The Fiscal Year 2024 National Defense Authorization Act includes numerous provisions relevant to government contractors concerning areas such as artificial intelligence, cybersecurity, supply chain concerns related to China and Russia, and conflicts of interest for consulting services provided to the U.S. Department of Defense. 

The Biomedical Advanced Research and Development Authority (BARDA) held its first in-person BARDA Industry Day (BID) since the beginning of the COVID-19 pandemic in Washington, D.C., on November 13-14, 2023.

After a series of intensive negotiations among representatives of the European Union’s three governing bodies, the EU has concluded its “trilogue” meetings with a “political agreement” on the terms of its forthcoming Artificial Intelligence Act.

The White House recently issued its most extensive policy directive yet concerning the development and use of artificial intelligence (AI) through a 100-plus-page Executive Order (EO) titled "Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” and accompanying “Fact Sheet” summary.

The U.S. Department of Energy Office of Clean Energy Demonstrations, recently announced the project recipients selected for negotiation to develop seven regional clean hydrogen hubs across the United States.

The Federal Acquisition Regulatory Council published two proposed rules on October 3, 2023, that would impose significant new cybersecurity obligations on government contractors.

Partner Alexander Canizares, Counsel Julia Fox and Associate Suzanne Boehm were contributing authors to a chapter on evidence in False Claims Act cases.

The U.S. Department of Homeland Security announced new policies on September 14, 2023 regarding its use and acquisition of artificial intelligence technologies, including facial recognition and face capture technologies. DHS also appointed Eric Hysen as the department’s first chief AI officer.

Clarifying a significant issue in government contracts litigation against the government, the U.S. Court of Appeals for the Federal Circuit has held that the so-called “sum certain” requirement for Contract Disputes Act claims against the government is a nonjurisdictional rule, subject to forfeiture if not timely raised by the government.

International cooperation and welcoming foreign academics are critical to the success and leadership of U.S. institutions of higher education. These interactions enhance fundamental scientific research and promote the American tradition of attracting scientific, technical, and cultural talent from around the world.

A defendant’s knowledge of and subjective beliefs about the meaning of legal requirements—not what an objectively reasonable person may have believed—are what matters when determining whether a defendant “knowingly” submitted false claims for payment in violation of the False Claims Act, the U.S. Supreme Court ruled on June 1, 2023.

Critical infrastructure companies should expect substantial new federal cybersecurity requirements based on the National Cybersecurity Strategy that President Biden announced on March 2, 2023. After the Administration announced the Strategy, the EPA released a memorandum addressing cybersecurity in public water systems and TSA released an aviation cybersecurity amendment.

The Office of Federal Contract Compliance Programs (OFCCP) published its final order on March 1, 2023, rescinding the Trump-era Religious Exemption Rule for federal contractors.

Deputy Attorney General Lisa Monaco delivered groundbreaking remarks at the American Bar Association National Institute on White Collar on March 2, 2023, heralding a new era of corporate enforcement aimed at addressing U.S. national security priorities.

The National Institute of Standards and Technology, the White House, and the Equal Employment Opportunity Commission are warning companies that uncritical reliance on AI can have legal consequences, including potentially building in bias that can lead to claims of employment discrimination.

The U.S. Department of Justice obtained more than $2.2 billion in civil False Claims Act judgments and settlements in fiscal year 2022, the lowest such annual total since 2008 and a significant drop from a jump in FCA recoveries in the prior year. But the DOJ’s announcement of its FY 2022 FYA recoveries also discloses that the DOJ is increasingly bringing FCA cases on its own, and the total number of settlements and judgments in FCA matters increased to near-record highs in FY 2022, signaling a robust enforcement climate ahead.

This Update discusses key provisions from the 2023 National Defense Authorization Act affecting government contractors.*

The federal contractor COVID-19 vaccine mandate, dormant after a federal district court issued a nationwide injunction, may be revived in an appeal of that matter after the U.S. Court of Appeals for the Eleventh Circuit determined that the nationwide injunction was too broad.

Federal contractors should remain vigilant in how they structure and conduct internal pay equity audits to ensure compliance with the revised federal guidance. On August 18, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs revised its recent directive related to compliance obligations on evaluating compensation and how the agency may seek to gain access to that data during a compliance audit.

The U.S. Department of Justice’s Civil Cyber-Fraud Initiative, announced last October, is designed to leverage existing whistleblower incentives for employees, or other persons with inside knowledge, to identify lapses in federal contractors’ cybersecurity and privacy practices.

