In the first two parts of this series, we have summarized what constitutes an Organizational Conflict of Interest (“OCI”) in government procurements, and discussed OCIs’ importance in the bid protest arena. But lest you think that, having passed the protest hurdle, you are now free from all harm caused by having an OCI, we now address potential post-award liability stemming from undisclosed and unmitigated OCIs. Contractors found to have undisclosed and unmitigated OCIs, that either existed before award or arose thereafter, can face a variety of bad outcomes—contract termination, suspension or debarment, and liability for fraud under the False Claims Act (“FCA”). Recall that OCIs come in three forms:

Continue Reading Organizational Conflicts of Interest – Part 3: The Next Target for FCA Enforcement

We all know that failure to submit your bid proposal on time typically results in rejection. And the list of exceptions to this “late is late” rule is very short, providing only four notable exceptions: (1) an offeror has acceptable evidence of government control of a proposal; (2) an offeror can establish a systemic failure of government procedures resulting in multiple instances of lost information; (3) if electronically submitted, a proposal was received by government infrastructure by 5:00 p.m. one working day prior to the proposal submission date; and (4) if there is only one offeror. But what if you submitted your proposal on time and the agency’s server rejects the submission without bothering to inform you? And what if the basis for rejection was an undisclosed limitation within a server on email size? Does such delay qualify as an exception to the “late is late” rule? The answer depends on which forum you ask.

Continue Reading The Gap Widens Between COFC and GAO on Late is Late Rule

In an “update” that reads more like a teaser to a B Movie, the OMB on Friday advised that it will have more guidance on EO 14042 for us soon. What precipitated this official warning that more guidance would be forthcoming? Well, it seems that tomorrow (October 18, 2022) OMB expects the Southern District of Georgia to narrow the nationwide injunction prohibiting enforcement of EO 14042. This is the procedural step we’ve all been waiting for since the 11th Circuit issued its decision on August 26, 2022. In anticipation of the narrowed injunction, OMB announced it expects to release three new guidance documents in the near future:

Continue Reading EO 14042 Update 17.0 – Preview of Updated OMB Guidance

The FedRAMP Program Management Office is seeking comments on its draft FedRAMP Authorization Boundary Guidance, Version 3.0, released on September 14, 2022. The public comment period currently is open and closes on October 17, 2022.

Continue Reading Third Time’s The Charm – FedRAMP Releases Draft Authorization Boundary Guidance Version 3 for Public Comment

Last month, we began our three-part series on organizational conflicts of interests (“OCIs”) with an article discussing the different types of OCIs and how they can be mitigated. Now, in Part 2 of our series, we analyze how OCIs arise in bid protests. First, we explain how the Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”) review OCI protests. Then, we examine scenarios where OCI protests have been sustained, followed by a synopsis of OCI protest grounds that (almost) always will be denied. Finally, we conclude with a summary of key points to consider when faced with an OCI issue that arises during a bid protest.

Continue Reading Organizational Conflicts of Interests – Part 2: OCIs in Bid Protests

Per Executive Order 14028, Improving the Nation’s Cybersecurity, the Office of Management and Budget (OMB) issued a memorandum on September 14, 2022 requiring federal agencies to only use software from software producers that attest compliance with secure software development guidance issued by the National Institute of Standards and Technology (NIST).

Continue Reading Federal Government Outlines New Security and Attestation Requirements for Software

With apologies to Jaws II, just when you thought it was safe, the U.S. Court of Appeals for the 11th Circuit has released a shark back into the EO 14042 waters.

Continue Reading Just When You Thought It Was Safe To Go Back In The Water . . . The 11th Circuit Revives Executive Order 14042

Effective August 25, 2022, the U.S. Department of Defense (“DoD”) has issued two new changes to the Defense Federal Acquisition Regulation Supplement (“DFARS”) reinforcing national defense priorities that limit DoD

Continue Reading In the Interest of National Security – Two New DFARS Rules Reinforce Increased Scrutiny For Chinese-Origin Supply Chains

On August 5, President Biden signed two bills into law that extend to ten years the statute of limitations for civil and criminal enforcement actions for fraud on the Paycheck Protection Program (“PPP”) and Economic Injury Disaster Loans (“EIDL”). These two bills—the PPP and Bank Fraud Enforcement Harmonization Act of 2022 and the COVID-19 EIDL Fraud Statute of Limitations Act of 2022—were both passed by Congress with bipartisan support. 

Continue Reading Statute of Limitations for PPP and EIDL Fraud Extended to Ten Years

A federal court filing by a fintech company revealed that it has been under investigation by the Department of Justice (“DOJ”) in relation to its Paycheck Protection Program (“PPP”) loan approval practices for over a year. This rare disclosure of a pre-indictment DOJ investigation warns that the government is refocusing enforcement efforts to the fintechs and financial institutions that administered PPP loans.

Continue Reading Court Filing Reveals that DOJ Is Investigating Fintech’s Administration of PPP Loans