Articles Posted in Government Contracts

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In A New Cybersecurity Regime and a New Regulation to Mandate Secure Information Systems for Government Contractors, Cybermy colleague Travis Mullaney and I discuss Congress’ recent enactment of a wave of legislation to address ongoing cybersecurity threats, the Executive Branch’s recent adoption of new cybersecurity regulations, and other Federal initiatives that are underway and that will bring additional promised change requiring enhanced cybersecurity protections. In our Advisory, we discuss what government contractors need to do to prepare for these changes.

Photo:  Intel Free Press, Computer Security, Taken Sep. 4, 2012 – Creative Commons

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In Awardee Protests: A New Horizon?, my colleague John Jensen and I discuss a new decision from the U.S. Court of Federal Claims — National Air Cargo Group , Inc., v. U.S. — that opens the door to the possibility of a bid protest by an awardee under a multiple-award indefinite delivery, indefinite quantity (IDIQ) contract. Previous decisions had held that a multiple-award IDIQ awardee lacks standing to protest the government’s award of additional contracts.

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On April 15, 2016, the Government Accountability Office (GAO) issued a proposed rule in the Federal Register that would amend its current bid protest regulations, codified at 4 C.F.R. Part 21. The proposed rule adds a degree of formality to the protest process, but overall the rule mainly codifies or clarifies existing protest practices. In Proposed Changes to GAO Bid Protest Rules: Greater Formality, Overall Familiarity, my colleagues John Jensen, Dick Oliver, Meghan Doherty and I summarize the key proposed amendments.

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In False Claims Act “Implied Certification” Update: Supreme Court Oral Argument Forecasts Continued Vitality of Controversial Doctrine, we, along with our colleague Danielle Vrabie, report on the recent oral argument before SCOTUS,supremecourt in United Health Services v. United States ex rel. Escobar, No. 15-7, a case expected to resolve the current split among federal courts of appeals on the so-called “implied certification” theory of liability under the federal False Claims Act (FCA). SCOTUS’ decision, whatever it is, will have an enormous impact on the federal contractor and subcontractor community. If SCOTUS follows the expansive interpretation of implied certification endorsed by the First Circuit in Escobar, then federal contractors and subcontractors will be vulnerable to the risk that the government will escalate any lack of contract compliance into an FCA investigation.

Additional Source: Supreme Court to Hear False Claims Act “Implied Certification” Appeal; SCOTUS Expected To Resolve Circuit Split on Implied Certification Under FCA

Photo:  Ryan Wick, Supreme Court Room, Taken December 29, 2009 – Creative Commons

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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.