On August 24, the U.S. Court of Appeals for the Ninth Circuit, in U.S. ex rel. Scott Rose, et al., v. Stephens Inst., dba Acad. of Art Univ., affirmed the U.S. District Court for the Northern District of California’s order denying the defendant’s motion for summary judgment in a qui tam action brought under the False Claims Act. The Ninth Circuit address questions of law posed in the wake of the U.S. Supreme Court’s decision in Universal Health Serv., Inc. v. United States ex rel. Escobar, regarding the tests for establishing falsity and materiality.
The U.S. Court of Appeals for the Federal Circuit’s July 18 ruling, in Shell Oil Company, et al., v. U.S., may have brought to an end a long-running dispute over the impact on World War II government procurement contracts on the liability of major oil companies for the remediation costs at a major Southern California Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) site — the “McColl site.”
Today, our colleagues Alex Ginsberg, Glenn Sweatt and Kevin Massoudi published their Client Alert on a recently issued Special Inspector General for Afghanistan Reconstruction (SIGAR) Report that finds over $15 billion in waste, fraud and abuse. In New SIGAR Report Identifies “Waste, Fraud and Abuse” in Afghanistan, our colleagues identify key takeaways from the Report include:
- The Report reviewed public spending for Afghanistan reconstruction efforts and identified at least $15.5 billion in waste, fraud and abuse.
- The Report specifies that “fraud” accounts for less than 1% of this figure.
- The Report confirms that over 99% of the findings in the recent audit were characterized as “waste.”
- Further regulatory and enforcement actions may result for contractors that perform contracts in this region.
On June 20, 2018, the U.S. Court of Appeals for the Fourth Circuit decided the case of In re: KBR, Inc. Burn Pit Litigation, affirming the ruling of the U.S. District Court for the District of Maryland that the “political question” doctrine bars the plaintiff servicemembers’ personal injury lawsuits against Kellogg Brown & Root and Halliburton (KBR), government contractors providing environmental services to the U.S. military in Iraq and Afghanistan.
“The Constitution entrusts the President and Congress, not the courts, with the power to resolve political questions.”
Recently, our colleagues Glenn Sweatt and Alex Ginsberg published their Client Alert titled DFARS Clause Blocks Funding for Unsafe Projects in Afghanistan, Recently published regulation implements the FY17 NDAA to prohibit use of funds for DoD construction and infrastructure programs and projects in Afghanistan that cannot be safely accessed by U.S. Government personnel. Takeaways include:
- New rule prevents Government contracting officers from funding projects that are not able to be safely accessed by Government civilian or military personnel, as these may pose an increased risk of fraud, corruption or waste, or lack efficient oversight.
- The Government has awarded projects in Afghanistan at locations that Government personnel have not been able to safely travel to and access, leading to inefficient oversight and a profusion of disputes and claims.
- Waivers will be available at increasing thresholds, but any project over $40M will require waiver by the Secretary of Defense and Congressional notification.
Today, our colleagues Dick Oliver, Glenn Sweat and Brian Cruz published their Client Alert titled New Proposed DoD Cyber Guidance May Fuel Bid Protest Docket, Newly published draft DoD Guidance for Reviewing System Security Plans (SSP) and the “NIST SP 800-171 Security Requirements Not Yet Implemented” answer some questions but may also result in an increased protest docket due to ambiguous evaluation criteria. Key takeaways include:
- Industry has been seeking clarity on the Department of Defense’s cybersecurity clause, since its December 31, 2017 implementation date, particularly as it relates to how the Government will review a Contractor’s System Security Plan (SSP); the new guidance indicates the Government’s evaluation of Contractors’ SSPs will also be used as evaluation criteria in new contract awards.
- A growing list of Frequently Asked Questions has answered some questions, but more guidance was needed, and is being provided in the form of an SSP priority ranking matrix.
- Public comments on the proposed draft guidance are due May 31, 2018, and early contractor feedback is that the guidance is helpful but hardly dispositive of the myriad questions surrounding the new rule.
- The Government Accountability Office’s (GAO) recently issued final rule implements a formal electronic filing system and imposed a one-time, nominal filing fee;
- Other changes clarify ambiguities or conflicts in the prior regulations; and
- Changes take effect on May 1, 2018.
Today, our colleagues John Jensen, Dick Oliver, David Dixon and Alex Ginsberg published their Alert titled Defenders of the Debriefing, New DoD rules enhance contractors’ post-award debriefing rights. Takeaways include:
- New rules for all Department of Defense (DoD) agencies expand offerors’ rights in connection with post-award debriefings in federal procurements.
- Offerors now have 2 business days to submit questions to agencies after their debriefings begin, and the debriefings are not concluded until the agencies answer those questions, which they must do in writing within 5 business days.
- The protest clock for a disappointed offeror only begins to run after the agency answers the offeror’s questions.
The Office of Federal Contract Compliance Programs (OFCCP) has issued its Directive (DIR) 2018-01 as part of ongoing efforts to increase transparency of preliminary findings with federal contractors, and to achieve consistency across regional and district offices, standardizing the use of Predetermination Notices (PDN). A PDN is a letter that OFCCP uses to inform federal contractors and subcontractors (contractors) of OFCCP’s preliminary findings of employment discrimination. Directive 2018-01 provides a uniform protocol for OFCCP staff to follow for using PDNs in both individual and systemic discrimination cases.
Our colleague John Jensen recently published his Alert titled Proposals Should Carefully Address Pending Corporate Deals Lockheed Martin’s recent success in overcoming GAO protests shows that fully explaining a transaction in the works can be a key proposal element. In the Alert, John discusses the U.S. Government Accountability Office’s (GAO) recently announced denial of three protests filed by disappointed offerors Enterprise Services LLC, Accenture Federal Services LLC and CSRA LLC challenging the Social Security Administration’s award of an IT contract to Lockheed Martin Corp.