The Future of COTS Procurement: The Proposed Section 846 Business Models

On March 16, 2018, the General Services Administration (“GSA”) and the Office of Management and Budget (“OMB”) released their Phase 1 Implementation Plan (the “Plan”) for “Procurement Through E-Commerce Portals” as directed by Section 846 of the National Defense Authorization Act for FY 2018. As we have written on this blog many times before, Section 846 (or Section 801 as it was known previously) will change the way the Federal Government buys commercially-available-off-the-shelf (“COTS”) products under the Simplified Acquisition Threshold (“SAT”). Section 846 directs GSA to establish one (or several) “e-commerce portals,” owned and operated commercially, through which the Government will procure COTS products under the SAT. The Plan is the general public’s first glimpse of how GSA envisions this program working, and the first of several critical steps to bring the “e-commerce portals” program online. Continue Reading

South Korea Steps Up Oversight of Cryptocurrency Exchanges

In January 2018, the Korea Financial Intelligence Unit (“KoFIU”)[1] and the Financial Supervisory Service (“FSS”)[2] conducted a joint inspection of six Korean banks that provide trading accounts for cryptocurrency exchanges. The joint inspection was conducted to collect information and to provide guidance regarding servicing these types of exchanges. The inspection represents a significant step by the Korean authorities to regulate virtual-currency exchanges in one of the most active cryptocurrency markets. According to a report by the BBC, South Korea is the world’s third-largest market for bitcoin trades, behind Japan and the United States. In January 2018, CNBC reported that major cryptocurrencies like bitcoin and ethereum are priced higher in Korea’s exchanges. As an example, the report cited a bitcoin sale on a Korean local exchange, Bithumb, priced at $17,169.65 per token, a 31% premium to the CoinDesk average price. Continue Reading

New Legislation Introduced in 2017 Signals the Beginning of a Strong Push for AML Reform

There is universal acknowledgement that anti-money laundering (“AML”) monitoring has become progressively costlier (both in terms of time and money) since the Bank Secrecy Act (“BSA”) was passed nearly five decades ago, and that compliance has become increasingly burdensome, especially for smaller regional and community institutions. According to the Financial Crimes Enforcement Network (“FinCEN”), nearly one million suspicious activity reports (“SAR”) were filed in 2016 (up from 669,000 in 2013). According to a 2016 report by the Heritage Foundation, the cost of compliance with current AML rules could be as much as $8 billion a year. Notwithstanding the tremendous resources spent on AML compliance, money laundering is still rampant. The U.N. has estimated that the amount of money laundered every year is between $800 billion and $2 trillion dollars. However, according to a 2011 report issued by the U.N. Office on Drugs and Crime, less than one percent of this amount is seized by law enforcement. Continue Reading

Supreme Court Resolves Circuit Split on Scope of Whistleblower Protections

On February 21, 2018, the Supreme Court issued a pivotal decision narrowing the definition of a whistleblower under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank,” or the “Act”). In Digital Realty Trust, Inc. v. Somers, the Court unanimously held that to qualify as a whistleblower, a person must first report a securities law violation to the Securities and Exchange Commission (the “SEC”). 583 U.S. __, No. 16-1276, 2018 WL 987345 (Feb. 21, 2018). Continue Reading

NY/NJ Port Authority Implements New FCA Policy

On January 17, 2018, the New York/New Jersey Port Authority enacted its own vigorous False Claims Policy that punishes contractors who intentionally make material false statements about work they performed or goods they provided to get paid. The Policy incentivizes reporting of False Claims by offering up to 25% of the amount recovered to whistleblowers. The Policy can be found here. The Policy is one of six new integrity measures the Port Authority has enacted over the last six months to protect the substantial investments that it committed to in its 2017-2026 Capital Plan.

 

Contractors Beware: The 2018 NDAA Ushers In New Changes Affecting IP Rights

The 2018 National Defense Authorization Act (“NDAA” or “Act”) includes changes that could make the Department of Defense (“DoD”) a more effective and knowledgeable purchaser of Intellectual Property (“IP”) and promote more flexible IP acquisition strategies. These same changes also could encourage Contracting Officers to insist on broader IP rights and delivery requirements. While it has always been important for contractors to protect their IP (click here for our list of “Top 10 Ways to Lose Rights in Your IP”), with the passage of the 2018 NDAA, avoiding the loss of valuable IP rights could require even more sophistication and vigilance. Continue Reading

“Brand Memo” Prohibits US DOJ From Converting Agency Guidance Into Binding Legal Obligations In Civil Enforcement Actions

On January 25, 2018, Associate Attorney General Rachel Brand issued a memorandum (the “Brand Memo”) limiting the use of agency guidance documents in affirmative civil enforcement cases. The memorandum builds on Attorney General Jeff Sessions’ November 16, 2017 memorandum prohibiting DOJ from promulgating guidance documents that create rights or obligations that are binding on regulated parties. When DOJ issues a guidance document with voluntary standards, it must also contain a statement that noncompliance is not subject to future DOJ enforcement actions. The Brand Memo makes clear that this principle also applies to other agencies’ guidance documents. In other words, agency guidance, in and of itself, cannot create new binding legal requirements.

Continue Reading

Presumption of Declination with Voluntary Disclosure, Cooperation, and Remediation of FCPA Violations

Deputy Attorney General Rod J. Rosenstein recently announced a revision to the U.S. Department of Justice (“DOJ”) policy on corporate enforcement of the Foreign Corrupt Practices Act (“FCPA”). The revision codifies a pilot program established during the Obama administration, which allows some companies that voluntarily disclose possible violations of the FCPA to avoid criminal prosecution. The new Corporate Enforcement Policy will be codified in the U.S. Attorney’s Manual. These announcements came during Mr. Rosenstein’s speech at the 34th International Conference on the FCPA, on November 29, 2017. Mr. Rosenstein’s overall theme was that global corruption negatively impacts business, society, and governments, and he asked corporate America to help fight corruption through compliance programs, as a matter of American safety and security. Continue Reading

Confused by the Evolving Travel Ban? Here’s a Cheat Sheet with the Latest Guidance

While the Travel Ban continues to move up and down the federal court system, here are the latest rules governing travel for citizens of the affected countries as a result of the U.S. Supreme Court’s lifting of the lower courts’ injunctions on December 4, 2017, a December 22 ruling by the Ninth Circuit invalidating the latest travel ban but not enjoining it, and recent action by a Federal District Court in Seattle partially lifting the refugee ban on December 23, 2017: Continue Reading

Clearly Erroneous Audit Assertion – An Expensive Thorn in Contractors’ Sides

Auditing by the Defense Contract Audit Agency (“DCAA”) is a ubiquitous cost of doing business with the Department of Defense, and one which many defense contractors have come to dread. Unfortunately, far too often the DCAA’s audit reports rely upon faulty evidence and/or unreasonable interpretations that ignore the plain language of contracts, procurement regulations, and existing decisional law. When this happens, contractors typically have no choice but to engage in the costly process of challenging the audit findings and, when contracting officers lack the will to butt heads with the DCAA, to pursue litigation (and incur unallowable costs) to obtain relief from noncompliance determinations that never should have issued in the first place. Continue Reading

LexBlog