Government Contracts Law

2016 was a big year for the False Claims Act (FCA).  Total government recoveries were up; total new matters filed were up; and total new government-led FCA matters were up.  The Supreme Court issued multiple decisions relating to the FCA, including one—Universal Health Services, Inc. v. U.S. ex rel. Escobar, 136 S. Ct. 1989 (2016)—which will have dramatic ramifications for litigation relating to the FCA’s materiality standard.  The Supreme Court also denied certiorari in an important FCA case—U.S. ex rel. Purcell v. MWI, Inc., 807 F.3d 281 (D.C. Cir. 2015), reh’g en banc denied, cert. denied, 580 U.S. ___ (2017)[1]—in which the D.C. Circuit held that when a defendant adopts an objectively reasonable or plausible interpretation of an ambiguous regulatory term and the agency has not warned the defendant away from its interpretation via authoritative guidance, the FCA’s scienter element cannot be established.  (Note: We previously covered the Purcell decision on our FCA blog.  You can view our article, here.)  Although some of these developments may seem concerning, there is plenty of silver lining here for government contractors.
Continue Reading What’s Past is Prologue: How The FCA’s Eventful Year in 2016 Will Affect Government Contractors

Every now and then, the FAR Councils issue a Federal Acquisition Circular (FAC) – an update to the Federal Acquisition Regulation implementing a number of changes. Often these changes are rather pro forma. But occasionally, you get a Circular with many different (and interesting) issues. FAC 2005-67, issued in late-June 2013, with rules becoming effective in June and July 2013, is one such circular. We thought it would be helpful to highlight five of these rules that raise interesting and timely issues, especially where they may signal additional changes yet to come.
Continue Reading Lots of Little Things – FAR Updates from the Federal Acquisition Circular

By David Gallacher

On March 30, 2013, the U.S. District Court for the District of Columbia issued a decision imposing certain socio-economic contract requirements on subcontractors operating hospitals associated with the University of Pittsburgh Medical Centers. See UPMC Braddock, et al. v. Harris, Civ. 09-1210 (PLF) (D.D.C. Mar. 30, 2013) (“UPMC Braddock”). Even though the hospitals’ subcontracts did not include these socio-economic clauses, the court applied the age-old “Christian Doctrine,” which assumes that certain contract requirements reflecting a “significant or deeply ingrained strand of public procurement policy” will apply to a Government contract even if those requirements have been omitted from the text of the actual contract. See G.L. Christian & Associates v. United States, 312 F.2d 418, 426 (Ct. Cl. 1963). Even though no court has ever before held in the 50-year history of the Christian Doctrine that this legal rule applies to subcontractors (Christian and its progeny apply only to prime contractors doing business directly with the U.S. Government), the court has now radically expanded the doctrine.Continue Reading Playing Cards With a Government That Stacks the Deck – D.C. District Court Radically Expands The “Christian Doctrine” To Subcontracts

By John W. Chierichella

1. Understand the Basic Contract Requirement – Every contract lawyer will begin an assessment with a very simple, fundamental question, i.e., “What does the contract say?” Your obligation is to perform to the contract; nothing more; nothing less.
 

2. Identify Variances Between What the Contract Says and What You Actually Are Doing – If you are doing something other than what the contract actually says, you may be entitled to relief.Continue Reading The ABC’s of Government Contract Claims – 10 Ways to Maximize Your Chance of Success

By John Hynes

On November 2, 2012, the Sixth Circuit held that a 2009 amendment Congress made to the liability provisions of the False Claims Act ("FCA") applies retroactively to civil FCA cases pending as of June 7, 2008. U.S. ex rel. Sanders v. Allison Engine Co., Nos. 10-3818/10-3821, at *17-20 (6th Cir. Nov. 2, 2012).Continue Reading Sixth Circuit: FERA False Claims Act Amendment Applies Retroactively to Cases Pending as of June 7, 2008

By David Gallacher and Curt Dombek

Last year in January 2011, the President signed the 2011 National Defense Authorization Act (Pub. L. No. 111-383, Section 846), which included a “Buy American” requirement for photovoltaic devices being purchased by the U.S. Department of Defense (“DoD”). We previously discussed this new requirement in our blog. Twelve months later, the DoD has issued an interim rule to implement this new requirement. See 76 Fed. Reg. 18858 (Dec. 20, 2011). The interim rule appears to be straightforward, implementing exceptions and manufacturing requirements with which most companies are already familiar under the Buy American Act or the Trade Agreements Act, but there is some fine print of which all companies selling photovoltaic devices to the DoD should be aware.Continue Reading “Buy American” and Photovoltaic Devices – Interim Rule Issued by DoD

By David Gallacher

2012 will see changes regarding U.S. free trade agreements relating to, first, the dollar thresholds at which the various agreements apply to federal purchases and, second, the likely expansion of the scope of the World Trade Organization Government Procurement Agreement ("WTO GPA"). The updated dollar thresholds are important for government contractors because the thresholds determine when a contract is subject to the Buy American Act ("BAA") or the Trade Agreements Act ("TAA"). As to the WTO GPA, its expansion should provide significant increased access to the U.S and many of its trading partners in international procurements, although the hoped for accession of China to the WTO GPA remains stalledContinue Reading New 2012 Updates to U.S. Free Trade Agreements Expected; No Progress With China

By: Marko W. Kipa

The United States Court of Federal Claims recently reaffirmed the applicability of two exceptions to the Anti-Assignment Act (the “Act”). Liberty Ammunition, Inc. v. United States, 2011 WL 5150221 (Fed. Cl. Oct. 31, 2011). Specifically, the Court acknowledged that (1) the Government may prospectively waive the Act, and (2) the Act does not prohibit the transfer of an agreement where the transfer occurs by operation of law. Id. at *6-8. Notably, the Court’s decision provides further guidance for contractors undertaking corporate reorganizations and/or examining whether a particular acquisition transaction requires the execution of a novation agreement. We previously discussed the novation requirements here.Continue Reading Court of Federal Claims Reaffirms Exceptions To The Anti-Assignment Act

By Marko W. Kipa

After an unsuccessful bid protest, many contractors assume that their chance at getting a piece of the action has passed. They assume that they have exhausted their remedies and that all of the spoils inevitably will go to the victor. They let bygones be bygones and move-on to the next capture opportunity and ignore their competitor’s performance under the awarded contract. 
 Continue Reading Let Bygones Be Bygones – Except When It Comes To “Out of Scope” Modifications