National Security Presidential Memorandum-33 and implementation guidance from the National Science and Technology Council direct federal agencies to standardize and enhance disclosure and security requirements that apply to federally funded research and development.

As federal agencies prepare to roll out new regulations to protect government information in the possession of government contractors against cyber threats—and to accelerate the procurement of cybersecurity products and services from industry—the emerging risks of False Claims Act (FCA) investigations and qui tam cases related to cybersecurity are an increasingly important consideration for contractors.

Russia’s invasion into Ukraine in February 2022 has prompted the United States and its allies, including the United Kingdom, the European Union, and others, to issue substantial international trade restrictions including economic sanctions and export controls. In addition to earlier U.S. actions, the United States has issued further trade restrictions.

Mayor Muriel Bowser signed the District of Columbia’s Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) (the Act) on January 11, 2021.

Federal contractors who conduct pay equity audits under attorney-client and work product privileges face increased risks under a new directive by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs.

The U.S. Department of Justice recovered more than $5.6 billion in civil False Claims Act judgments and settlements in fiscal year 2021, the second largest ever annual total in FCA recoveries and the largest since 2014, DOJ announced on February 1, 2022.

This update was also published on February 17, 2022, here on NASBP.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs recently reminded federal contractors that the government has broad authority to audit and investigate contractors’ equal employment practices and policies.

Last week, the U.S. Court of Appeals for the Federal Circuit clarified, with regard to bid protests, that prejudice is not to be presumed from arbitrary and capricious government procurement actions.

This update was published in Westlaw Today, "Federal Circuit Clarifies Prejudice is Never Presumed in Bid Protests," on 01.12.2022.

Cybersecurity, artificial intelligence, and nontraditional approaches to procurement are once again areas of legislative focus for Congress in the recently passed Fiscal Year 2022 National Defense Authorization Act (NDAA), which authorizes $768.2 billion in defense spending.

On December 7, 2021, a federal district court in Georgia issued a nationwide injunction blocking the federal contractor vaccine mandate and other protocols.

Perkins Coie LLP attorneys Alexander Canizares, Richard Oehler and Julia Fox discuss the U.S. Justice Department's new Civil Cyber-Fraud Initiative and detail how government contractors can ensure their continued compliance with cybersecurity requirements.

In this second episode of a Perkins Coie White Collar & Investigations series regarding False Claims Act (FCA) enforcement, firm attorneys Barak Cohen and Alex Canizares are joined by their guest, Pete Jensen, global chief compliance officer for Arthrex, Inc., one of the world’s largest medical device companies.

Last week, the federal government began enforcing the requirements of the Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (COVID EO) and its supporting guidance.

On October 6, 2021, the U.S. Department of Justice (DOJ) announced an initiative to pursue civil False Claims Act (FCA) enforcement actions against government contractors that knowingly fail to follow required cybersecurity standards and reporting requirements.

President Joe Biden's May 12, 2021 Executive Order on Improving the Nation's Cybersecurity (EO 14028) calls for urgent actions to strengthen the government's protections against increasingly sophisticated and damaging cyber threats. Among the objectives of EO 14028 is to safeguard the security and integrity of software supply chains.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has taken three recent notable actions.

In this first episode of a series that will explore emerging developments related to the False Claims Act (FCA), Perkins Coie attorneys Barak Cohen and Alexander Canizares are joined by guest Marc Bonora, to discuss practical issues and effective strategies for companies to mitigate risks related to FCA investigations and qui tam whistleblower lawsuits.

The U.S. Department of Justice (DOJ)  announced on June 7, 2021, that a North Carolina engineering firm agreed to pay a $7 million fine and $1.5 million in restitution after pleading guilty to engaging in bid rigging and fraud in order to obtain contracts for infrastructure projects.

On May 26, Deputy Secretary of Defense Kathleen Hicks signed a memorandum calling for the incorporation of responsible AI principles into the U.S. Department of Defense’s AI requirements and acquisition processes. The memo establishes foundational tenets for DoD’s adoption of responsible and ethical AI, and directs the DoD’s Joint Artificial Intelligence Center (JAIC) to make recommendations on incorporating responsible AI principles into DoD’s AI procurements. The memo is expected to have broad impacts on companies seeking to sell AI products to the government, for which there is a growing federal market.

On May 12, 2021, President Biden signed a sweeping Executive Order (EO) to protect federal government networks and software supply chains against increasing threats of attacks from malicious cyber actors, setting the stage for future rulemaking and amendments to the Federal Acquisition Regulation (FAR) focusing on IT and software sold to the government.

