Second Circuit Rebuffs DOJ’s Long-Held Theory on the Reach of Conspiracy Law to Prosecute Non-U.S. Persons Under the FCPA
Seventh Circuit dismisses False Claims Act suit arising from alleged non-compliance with the Trade Agreements Act
The recent ASBCA decision in CiyaSoft highlights the government’s responsibility to inquire about licensing terms and use reasonable measures to protect commercial software. However, it is still best practice to avoid such disputes by obtaining express agreement to licensing terms.
SPM's Kelsey Wilbanks discusses 3D Gun Legality After Defense Distributed Settlement, Ruling
John Pachter quoted in article in Bloomberg Federal Contracts Report about U.S. Supreme Court nominee Brett Kavanaugh.
CLIENT ALERT: On March 31, 2018, the Defense Contract Audit Agency ("DCAA") issued its Fiscal Year 2017 Annual Report to Congress, made public on May 21, 2018. The FY 2017 Report sets forth DCAA’s audit performance, recommendations to improve the audit process, and industry outreach activities.
CLIENT ALERT: On May 30, 2018, the Department of Transportation’s Federal Transit Administration published a final rule creating new Private Investment Project Procedures (“PIPP”). The final rule, effective June 29, 2018, allows recipients of federal funding for public transportation capital projects to request a waiver or modification to FTA regulations.
CLIENT ALERT: In April, the Small Business Administration published a notice and request for comments on the new Subcontractor Past Performance Pilot Program.
SPM's 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.
SPM is pleased to announce that experienced white collar defense and government investigations attorney Cormac T. Connor has joined the firm as a partner.
SPM's Erica J. Geibel wins the ABA Forum on Construction Law Trial Academy Writing Competition and SPM's Todd M. Garland selected as a finalist.
The National Institute of Standards and Technology (“NIST”) released a new version of the Framework for Improving Critical Infrastructure Cybersecurity with important updates.
SPM's Iris Bennett will speak at a DC Bar panel on World Bank sanctions, monitoring, and compliance mentoring on May 9, 2018.
SPM attorneys will teach a course at the DC Bar that addresses the procedural and substantive rules and practices governing bid protests.
Client Alert: DPAP issued a Class Deviation affecting the Micro-Purchase and Simplified Acquisition Thresholds, as well as associated Special Emergency Procurement Authority, for the Department of Defense.
SPM's Richard C. Johnson and Ashley N. Barbera Amen discuss the Federal Circuit's recent decision in Securiforce in the March 13, 2018 Bloomberg BNA Federal Contracts Report.
The Virginia Public Procurement Act (VPPA) includes a unique provision that differs substantially from the federal standard. - Jonathan D. Shaffer and Todd M. Garland discuss procurement cancellation under the VPPA.
Client Alert: The GSA published a final rule to rectify inconsistencies and ambiguities when contractors use Commercial Supplier Agreements.
SPM's FCPA Compliance and Enforcement Trends Annual Guide: January 2018.
Client Alert: Department of Defense issues Final Rule on Commercial Item determinations and price reasonableness.
GSA publishes a new rule for off-schedule acquisitions under existing Federal Supply Schedule contracts.
GSA publishes plan to implement cybersecurity regulations governing information system security and cyber incident reporting.
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 has featured Kelsey Wilbanks’ expert analysis on Defense Distributed, a Fifth Circuit decision discussing 3D Printing and ITAR regulations.
Client Alert: Fiscal Year 2018 NDAA Acquisition Reform Highlights. Each year, Congress specifies the annual budget, establishes funding levels, and sets spending policies for the Department of Defense (DoD) though the National Defense Authorization Act (NDAA).
Smith Pachter McWhorter attorney Kelsey Wilbanks was asked by Bloomberg Law to comment on a legal case involving 3D printing and its petition for certiorari to the Supreme Court.
Fifth Circuit Decision Reinforces Need for Anti-Kickback Act Compliance. 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.
SPM's primer of FAQs regarding FCPA Compliance, available in English, Mandarin, Portuguese, and Spanish.
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.”
Smith Pachter McWhorter PLC is pleased to present the 2017 edition of its False Claims Act Practice Guide
Iris E. Bennett, with co-panelists, will lead a discussion on the Foreign Corrupt Practices Act at the 2017 Women, Influence & Power in Law conference, held in Washington, D.C.
Iris E. Bennett will serve as Chair of the Public International and Criminal Law Subcommittee for the District of Columbia Bar, International Law Community, for 2017-2018.
FCPA Disgorgement: Putting SEC To Its Burden Of Proof. The ability to require disgorgement of ill-gotten gains in Foreign Corrupt Practices Act cases is 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.
Federal Court Overturns 15-Year Debarment Arising from Affiliate’s Alleged Misconduct. The United States District Court for the District of Columbia recently overturned the Defense Logistics Agency’s (the “Agency’s”) 15-year debarment from federal contracting of a Houston-based food exporter and its affiliates.
Dorothy E. Terrell named among Virginia’s Best Women Lawyers in a list adapted by Virginia Living magazine from The Best Lawyers in America 2017.
