Category Archives: Government Contracts Law

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Internal Control Compliance: It’s More Than You Think

By now, everyone who has even a passing familiarity with the new “Contractor Code of Business Ethics and Conduct” clause that went into effect on December 12, 2008 knows that “internal controls” are important.  In fact, with the stakes under the new clause so high, many government contractor personnel can tell you that, under the … Continue Reading

Glass Houses and Stones – Does Anyone in Government Ever Try to Connect the Dots?

In its 2008 report on the Government’s financial consolidated statements released on December 15, the Government Accountability Office criticized “serious financial management problems at the Department of Defense, the federal government’s inability to adequately account for and reconcile intragovernmental activity and balances between federal agencies, and the federal government’s ineffective process for preparing the consolidated … Continue Reading

Federal Contractors Must Now Verify the Legal Work Status of Employees

Beginning on January 15, 2009, certain federal contractors will be required to utilize the E-Verify system to assure that employees assigned to work on federal procurement contracts and all new employees are authorized to work in the United States.  E-Verify is an Internet-based employment verification system administered by the Department of Homeland Security (“DHS”) designed … Continue Reading

Federal Circuit Strikes Down DOD Preferences For Minority Contractors As Unconstitutional; Consequences Uncertain

On November 4, 2008, the U.S. Court of Appeals for the Federal Circuit issued an opinion in Rothe Development Corporation v. Department of Defense, No. 2008-1017, 2008 WL 4779586, holding that: Congress lacked a "strong basis in evidence" of discrimination by the Department of Defense ("DOD") against socially and economically disadvantaged individuals and businesses (referred … Continue Reading

Sixteen Ways to Waive the Attorney-Client Privilege

Disclose attorney-client communications to relatives or friends Speak with your attorney (or client) in the presence of third parties Use your company’s computer to contact your personal attorney Tell corporate counsel about conversations with your personal attorney Disclose attorney-client communications to your personal accountant Disclose attorney-client communications to the company’s outside auditors or investment bankers … Continue Reading

Amicus Brief Filed In U.S. Supreme Court To Support Reversal Of Decision Holding That Any Government Contract Tainted By Fraud Is Void From The Outset

On April 30, 2008, the National Defense Industrial Association — a trade association whose membership includes 1300 defense contractors, many of whom are small businesses — filed an amicus curiae brief in support of a petition for a writ of certiorari at the U.S. Supreme Court. The amicus brief encouraged the Supreme Court to reverse … Continue Reading

Corporate Monitors in Deferred Prosecution and Non-Prosecution Agreements

In March 2008, the U.S. Department of Justice ("DOJ") issued guidelines for the selection, scope of duties, and duration of corporate monitors in cases of deferred prosecution and non-prosecution agreements.  Although such agreements have become increasingly common, the process pursuant to which monitors are selected has recently drawn scrutiny in the wake of a no-bid, … Continue Reading

“Standing Novation”, The Daily Deal, February 8, 2008

A government contractor participating in an acquisition transaction must comply with both commercial and government-specific regulations. And there are numerous issues unique to government contractors that threaten a successful closing. If not identified or mitigated in a timely fashion, a contractor might unknowingly assume liabilities or fail to consummate the deal altogether. One issue involves … Continue Reading

Foreign Corrupt Practices Act

Recently, the Government has been increasing its enforcement efforts under the Foreign Corrupt Practices Act, announcing that there are 60 active investigations in its pipeline and that five FBI agents have been assigned full time to FCPA enforcement.  In the last two years, more FCPA enforcement actions have been completed than in the prior ten … Continue Reading

FAR Proposes Mandatory Contractor Codes of Ethics and Business Conduct

For years, in-house counsel have struggled with how best to persuade their clients to establish codes of business conduct, implement training programs, and adopt systems for assessing contract compliance. While the wisdom of all three activities was obvious to lawyers, who have the benefit (or misfortune) of witnessing firsthand the pervasive impact of not doing … Continue Reading

Penalties For Unallowable Costs: Discretion Over Indiscretion

If discretion is the better part of valor, then administrative contracting officers must be feeling less valiant these days. When it comes to penalties for unallowable costs, ACOs and government auditors are beginning privately to admit what many contractors already know from experience – enforcement of FAR 42.709 is on the rise.  This article is designed … Continue Reading

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