As the government revives its Paycheck Protection Program (PPP) with hundreds of billions of dollars in additional loans available to small businesses, there are fresh signs that government fraud investigations and whistleblower litigation related to the loan program are ramping up.

President Biden signed an Executive Order (EO) on January 25, 2021, outlining his administration’s policy to increase procurement of U.S.-made products by expansion of domestic preferences for American-made goods and components purchased by the federal government.  

The U.S. Department of Justice (DOJ) recovered more than $2.2 billion in settlements and judgments from civil cases under the False Claims Act (FCA) in the fiscal year ending September 30, 2020.

The Department of Defense’s (DoD) Cybersecurity Maturity Model Certification (CMMC) program and newly issued cybersecurity rule present contractors with a range of compliance issues as they prepare for expanded third-party and DoD assessments of their information systems that will be a condition of eligibility for nearly all defense contracts.

The U.S. Department of Defense (DoD) has issued a long-awaited interim rule to safeguard unclassified information in the possession of defense contractors by making periodic assessments of a company’s cybersecurity compliance a condition of eligibility for a contract award.

The U.S. Department of Defense (DoD) has issued a long-awaited interim rule to safeguard unclassified information in the possession of defense contractors by making periodic assessments of a company’s cybersecurity compliance a condition of eligibility for a contract award.

In a new directive, the U.S. Department of Defense (DoD) revised acquisition policies across the DoD to emphasize flexibility, competition, affordability, and performance as among the high-level objectives of a broader push for acquisition reform.

In United States ex rel. Wollman v. Massachusetts Gen. Hosp., Inc., No. CV 15-11890-ADB, 2020 WL 4352915 (D. Mass. July 29, 2020), yet another district court agreed with the U.S. Court of Appeals for the D.C. Circuit’s decision in In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 2014), holding that, although the defendants waived it here, attorney-client privilege applies to internal investigations.

The U.S. government has issued a long-awaited rule implementing legislation to prevent federal agencies from contracting with entities that use telecommunications equipment or services produced or provided by Huawei Technologies Company, ZTE Corporation, and certain other Chinese companies, a major step that will impose a significant new compliance burden on government contractors.

This update provides some recent lessons learned with remote depositions that apply to both those who take and defend remote depositions.

A key area of focus in the Department of Defense’s (DoD) gradual rollout of its Cybersecurity Maturity Model Certification (CMMC) is the training and accreditation of third-party assessors that will be responsible for reviewing some 300,000 defense contractors’ cybersecurity practices for compliance with applicable controls.

On May 15, 2020, the Small Business Administration (SBA) released an application for loan forgiveness under the Paycheck Protection Program (PPP).

Borrowers who, together with their affiliates, received Paycheck Protection Program (PPP) loans in an aggregate amount less than $2 million will be deemed to have made their certification that the loan was “necessary” in good faith, according to new guidance issued by the U.S. Small Business Administration (SBA).

“Trust, but verify.” This has gained new currency in the context of the Department of Treasury and the Small Business Administration’s April 23 and April 28 guidance concerning “necessity” certification of Paycheck Protection Program loans and a new interim final rule issued April 30 limiting loans to corporate groups.

Companies seeking PPP loans must certify they have an “economic necessity” to obtain these loans.

The Office of Management and Budget (OMB) and several federal agencies have issued guidance implementing a provision in the CARES Act that allows government contractors to be reimbursed for paid leave to employees and subcontractors unable to work during the COVID-19 crisis.

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27, 2020, established the Paycheck Protection Program (PPP), a loan program that made $349 billion available to small businesses using the Small Business Administration’s (SBA) existing 7(a) loan program.

Businesses that receive government funding under the nearly $2 trillion Coronavirus Aid, Relief, and Economic Security Act (CARES Act) should be mindful of the heightened risks of government investigations of fraud, waste, and abuse, for several reasons.

This update was also posted on the Coronavirus (COVID-19): Guidance for Businesses blog.

The Department of Defense (DoD) has identified a way to speed the procurement of supplies and services to combat the coronavirus (COVID-19): Designate them as commercial items under the Federal Acquisition Regulation (FAR).

On March 27, 2020, President Trump issued a third Executive Order (EO) invoking his authority under the Defense Production Act of 1950 (DPA) to respond to the coronavirus (COVID-19) crisis.

