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

In a recent issue of our Blog, we reported on the new FAR requirements relating to the development and implementation of contractor ethics and compliance programs.  We are pleased in this issue to have been authorized by PriceWaterhouseCoopers to provide you with a reprint of its recent "A&D Technical Alert" relating to this issue.  The Alert, click here, includes PWC's principal points of contact on the issue -- Jim Thomas and Joe Barsalona -- and a link to the PWC site.

Our thanks to Jim, Joe and their colleagues for allowing us to provide their insights on an important development to readers who may not have received the original PWC distribution.

To learn more about PricewaterhouseCoopers please visit their website at www.pwc.com.

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Background on U.S. Trade Regulations and Export Laws

Many people say that U.S. foreign policy is a mess. While this point is clearly debatable, it seems clear that the U.S. laws, regulations, and executive orders attempting to implement U.S. foreign policy certainly are a mess. Nowhere is this "mess" more clearly evident in the U.S. regulatory scheme than with the U.S. export laws, which are a veritable maze of statutes, regulatory schemes, and inter- and intra-agency enforcement regimes. For U.S. companies selling in international markets, it is not always easy to figure out what is "right."

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For the second time in as many terms, the U.S. Supreme Court will consider a case testing the scope of the False Claims Act (FCA), 31 U.S.C. § 3729.  The High Court has agreed to review U.S. ex rel. Sanders, et al. v. Allison Engine Co., 471 F. 3d 610 (6^th Cir. 2006), cert. granted, 2007 WL 2374900 (Oct. 29, 2007), which held that the FCA applies to a contractor’s claim for payment, regardless of whether the claim was “presented” directly to the government.  The Court’s latest interpretive review of the FCA follows a decision last March clarifying the requirement that private FCA plaintiffs have direct and independent knowledge of their allegations in order to establish “original source” jurisdiction.  Rockwell Int'l Corp. v. U.S., 127 S. Ct. 1397 (2007).  Like Rockwell before it, Allison Engine merits close attention by companies doing business with the federal government.

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• Covered electronically stored information (ESI) is very broadly defined.
• Potential ESI includes: Internet web accounts, voice-mail servers, thumb drives, metadata, cell phones with messaging, and personal digital cameras.
• As soon as litigation is reasonably anticipated (not after it is filed):
  • Advise all relevant employees to preserve ESI;
  • Suspend automatic ESI destruction policies and programs.
• Meet early with counsel and ESI storage experts to address preservation and disclosure issues.
• Serious sanctions can be imposed for failing to protect ESI from routine destruction.
• Be prepared to address discovery of ESI very early in the litigation, including:
  • Where and how ESI is stored; and
  • How it will be produced.
• In general, ESI must be provided in a reasonably usable form or in the form in which it is ordinarily maintained.
• In general, you will not be required to produce ESI that is not reasonably accessible because of undue burden or cost.
• Manage the cost of producing ESI by developing a discovery strategy based on the new rules early in the process.

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