Articles Posted in Government Contracts

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The endless variety of federal regulatory programs are subject to the requirements of federal administrative law, i.e., the Administrative Procedures Act (APA). The APA is chiefly the province of the U.S. Court of Appeals for the District of Columbia Circuit. In a recent case involving the U.S. Department of Energy’s (DOE) implementation of a clean energy loan program, the District Court believed, following the conclusion of hearings in the court, that appropriate redress would result if the complaint was remanded, at DOE’s request, for additional review by DOE. When those proceedings were unsuccessful, the District Court dismissed the complaint. The Court of Appeals has now ruled that the requested remand should not have been granted, consistent with earlier precedential rulings by the Court of Appeals.

On May 19, in Limnia, Inc., v. U.S. Department of Energy, the Court of Appeals, returning the matter to the District Court to resolve Limnia, Inc.’s challenge to DOE’s denial of its clean-energy loan applications, confirmed that although “[a] district court has broad discretion to decide whether and when to grant an agency’s request for a voluntary remand,” “a voluntary remand is typically appropriate only when the agency intends to revisit the challenged agency decision on review.” In Limnia, the DOE, instead, “offered to review any new applications Limnia chose to submit, assuming that Limnia remitted the then-required application fees” “even though a central allegation of Limnia’s complaint was that the Department had waived the application fee associated with the Loan Guarantee Program.

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In Federal Contractors Beware DHS Proposes Robust Cybersecurity Procurement Regulation to Safeguard Controlled Unclassified Information (CUI), my colleague Brian Cruz and I discuss the proposed Department of Homeland Security (DHS) procurement regulation to safeguard CUI and its internal inconsistencies/ambiguities.

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This is the first post in an ongoing series of posts on real estate and construction lending. Check back soon for more posts in our series.

In New York, contractors must be careful to file the correct type of lien to ensure they will be paid for their labor and/or materials. State law provides for two distinct liens: (1) a mechanic’s lien for labor or materials provided for private real property, and (2) a public improvement lien for labor or materials provided for public improvements. Knowing which lien applies is important at the beginning of the filing process, as there are significant differences in the coverage and requirements for each.

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On March 14, U.S. Federal Judge Royce Lamberth granted Halliburton’s motion for summary judgment and dismissed Mr. Barko’s claims against Halliburton, filed under the False Claims Act (FCA), which, along the way, resulted in important rulings protecting the attorney client privilege. The case is United States of America ex rel. Harry Barko v. Halliburton Company, et al. As a result of Judge Lamberth’s ruling, this long and protracted litigation may be nearing an end after twelve years and several decision by the federal district court and the U.S. Court of Appeals for the District of Columbia Circuit.

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Below is a brief summary of the Office of Management and Budget’s recently issued “America First, A budget Blueprint to Make America Great Again.”  The Blueprint only provides details on discretionary spending proposals. The full budget, to be released later this spring, will include specific tax proposals and a “full fiscal path.”

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Yesterday, the White House published a Presidential Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch directing the Director of the Office of Management and Budget, after a period of review and consultation with the agencies, to propose a plan to streamline the federal government’s executive agencies, both reorganizing governmental functions and eliminating unnecessary agencies. It may take a year to formulate.

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In Great Expectations,  DOJ holds anti-corruption compliance programs to a high standard in evaluating their credibility, our colleagues Bill Sullivan, Nancy Fischer, Aaron Hutman and Fabio Leonardi discuss the U.S. Department of Justice’s (DOJ) February 8 release of a list of important topics and sample questions that the Criminal Division’s Fraud Section has frequently found relevant in evaluating the adequacy of a corporate compliance program. The new guidance is intended to assist ethics and compliance officers in crafting effective corporate compliance policies and procedures, and signals how DOJ’s new compliance expert, Hui Chen, is expected to assess a company’s compliance program.

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Referencing Executive Orders issued by past administrations, on February 24, 2017, President Trump issued a new Whitehouse-300x225Executive Order: “Enforcing the Regulatory Reform Agenda.” The Executive Order establishes new procedures and timelines by which most federal administrative agencies must conduct their regulatory planning and review.

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In its recent Atlantic Systems decision, the Government Accountability Office clarified whether an agency is required or simply has discretion to credit past performance references submitted on behalf of an offeror’s proposed subcontractor. The answer: it depends on the type of procurement. For more information, read our  Taking Credit for Subcontractor Past Performance GAO clarifies when an agency may decline to evaluate a proposed subcontractor’s past performance references.

Additional Source:  Matter of Atlantic Systems Group, Inc., File B-413901; B-413901.2, Decision (Jan. 9, 2017)

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In Brexit and Procurement, Pillsbury partner Tim Wright discusses the UK Government’s January 23 publication of a 132-page strategy green paper—or consultation document—entitled Building our Industrial Strategy. The paper sets out the Government’s “buy British” plan aimed at helping UK-based suppliers, supply chains and infrastructure companies when
bidding for public sector contracts. The paper confirms that focusing Government buyers on “social and economic factors” when designing their procurements will “encourage innovative solutions and maximise the positive impact of public procurement on strengthening the [UK’s] economy.”