A key feature of the nearly $2 trillion economic stimulus bill signed into law on March 27, 2020 is the creation of a $350 billion “Paycheck Protection Program” (PPP) to authorize loans to businesses affected by the COVID-19 crisis.

Defense contracting is among the areas addressed in the 883-page Coronavirus Aid, Relief, and Economic Security Act (CARES Act) (H.R. 748), which was passed by the Senate on March 25, 2020.

Any crisis—especially one as drastic and unprecedented as COVID-19—heightens the risks of fraud, waste, and abuse. Perkins Coie attorneys examine recent Justice Department actions and say even companies that don’t receive funds specifically tied to the federal government’s response to the outbreak should bear in mind the risks of potential exposure to fraud allegations. 

The Office of Management and Budget (OMB) issued guidance on March 20, 2020, to the heads of executive departments and agencies regarding contract performance issues associated with COVID-19.

Due to rising concerns about the recent outbreak of the novel coronavirus, President Trump signed an executive order on March 18, 2020, invoking his authority under the Defense Production Act.

What is a thing? On February 10, 2020, the U.S. Court of Appeals for the Federal Circuit gave us a new answer to this old philosophical question.

A common source of organizational conflicts of interest (OCI) is when a firm’s ability to render impartial advice to the government is or might be undermined by the firm’s competing interests.

The U.S. Department of Defense’s (DoD) new cybersecurity verification regime is moving into a new phase, with major implications for contractors.

The Department of Justice (DOJ) recovered more than $3 billion in settlements and judgments from civil cases involving the False Claims Act (FCA) in the fiscal year ending September 30, 2019, according to statistics released by DOJ on January 9, 2020.

Cybersecurity, supply chain risks, data rights, software acquisitions, and cost or pricing data are among the procurement-related issues targeted in the Fiscal Year (FY) 2020 National Defense Authorization Act (NDAA), which authorizes $738 billion in defense spending next year, a $21 billion increase from FY 2019.

The U.S. Department of Defense (DOD) is forging ahead in its plan to adopt a new framework for cybersecurity, with significant ramifications for all defense contractors, including subcontractors.

Effective October 1, 2019, a new rule issued by the U.S. Department of Defense (DOD) amends the Defense Federal Acquisition Regulation Supplement (DFARS) to limit the use of lowest price technically acceptable (LPTA) procurements.

After receiving more than one thousand comments from industry and other stakeholders, on October 1, 2019, the General Services Administration (GSA) will issue a solicitation for a single, consolidated Schedule as part of its project to combine its 24 existing Multiple Award Schedules (MAS), also referred to as Federal Supply Schedules (FSS), into one.

Having recently eliminated its backlog for incurred cost audits, the Defense Contract Audit Agency (DCAA) is now focusing on another type of audit: defective pricing. 

In an interim rule published on August 13, 2019, the U.S. government revised the Federal Acquisition Regulation (FAR) to prohibit federal agencies from acquiring telecommunications equipment or services produced or provided by Huawei Technologies Company, ZTE Corporation and other Chinese companies.

This update was republished in Law360 on 09.10.2019, "Adapting To Gov't Contractor Rules Banning Chinese Telecom."

The U.S. Supreme Court rejected a decades-old legal standard for companies that wish to shield their business information from disclosure to the public under the Freedom of Information Act (FOIA).

Congress is moving closer toward passage of the Fiscal Year 2020 National Defense Authorization Act (NDAA).

This update was published in LexisNexis "The FY 2020 National Defense Authorization Act: What Government Contractors Should Watch For," on 10.2019.

Whistleblowers bringing qui tam suits under the False Claims Act have up to ten years to file suit against defendants in cases in which the government declines to intervene, the U.S. Supreme Court has held, rejecting a government contractor’s argument in favor of a shorter limitations period.

The Small Business Administration issued a proposed rule on December 4, 2018, to implement, among other things, certain provisions of the National Defense Authorization Acts of 2016 and 2017.

The U.S. Department of Defense (DOD) proposed to amend the Defense Federal Acquisition Regulation Supplement (DFARS) on December 4, 2018, to limit the use of lowest price technically acceptable (LPTA) procurements.

There have been several recent developments that may give rise to optimism among innovative, commercially oriented contractors that have been avoiding DOD.

This update was published in Law360 "It May Be Time For Companies To Reconsider DOD Contracts," on 07.06.2018.

The United States will reimpose sanctions against Iran to implement President Donald Trump’s decision to withdraw from the Joint Comprehensive Plan of Action (JCPOA), a multilateral agreement under which Iran agreed to curb development of certain nuclear capabilities in exchange for the United States lifting specified sanctions.

