Articles Posted in Government Contracts

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In Supreme Court to Hear False Claims Act “Implied Certification” Appeal, we provide a primer for the oral argument that will be heard by the U.S. Supreme Court on April 19, 2016 in United Health Services supremecourtv. United States ex rel. Escobar, No. 15-7. The Court is expected to resolve the current split among federal appellate courts on the so-called “implied certification” theory of liability under the federal False Claims Act (FCA). The FCA imposes significant financial penalties for “knowingly present[ing], or caus[ing] to be presented, a false or fraudulent claim for payment or approval,” and prohibits contractors from making false statements “material to a false or fraudulent claim.” As many government contractors are well aware, the FCA has long been the Government’s favorite enforcement tool against federal contractors. Stay tuned for updates!

Additional Source: Schumer Alleges False “Made in America” Representations on GSA Website: False Claims Act Inquiry to Follow?

Photo:  David, US Supreme Court, Taken Sept. 19, 2014 – Creative Commons

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In Government Contractors Brace For Continuing Changes in Cybersecurity Regulations, my Pillsbury colleagues Brian Cruz, Travis Mullaney and I caution that the federal government is making cybersecurity a top priority and government contractors should expect a number of new regulation’s, policies and standards aimed at protecting against increasingly sophisticated cyber-warfare. As the government invigorates its own cybersecurity, contractors are and will be subject to parallel requirements. All federal contractors need a cybersecurity strategy that aligns with their business strategy with the federal government that will make them more competitive as requirements are invigorated through ongoing federal regulatory changes.

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In their recent client alert, An Evolving Landscape, on the connection between timely disallowance of expenses and government access to contractor data, Pillsbury attorneys Kevin Slattum and Brian Cruz discuss Contract Disputes Act statute of limitations cases involving contractor incurred cost proposals and the increasing difficulties contractors now face in meeting the statute of limitations burden.

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In New Legislation Threatens to Further Erode Market Share of Non-Trade Union Contractors in California, Pillsbury attorneys Chris Rodriguez, Rob James, John Heisse, Andrew BluthDarcy Muilenburg and Marissa O’Connor discuss two new laws that go into effect in January 2016 that are expected to change the face of various public and private construction projects in California.  According to them, these new laws are part of an ongoing effort by the State Building and Construction Trades Council of California (SBCTC) to force public and private owners to use SBCTC-affiliated contractors for various construction work and to impose  obligations traditionally tied to public works—e.g., prevailing wage  requirements—even on private construction projects.

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As a result of California Senate Bill (SB) 854, all contractors have been required since April 1, 2015, to register with the California Department of Industrial Relations (DIR) to be awarded a public works contract, even if the project did not go out to bid.  A mandatory renewal deadline is approaching for licensees who work on public works projects. Contractors whose registration with the DIR expired June 30, 2015, and have ongoing public works projects or plan to bid on new ones, must pay a$300 renewal fee before October 1, 2015, or face an additional $2,000 late penalty after that date.  If you are not sure whether your public works registration with DIR is still active, you can check the active contractor registration search tool to locate and confirm your registration. And, the CSLB noted that if you were registered last year and have neither bid on nor worked on any public works projects on or after July 1, 2015, you can renew for this fiscal year without incurring a penalty.

Additional Source:  DIR, Public Works Contractor (PWC) Registration; CSLB Urges Public Works Contractors to Renew Dept. of Industrial Relations Registration before October 1 or Pay Hefty; DIR Frequently Asked Questions

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Pillsbury attorneys Julia Judish and Rebecca Rizzo have published their client alert titled The Changing Compensation Landscape for Government Contractors, New Executive Order Mandates Paid Sick Leave for Employees of Government Contractors, and Department of Labor Issues Final Rule on Contractor Pay Transparency. The Alert discusses (1) President Obama’s Executive Order issued on Labor Day that will require federal contractors and subcontractors to provide their employees working on covered government contracts with up to 7 days of paid sick leave per year, effective for federal contracts entered into on or after January 1, 2017, and (2) the Department of Labor’s Final Rule on Executive Order 13665 issued on September 11, which amends Executive Order 11246 to prohibit “pay secrecy policies and actions” for government contractors and subcontractors, effective January 11, 2016.

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The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in late September 2013 published a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 C.F.R. Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities, and requires them to take affirmative action to recruit, hire, promote, and retain these individuals. The new Section 503 regulations became effective on March 24, 2014, except for certain contractors with a written affirmative action program (AAP) in place.  Recently, the OFCCP posted a checklist tool designed to assist contractors to assess their compliance with the Section 503 AAP requirements.  OFCCP cautions that using the checklist does not ensure compliance, however, it should help contractors to enhance their awareness of their AAP obligations and alert them to potential compliance problems. Continue reading

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In a case that does not seem to have attracted much notice, the U.S. District Court for the District of Columbia issued a very long opinion rejecting the arguments made by a number of major business trade groups that the new National Labor Relations Board (NLRB) union election rules exceed the agency’s statutory authority, are arbitrary and capricious and violate employers’ rights under the First and Fifth Amendments to the Constitution.  This case is Chamber of Commerce of the United States, et al. v. NLRB, decided July 29, 2015. Continue reading

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Anyone having a business relationship with the U.S. Government who believes the Government or one of its representatives has acted, or failed to act in such a manner as to cause harm, should be aware of the restrictions placed on governmental liability by the Federal Tort Claims Act, especially the discretionary function exception to liability as interpreted by the courts.

On July 27, 2015, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of a lawsuit filed under the Federal Tort Claims Act (FTCA) against the United States and the National Park Service following the death of a visitor to the Olympic National Park in the State of Washington.  The case is Chadd v. United States, et al..  A large, wild mountain goat was known by National Park Service personnel to pose a threat to anyone at any time and, in 2010, it fatally attacked a visitor to the Olympic National Park, and only then was it “destroyed.”  Continue reading

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Recently, Pillsbury attorneys Fred Lowell , Emily Erlingsson, Anita Mayo and Kathy Donovan published their client alert titled D.C. Circuit Upholds 44-Year-Old Ban, The answer is still “no” for individual federal contractors wishing to contribute to federal candidates and parties. The Alert discusses the U.S. Court of Appeals for the District of Columbia Circuit’s recent decision in Wagner, et al., v. Federal Election Commission, upholding the ban on individual federal contractor contributions to federal candidates and political parties. The same rationale should apply to corporate federal contractors. The Court of Appeals did not address the ban on federal contributions by corporate federal contractors or whether federal government contractors may make independent expenditures or contributions to Super PACs.

Additional Source: Federal Election Commission, Court of Appeals Issues Opinion in Wagner, et al. v. FEC