New Rules for Filing Protests at GAO and New DFARS Debriefing Requirements

GAO’s New Electronic Protest Docketing System

GAO finally has unveiled its long-awaited Electronic Protest Docketing System (“EPDS”). Effective May 1, 2018, all new protests (excluding those containing classified material) must be filed using GAO’s EPDS. EPDS is designed to provide a more seamless and efficient process for all participants. The system provides real-time notice to federal agencies of a new protest filing, which serves as the Agency’s notification to stay performance of the newly-awarded contract as required under the Competition in Contracting Act (“CICA”). Since most government contractors hire outside counsel to file protests, this change will not have a large impact on contractors. Contractors should be aware, however, that GAO also has implemented a new $350 filing fee for all new protests. All subsequent filings and supplemental protests do not require a filing fee. Funds from this filing fee will be used to pay for the operation and maintenance of the EPDS.         Continue Reading

New York’s AG Enters the Cryptocurrency Ring as Federal, State Authorities Find Regulatory Footing

On April 17, 2018, the New York State Attorney General (“NYAG”) sent a “Virtual Markets Integrity Initiative Questionnaire” to 13 companies operating virtual currency trading platforms. The questionnaire consists of 34 questions covering a number of topics, including ownership and control, operation and fees, trading policies and procedures, outages and other suspensions of trading, internal controls, and privacy and money laundering.   Continue Reading

VA Streamlines MSPV-NG Acquisition through Distribution and Supply Agreements

The Department of Veterans Affairs issued a Justification and Approval (J&A) for Other than Full and Open Competition on April 12, 2018, to allow prime vendors currently performing “distribution” contracts under the Medical/Surgical Prime Vendor Next Generation program (MPSV-NG) to choose potential suppliers. Currently, the VA conducts a more traditional procurement process to identify supply sources and awards BPAs to suppliers who can meet the VA’s price requirements. The VA does not place orders under the BPAs; rather the BPAs serve as authorization for prime vendors under the program to enter distribution agreements with those suppliers, and the prime vendors distribute those products to VA facilities. Under the J&A, which converts these existing contracts to “distribution and supply” contracts, prime vendors now will identify potential sources for clinical products and submit them, along with pricing information, to the VA Strategic Acquisition Center and the MSPV Program Office for approval. Once both entities approve, the VA will add those items to the Government’s master product list, and prime vendors may execute distribution agreements with those suppliers and distribute the items to VA facilities as they do currently.   Continue Reading

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

LexBlog

By scrolling this page, clicking a link or continuing to browse our website, you consent to our use of cookies as described in our Cookie and Advertising Policy. If you do not wish to accept cookies from our website, or would like to stop cookies being stored on your device in the future, you can find out more and adjust your preferences here.

Agree