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

By Jonathan S. Aronie and Christopher M. Loveland

Search for the phrase False Claims Act on the Internet, and you will be hit with a barrage of websites telling you how easy it is to bring a fraud case against a Government contractor. Sadly, these websites are right. The bar to bringing FCA claims has been lowered to such an extent over the past 5-10 years that the Act practically invites frivolous lawsuits. Thus, it is with great pleasure that we report that at least one court – the United States District Court for the District of Massachusetts – has taken a step toward restoring at least some common sense to application of the statute.
 

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By Bethany Hengsbach

An often-overlooked provision in the financial reform legislation now before Congress would allow employee whistleblowers to receive a reward of up to 30% of the fines collected by the U.S. Securities and Exchange Commission (“SEC”) and the U.S. Department of Justice (“DOJ”) from corporations who violate the Foreign Corrupt Practices Act (“FCPA”). We have reported in this blog on several occasions the increase in FCPA enforcement by the government in recent years. The passage of a bill containing this proposed whistleblower provision could lead to even more government enforcement, as well as multi-million dollar awards to whistleblowers.
 

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By Keith R. Szeliga

As the economy begins to recover, the number of corporate transactions between Government contractors no doubt will increase. If your company is positioned as a potential acquirer or a potential target, you should be aware of a recent Government Accountability Office (“GAO”) decision holding that entering into negotiations for a corporate transaction can give rise to an organizational conflict of interest (“OCI”) well before, and potentially whether or not, the transaction actually occurs. See McCarthy/Hunt, JV, B-402229, Feb. 16, 2010, 2010 CPD ¶ 69.
 

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By John S. Tobey

On April 22, 2010 the Defense Acquisition Regulation Council proposed to amend the Defense Acquisition Regulation Supplement (“DFARS”) to provide uniform guidance and tighten existing requirements for organizational conflicts of interest (“OCIs”) by contractors in major defense acquisition programs.  See 75 Fed. Reg. 20,954 (April 22, 2010). The proposed rule implements section 207 of the Weapons System Acquisition Reform Act of 2009 (the “Act”) (Pub. L. 111-23), which directs the Secretary of Defense to revise the DFARS to provide both uniform guidance and tighten existing requirements related to OCIs to ensure that advice from contractors comes from sources that are objective and unbiased. The Act also authorizes limited exceptions to ensure that the DoD has continued access to highly qualified contractors.
 

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By Jonathan S. Aronie  & Christopher Noon

Over the years, contracting officers have exhibited a promiscuous tendency to include non-Schedule items in GSA Schedule purchases. The many GSA Schedule procurements seeking $10,000 in Schedule items and $50,000 in non-Schedule “incidental” items did not go unnoticed by the OIG. The primary concern being that those $50,000 items should be properly competed – something that many agencies sought to avoid through their use of the Schedules program.
 

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