Limitations on Subcontracting: Regulatory Disconnect Leaves Small Businesses in an Untenable Situation - By Zachary Prince and Kristin Tisdelle
Supreme Court Limits Powerful SEC Enforcement Tool, Holding that Disgorgement is Subject to Five-Year Statute of Limitations
Chambers 2017 has ranked Smith Pachter McWhorter PLC amongst the Top Tiers Nationwide for Government Contracts and in Virginia for Construction law.
SPM's White Collar practice group conduct anti-corruption compliance workshops in Sao Paulo, Brazil and Rio de Janeiro, Brazil, May 23-25, 2017,
SPM's FCPA Compliance and Enforcement Trends Annual Guide: April 2017.
NIST Proposes Updates to Cybersecurity Framework - On May 16, 2017, the National Institute of Standards and Technology (NIST) held a workshop discussing the proposed updates and feedback for version 1.1 of the federal Cybersecurity Framework – a set of industry standards and best practices developed to protect complex critical infrastructure from cybersecurity threats and infiltration.
Super Lawyers honors Smith Pachter McWhorter attorneys in the 2017 listings for their achievements and expertise in their respective areas of practice. The attorneys selected include:
Trump Signs Executive Order Amending “Buy American” and “Hire American” Rules Applicable To Federal Procurements
Cost Allowability - Join highly experienced faculty for this practical and informative two-day program focusing on cost allowability, allocability, and reasonableness under the Federal Acquisition Regulation.
President Trump Expected To Sign Executive Order Amending “Buy American” and “Hire American” Rules Applicable To Federal Procurements
Smith Pachter McWhorter is proud to participate in the 2017 Legal Food Frenzy, a food and fund drive sponsored by the Attorney General of Virginia, the Young Lawyers Division of The Virginia Bar Association, and the Federation of Virginia Food Banks.
Trump Rescinds Controversial “Fair Pay Safe Workplaces” Regulations -
On March 27, 2017, President Donald Trump signed a Congressional Review Act resolution permanently rescinding the “Fair Pay and Safe Workplaces” regulations, dubbed the “blacklisting rule” by opponents..
The Government Audit Process: Limitations and Considerations presented by the Government Contracts Section of the Fairfax Bar Association
On behalf of Bechtel National, Inc., Smith Pachter McWhorter, prevailed in an $80 million dollar lawsuit brought by Parsons Government Services
SPM member Jonathan Shaffer has been named to participate on Law360's 2017 Government Contracts Editorial Advisory Board.
Beyond Prototyping: 3D Printing in Government Contracts - Smith Pachter McWhorter's Kelsey Wilbanks and Armani Vadiee discuss the history of 3D printing and its application and use in government contracts.
Proposed Changes to the Bayh-Dole Act Will Alter Contractor Timelines for Protecting Patents to Subject Inventions, Other Requirements
Government Contractor Employment Law Symposium March 16, 2017. SPM Attorneys John Cook, Erica Geibel, Armani Vadiee, and Owen Walker and Will be Guest Speakers at Jackson Lewis Government Contractor Employment Law Symposium
Smith Pachter McWhorter hosts BCABA members for a conversation addressing current issues in E-Discovery at the Boards, including preservation responsibilities and the proportionality of discovery requests.
New Final Rule Requires Compliance of Contractors Handling “Controlled Unclassified Information.”
DFARS Update Provides Contractor Compliance Extension to December 31, 2017, but Reporting Obligations Persist Until Then.
New FAR Final Rule Requires Compliance of Contractors Handling “Federal Contract Information.”
Texas judge issues preliminary injunction on implementation of “Fair Pay and Safe Workplaces” Regulations.
Government Contractors Forum: Safe Passage or Stormy Seas - Managing Risk in Prime-Subcontract Disputes Involving Pass-Through Claims
Muddying the Waters: Six Years of Confusion in the Wake of Maropakis - Richard C. Johnson and Ashley N. Amen discuss decision of the Federal Circuit in Maropakis Carpentry, Inc. v. United States, 6 years following the decision.
Kickbacks Result in Forfeiture of Claim: Taken to its logical conclusion, 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.
Texas Lawsuit Challenges Constitutionality of “Fair Pay and Safe Workplaces” Regulations.
Available now: Smith Pachter McWhorter's False Claims Act Practice Guide: 2016
Iris E. Bennett, panellist on the Foreign Corrupt Practices Act at the 2016 Women, Influence & Power in Law conference, held in Washington, D.C.
When Does a Company ‘Knowingly’ Violate the Anti-Kickback Act? John S. Pachter and Todd M. Garland discuss a case currently pending before the U.S. Court of Appeals for the Fifth Circuit and how it will increase the stakes for companies faced with Anti-Kickback Act allegations.
Course: Price and Cost Realism in Government Contracting - Instructors Armani Vadiee of Smith Pachter McWhorter and Robert Craig of BDO.
FAR Cybersecurity Final Rule - On May 16, 2016 DoD, GSA, and NASA issued a long anticipated Final Rule on cybersecurity, by adding a new subpart 4.19 and contract clause 52.204-21, "Basic Safegaurding of Covered Contractor Information Systems".
