Government Contracts, Investigations & International Trade Blog : Government Contracts Lawyer & Attorney : Sheppard Mullin Law Firm : Bids, Licenses, Awards, Conflict of Interest.

By: David S. Gallacher

2011 was a banner year for U.S. export control laws. The Obama administration has vowed to streamline and reform the bloated U.S. export control system – promising to build "higher walls" around a narrower universe of goods and technologies requiring export licenses. Following is a summary of ten of the key reforms to U.S. export laws that took place (or were proposed) in 2011. 
 

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By: W. Bruce Shirk

Our previous discussions of the Federal Performance and Integrity Information System (“FAPIIS”) posted here in June 2010 and March 2011, urged contractors generally to manage affirmatively FAPIIS and, specifically, to:  (i) place a high priority on entry and updating of data into FAPIIS; (ii) take advantage of every opportunity to comment on, explain or rebut information posted in FAPIIS; and (iii) be alert for Government posting of harmful information, in particular information potentially protected from disclosure by a Freedom of Information Act ("FOIA") disclosure exemption, Exemption 4.  It is now apparent that, in light of a recent action of the Civilian Agency Acquisition Council and the Defense Acquisition Regulation Council (“the Councils”), contractors who successfully manage FAPIIS will be those contractors who not only implement the above steps but do so very quickly and are, as well, hyperalert for and prepared to react immediately to Government posting of potentially harmful information.

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By: David S. Gallacher

Just in time for the end-of-year push to fund the Government and to "create more jobs," members of Congress and President Obama had a rare moment of consensus when they unanimously(!) repealed an extremely unpopular withholding requirement that has been haunting recipients of federal funds since 2005. The "3% Withholding Repeal and Job Creation Act" was signed into law on November 21, 2011 (Pub. L. No. 112-56, Title I), eliminating a requirement to withhold 3% on most payments to contractors and grant recipients. While there are many in Government and industry alike who are ecstatic at the passage of the Act, the Ghost of Christmas Future warns that this specter of "withholding" may not have yet fled the scene. Like poor, chained Jacob Marley from Dickens' A Christmas Carol, industry may yet find itself captive, bound, and double-ironed by future Congressional plots to confiscate funds from government contractors. Miserly grasping for every penny, one can almost hear the federal Government grumbling, "Bah! Humbug!"

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Keith Szeliga

"New Government Contractor Rules on Personal Conflicts of Interest and Revolving Door Restrictions: Implementing Internal Controls to Comply With FAR PCI Requirements and DoD Post-Employment Restrictions."

CLE Webinar/Teleconference

Wednesday, February 1, 2012, 1pm – 2:30pm, EST

http://www.straffordpub.com/products/new-government-contractor-rules-on-personal-conflicts-of-interest-and-revolving-door-restrictions-2012-02-01

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W. Bruce Shirk

"Hot Topics in Government Contracting"

Medicare Executives Conference, Blue Cross and Blue Shield Association

Wednesday, January 25, 2012, 1:30pm, Hyatt Regency Baltimore Inner Harbor, Baltimore, MD
 

http://www.governmentcontractslawblog.com/uploads/file/GBS Meeting 012512

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By: Anne Perry

While the number of protests has steadily increased over the past five years, the success rate for protesters in Fiscal Year 2011 was at its lowest during that time. GAO reported to Congress its Bid Protest Statistics for Fiscal Year 2011 on November 15, 2011 and it reflects a bit of a tougher year for protesters but no real significant changes from last year.

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By: Townsend Bourne

In a bid protest decision regarding the propriety of agency corrective action, GAO recently carved out a new exception to its general rule that those who do not participate in a protest that engenders corrective action are not interested parties to challenge the corrective action. In North Wind, Inc.; Earth Resources Technology, Inc., B-404880.4 et al., 2011 CPD ¶ 246 (Comp. Gen. Nov. 4, 2011), North Wind, Inc. (“North Wind”) protested NASA’s initial award of a contract to Navarro Research and Engineering, Inc. (“Navarro”) and subsequently raised additional challenges to the award in a supplemental protest that followed receipt of documents from the Agency. In response to North Wind’s supplemental protest, NASA decided to take corrective action. Earth Resources Technology, Inc. (“ERT”), another disappointed offeror in the competition, did not initially file its own protest challenging the award to Navarro.

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By: John W. Chierichella
 

CAS 402 has long provided that B&P costs incurred pursuant to a specific requirement of an existing contract may be distinguished from B&P generally and treated as direct costs of the requiring contract. As CAS 402-61 states:

The circumstances are different because the costs of preparing proposals specifically required by the provisions of an existing contract relate only to that contract while other proposal costs relate to all work of the contractor.

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By: Scott Maberry and Reid Whitten

On November 21, 2011, President Barack Obama signed Executive Order 13590 expanding sanctions against non-U.S. companies doing business in Iran. Under the new rules, whole sectors of business between Iran and third countries are now subject to U.S. sanctions. Overnight, non-U.S. companies working in Iran—in sectors not previously subject to sanctions—found their contracts subject to punishment under U.S. law. Many of these companies had invested significant resources in making sure their transactions in Iran did not fall afoul of U.S. sanctions, some having met directly with U.S. Government agencies, including the U.S. State Department, to understand the rules. These companies must now again adjust the aim of their compliance efforts to hit moving targets.

Fortunately for these companies, it appears likely that in the near-term, contracts already in place and compliant with the rules at the time of the November 21 order will not be the target of enforcement actions.
 

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By: Thad McBride and Mark L. Jensen

Introduction: On October 24, 2011, a three-judge panel of the U.S. Court of Appeals for the Second Circuit released an opinion in United States v. Banki, No. 10-3381 (2d Cir. Oct. 24, 2011) that reversed convictions of Defendant Mahmoud Reza Banki on charges of conspiring to violate the Iranian Transaction Regulations (“ITR”) and aiding and abetting violations of the ITR.[1]  In doing so, the Court contradicted the position of the U.S. Government in a manner that may have important consequences for how the Government pursues sanctions enforcement matters going forward.

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