Starting May 1, 2018, the General Accounting Office (GAO) will require that all new protests (except those containing classified information) be filed using its web-based electronic filing system known as the Electronic Protest Docketing System (EPDS).

As competitors in federal negotiated procurements recognize, post-award debriefings are an important feature of the procurement process. Federal Acquisition Regulation (FAR) 15.506 has long mandated that an unsuccessful offeror in negotiated procurements be given an opportunity to obtain certain baseline information regarding the agency evaluation of its proposal and the rationale for the agency selection decision.

A recent federal appeals court decision addresses a familiar issue for many companies: When can a U.S. exporter be liable for a product that is re-exported to a sanctioned country, such as Iran?

The Armed Services Board of Contract Appeals (ASBCA or the Board) recently released a decision addressing the final issue of materiality in the long saga of the Raytheon accounting change case.

The U.S. Supreme Court handed down an important decision on June 16, 2016 that expands the scope of liability under the False Claims Act, 31 U.S.C. §§ 3729-3733.

The U.S. Supreme Court is poised to resolve a circuit split over the False Claims Act (FCA) that could have broad implications for those that do business with the federal government.

Anchorage became the first Alaska town to pass a civil rights ordinance that extends protections to gay, lesbian, transgender and bisexual people in housing, employment and public accommodations.

Do words matter? In a precedent-setting decision in Harris IT Services Corp., B-411699, B-411796, the Government Accountability Office said, “Yes.” In particular, GAO made clear that the phrase “delivery order” has a particular meaning under the law and that government agencies must abide by that definition when procuring goods and services.

The Department of Defense (DoD) issued an interim cybersecurity rule in August 2015 that, among other things, revises the existing Defense Federal Acquisition Regulation Supplement (DFARS) cybersecurity clause and increases security and reporting obligations for DoD contractors.

Do words matter?  In a precedent-setting decision in Harris IT Services Corp., B-411699, B-411796, GAO said “yes.”[1] In particular, GAO made clear that the phrase “delivery order” has a particular meaning under the law and that government agencies must abide by that definition when procuring goods and services.

This article, written by partners Hartmann Young and T. Markus Funk, examines the application of recent federal human trafficking rules for federal contractors.

On August 11, 2015, In re Kellogg Brown & Root, Inc. No. 14-5319, slip op. (D.C. Cir. Aug. 11, 2015), the U.S. Court of Appeals for the D.C. Circuit issued an important opinion vacating another series of rulings by the U.S. District Court for the District of Columbia that had required Kellogg Brown & Root, Inc. (KBR) to produce privileged internal investigation documents.

The United States Supreme Court handed False Claims Act (FCA) defendants a mixed decision on May 26, 2015.  In a win for defendants, the Supreme Court held that the statute of limitations for False Claims Act lawsuits was not suspended for the duration of the Iraq and Afghanistan conflicts.

Companies that contract with the federal government will soon be subject to new rules aimed to stamp out human trafficking (see discussion of some of the existing rules and regulations here and here).

On September 3, 2014, the Department of Defense (DoD) issued a proposed rule updating its policies and procedures implementing the Freedom of Information Act (FOIA), including FOIA Exemption 4.

On September 15, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule that would prohibit federal contractors from enforcing pay secrecy policies. 

In a significant legal development, a U.S. District Court Judge recently ordered KBR Inc. (KBR) to produce internal investigation materials addressing allegations of misconduct under a government contract for military support in Iraq. Having conducted the investigations under the direction of in-house counsel, KBR sought protection of the investigative materials through the attorney-client privilege and attorney-work product doctrine. But the court ordered their production and reasoned that the KBR investigators were not attorneys and that the investigations were undertaken “pursuant to regulatory law and corporate policy rather than for the purpose of obtaining legal advice.”

Imagine that your company is a contract holder under a U.S. Army multiple award, indefinite-delivery, indefinite-quantity (IDIQ) contract.  The Army issues a request for proposal for a firm, fixed-priced task order, and your company submits a timely proposal.  After completing its evaluation of proposals, the Army awards to a competitor an order in the amount of $9.5 million.

