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Procurement Collusion Strike Force

The Procurement Collusion Strike Force, formed by the Department of Justice in 2019, is ramping up enforcement pressures against government contractors. The Strike Force brings together the DOJ Antitrust Division criminal offices, state Attorneys General, and federal agencies such as the Department of Defense and Federal Trade Commission.[1] The Strike Force is an effort to crack down on anticompetitive activities in public procurement, which the DOJ views as particularly susceptible to the costs of collusive activity.[2] The Department was already devoting significant resources to public procurement crimes,[3] and the Strike Force represents an intensified, all-hands approach to enforcement.…

Continue Reading Government Contractors Facing Increased Antitrust Scrutiny

The United States is engaging in a new form of warfare. Russia invaded Ukraine just over two months ago and, rather than join the fight directly by sending troops to defend Ukraine, the United States is fighting indirectly by engaging in unprecedented financial warfare against the Russian Federation. The initial export and sanctions actions were swift and severe – but somewhat expected. As the invasion persists, the U.S. Federal Government and individual States also have begun to leverage procurement policy to amplify the financial harm to Russia. This Guide will try to help make sense of the current efforts targeting Russia, the potential impact to government contractors, and proactive steps to mitigate risk.
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Continue Reading The Government Contractor’s Guide to (Not) Doing Business with Russia

The United States Department of Justice (DOJ) released updated guidance regarding its Evaluation of Corporate Compliance Programs on June 1, 2020.  The release comes just over a year since the guidance was last updated in April 2019.[1]  While these latest changes are less extensive than the most recent ones, there are some key differences that suggest the DOJ may be shifting some areas of focus when it comes to assessing the effectiveness of corporate compliance programs.
Continue Reading DOJ Updates Corporate Compliance Guidance

In 1657, mathematician Blaise Pascal commented in a letter to his church leaders “I have made this longer than usual because I did not have time to make it shorter.” More than 100 years later, another Frenchman, Napoleon Bonaparte, offered a similar remark to his valet as he prepared to head out for battle. “Dress me slowly,” he said, “I’m in a hurry.” The irony of the quotations makes people smile, but few quibble with their underlying truthfulness. Often, the more in a hurry you are, the more you need to slow down.
Continue Reading Using “Prospective Hindsight” To Identify And Mitigate Risks During A Crisis

The devastating economic impact of the COVID-19 pandemic already has set in, with the future of thousands of businesses hanging in the balance.  Big and small businesses alike are finding it difficult to cope with the downturn.  The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) provisions related to small business loans provide a glimmer of hope.  Among other forms of economic relief, the CARES Act created the $349 billion Paycheck Protection Program (“PPP”) to provide funding to assist small businesses impacted by the pandemic.  After the initial allocation of PPP funds was exhausted the President signed a bill providing an additional $484 billion in relief, including $310 billion for the PPP, on April 24, 2020[1].  It may turn out for some businesses, however, that these provisions will be nothing more than fool’s gold.  The U.S. Small Business Administration (“SBA”) loan programs, including the PPP under the CARES Act, only are available to qualifying businesses that strictly comply with complex rules related to the size of the business, including its employee count, financial condition, affiliations, control and ownership, and industry classifications.  Businesses that reflexively jumped at the SBA money grab without discipline or compliance are at risk of aggressive government enforcement that surely will follow.
Continue Reading Small Business Money Grab Under the CARES Act Brings Enforcement Risks

There is more than $2 trillion on the line and the multi-trillion-dollar question is: Who’s minding the store?  On March 27, 2020, in response to the financial set-back created by the novel COVID-19 pandemic, President Trump signed into law the more than $2 trillion Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) – by far the largest economic relief package in U.S. history.[1]  The CARES Act’s purpose is to keep the U.S. economy afloat and provide relief to struggling Americans, large corporate sectors, and small businesses while the nation battles this pandemic.  With $500 billion allocated for big corporations, $377 billion for small businesses, and another $153.5 billion for healthcare, these relief moneys (like with most government funds) are sure to come with strings attached in the form of complex regulations and substantial oversight, with enforcement not far behind.
Continue Reading The CARES Act – Who’s Minding the Store?

COVID-19 (a.k.a. the Coronavirus) is upon us and it looks like it is here to stay, at least for the foreseeable future.  In January, the Department of Health and Human Services declared the Coronavirus outbreak to constitute a Public Health Emergency, and on March 13, 2020, President Trump declared it a National Emergency.  The President noted that the spread of the virus “threatens to strain our Nation’s healthcare systems.”  As medical needs surge coupled with increases in state and city shutdowns to combat and contain the virus, a drain on government resources is almost certain.  As such, in the wake of the Coronavirus outbreak, many companies are looking for ways to help, and some are willing to do so at no cost through free goods and services to the United States Government in hopes of alleviating such strain.  Many companies, however, fear that such gifts might be prohibited under federal gift rules and the Antideficiency Act (an Act originating in the 1880s that, in some cases, prevents the Government from accepting voluntary services). This article explores how companies can provide free goods and services to the Government within the strictures of applicable statutes and regulations.
Continue Reading Gifting Goods & Services to the U.S. Government in the Wake of the Coronavirus Outbreak

A January proposal to give banks compliance slack floated by a high-ranking Federal Reserve Board (“FRB”) official has not yet gained the traction its supporters had hoped for.
Continue Reading Fed’s Vice Chair for Supervision Proposes a Deregulatory Approach to Limit the Scope of “Matters Requiring Attention” used in Bank Examinations

Last week, we (Ryan and Jonathan) published the COVID-19 Federal Contractor’s Survival Guide in the Coalition For Government Procurement’s Friday Flash. The Guide was very well received – perhaps because it didn’t once instruct anyone to wash his/her hands – and several readers asked us to expand it to cover additional topics and new developments. Because the COVID-19 contracting landscape is changing so fast, we agreed an update made sense. To make the update as comprehensive as possible, we have retained the information from the original Survival Guide, and supplemented it with a wealth of new information, including answers to the questions asked during last week’s Coalition Survival Guide webinar, which is available for free download from the Coalition here.

Thus, without further ado, we offer you the COVID-19 Federal Contractor’s Survival Guide 2.0.
Continue Reading COVID-19 Federal Contractor’s Survival Guide 2.0

On February 10, 2020, the U.S. Court of Appeals for the Federal Circuit issued its long-awaited decision in Acetris Health LLC v. United States, No. 2018-2399 (Feb. 10, 2020).
Continue Reading What Does it Mean to Manufacture? Federal Circuit’s Acetris Decision Fundamentally Alters Trade Agreements Act Compliance

Selling drugs to the Government just got a lot simpler.  In Acetris Health LLC v. United States, No. 2018-2399 (Feb. 10, 2020), the Federal Circuit opened the Government door…
Continue Reading Federal Circuit Changes the Game for Selling Single-API Drugs to the Government