Gregory A. Smith was recently appointed to be a Lecturer, and adjunct member of the faculty at UVA.
How Should The CDA Limitations Period Apply To Government Indirect Cost Claims? - Alion Science & Technology Corp., ASBCA No. 58992 (Nov. 10, 2015)
SPM Presentation - Top 10 Things You Should Know About Government Contracts. The federal government is unlike any other customer that a company can have. Not only must contracts with the federal government contain specific clauses promulgated as regulations, but those clauses provide the federal government with rights that would be labeled “breach” in commercial contracts.
SPM Presentation - Forming Government Contracts: Understanding the Players and the Process. Smith Pachter McWhorter's Jonathan D. Shaffer presents this new class which focuses on the statutes and regulations governing the government’s ability to contract; the authority of the contracting officer; the IFB (invitation for bid) and RFP (request for proposal) process; organizational conflicts of interest; role of bid protests; and responsibilities of the contractor.
Jonathan Shaffer named to Law 360's Government Contracts Editorial Advisory Board.
Encouraging Signs for False Claims Act Litigation: Recent Decisions Aligned to Guide Supreme Court Review
Cost Impact Calculations: A Significant Raytheon Decision In The ASBCA
Challenging Negative Performance Evaluations: Confronting Hurdles at ASBCA and COFC
The ASBCA’s Raytheon Decision: Expressly Unallowable Cost, Directly AssociatedCost, and Performance Restricted Stock
Client Alert: New DoD DCMA Instructions on Counterfeit Part Mitigation Procedure
DFARS Final Rule: Network Penetration Reporting and Contracting for Cloud Services
Client Alert: FAR acquisition-related thresholds have been increased as of July 2, 2015.
Proposed FAR Amendments Aim to Increase Small Business Opportunities
Richard C. Johnson and Armani Vadiee will be presenters on a webinar entitled, “Afghan Taxes, Business Registration, and Cost Recovery – A Step-by-Step Guide” which will take place on June 3 at 1:00 p.m. EDT.
Remarks of John S. Pachter at the Federal Circuit Bar Association Government Contracting Summit; Panel Topic: Implied Duty of Good Faith and Fair Dealing
After Metcalf Construction: Putting the Winstar Genie Back in the Bottle - By John S. Pachter
Jonathan Shaffer named to Law 360's Government Contracts Editorial Advisory Board.
FY 2014: A Positive Year for GAO Bid Protests at Smith Pachter McWhorter PLC
Whose Burden Is It, Anyway?: Implications Of The Federal Circuit Determination That The CDA Statute Of Limitations Is Nonjurisdictional
Federal Circuit Affirms Aircraft Contractor's Compliance With Cost Accounting Standard Sikorsky Aircraft Corp. v. United States, Fed. Cir., No. 2013-5096, -5099, 12/10/14 - John S. Pachter interviewed by BNA for comment.
WMACCA Government Contractors Forum: Independent Monitors - How To Avoid Them and How To Live With Them - Presented by Iris Bennett and Sean J. Hartigan of Smith Pachter McWhorter and an in-house panelist. Moderated by John Pachter of Smith Pachter McWhorter.
An Ounce of Prevention: A Guide for Combating Fraud in Construction.
By Wayne DeFlaminis, Sara P. Bryant, John Cook, and David Kirschbaum
Published in The Construction Lawyer, Volume 34, Number 3, Spring 2014 © 2014 by the American Bar Association
Case note: Huffman, et al. v. The Hilltop Companies, LLC, 747 F.3d 391 (6th Cir. 2014). An Arbitration Clause Will Survive Expiration of a Contract Even if the Arbitration Agreement is Not Listed in the Survival Clause
Attorney-Client Privilege Applies to Corporate Internal Investigations
By John S. Pachter
Client Advisory: Department of Justice FCPA Opinion Procedure Release 14-01 Addresses Business Transactions between Companies and Government Officials
By: Alana S. Tokayer
Virginia Governor Names Val McWhorter to Virginia Port Authority Board of Commissioners.
Jonathan D. Shaffer will speak on Hot Topics in State and Local Procurement: Bid Protests at the April 24-25, 2014 American Bar Association State and Local Procurement Symposium in Asheville, North Carolina.
John Pachter and Richard Johnson authored an amicus brief on behalf of the Professional Services Council to the U.S. Supreme Court.
The Government Accountability Office has issued its Bid Protest Annual Report to Congress for Fiscal Year 2013
Independent Monitors: What They Do and How to Avoid the Need for Them - By John S. Pachter
Smith Pachter McWhorter Announces New Partners in White Collar Practice - Joseph P. Covington has joined the firm as a partner...
Stephen D. Knight will present the opening remarks at ACI’s 5th Annual Advanced Forum on DCAA Audits on November 5-6, 2013 at the Westin Arlington Gateway in Arlington, VA.
Case Note: ASBCA Rejects Government's Four Damages Theories In Recent Defective Pricing Case. By Stephen D. Knight.
WMACCA Government Contractors Forum Presentation: Executives in DCAA Crosshairs - New Limits on Executive Compensation - September 18, 2013