The firm secured a significant win for client Wyle Labs in a bid protest challenging NASA’s award of a $1.8 billion contract to Science Applications International Corporation (SAIC).  The contract is to provide medical, biomedical and health services in support of NASA’s human spaceflight programs at the Johnson Space Center.  The Government Accounting Office (GAO) on December 27 sustained Wyle’s protest on the grounds that SAIC’s proposal and NASA’s evaluation of it failed to reasonably reflect the manner in which the contract would be performed, the level of costs associated with the performance and the corporate entity that would perform it.  The GAO recommended that NASA either award the contract to Wyle or reopen the procurement process and solicit revised or new proposals.  As co-counsel, the Perkins team pursued the bid protest for the past three months and described the result as “extremely favorable.”  The team was led by Lee Curtis and Jeff Eisenstein and included Don Carney, Bill Bainbridge, Seth Locke and paralegals Sheri Pais and John Cascio.

On October 2, 2013, Small Business Administration (SBA) published a final rule to establish and revise rules and procedures pertaining to small business set-asides, partial set-asides, multiple award contracts (MACs), task and delivery orders, bundling and consolidation. 

On June 28, 2013, the Department of Defense (DoD) published its Performance of the Defense Acquisition System, 2013 Annual Report.

Washington, D.C. Partners Rich Clifford and Andy Shipley and Associate Seth Locke of the Government Contracts practice are the co-authors of a chapter featured in the recently released first edition of The Government Procurement Review, a series of The Law Reviews published by Law Business Research Ltd.

For the first time in the more than 50-year history of the statute, a federal appeals court has applied the Wartime Suspension of Limitations Act (WSLA), 18 U.S.C. § 3287, to a civil False Claims Act (FCA) case.

Whether “Corporate Social Responsibility” (CSR) is a new phrase to your company or is something you have observed and worked on for years, these are perilous times indeed for companies with large, complex, global supply chains.

On September 25, 2012, President Obama signed a groundbreaking Executive Order designed to strengthen protections against trafficking in persons in federal contracting.

In a recent client update, we discussed proposed legislation, entitled the Comprehensive Contingency Contracting Reform Act of 2012, that would provide for the automatic suspension of a contractor in a variety of situations, including when the federal government merely alleges fraud against a contractor in a civil or criminal proceeding related to a federal contract.  We noted that the proposed legislation was roundly criticized by representatives of the affected agencies:  the Department of Defense, the Department of State, and the U.S. Agency for International Development.  See "Shift to 'Automatic' Ineligibility Determinations Poses Increased Risk to Federal Contractors".

Now a new bill changes the automatic suspension into an automatic referral to suspension and debarment officials for final decision-making.

Those working in today's in-house law departments or supervising global supply chains and third-party business partners have become sensitive to the significant dangers posed by not complying with the U.S. Foreign Corrupt Practices Act (“FCPA”).  The well-publicized recent events surrounding Wal-Mart's FCPA woes have only raised already-elevated anxiety levels.

In April 2012, the Federal Awardee Performance and Integrity Information System ("FAPIIS") database, with the exception of contractor past performance reviews, became available for public review. Observers have expressed concern that some of the information available on FAPIIS, notably documents related to suspension and debarment proceedings, contains sensitive and proprietary information that a company would not want disclosed to the public.

The threat of a suspension or debarment by a federal procurement agency has long been a federal contractor's worst nightmare because of the risk of exclusion from the federal marketplace, reputational damage and other potential adverse consequences.

In 2011, the Small Business Association ("SBA"), implemented regulation changes that affected small business contractors.  The SBA, however, did not implement a benefits reporting requirement for certain Section 8(a) participants.

In the final hours of its regular session, the Washington Legislature enacted the Washington Medicaid Fraud False Claims Act.

Under a new General Services Administration rule, contractors providing information technology supplies, services or systems to GSA will be required to submit an IT Security Plan that describes contractor compliance with federal cybersecurity regulations.

The Centers for Medicare and Medicaid Services published proposed regulations today under the Physician Payment Sunshine Act.

On December 8, 2011, Federal Chief Information Officer Steven VanRoekel issued a memorandum introducing the Office of Management and Budget's Federal Risk and Authorization Management Program (“FedRAMP”).  FedRAMP is intended to make the government’s migration to cloud computing more cost effective and to ensure the safety, security and reliability of the government’s data.

On May 18, 2011, the Department of Defense ("DoD") published an interim rule amending the Defense Federal Acquisition Regulation Supplement ("DFARS") to require contractors on covered DoD contracts to establish and maintain acceptable business systems or risk partial withholds of contract payments if these systems have significant deficiencies.

A U.S. Supreme Court decision handed down on May 16, 2011, restricts the information upon which a private plaintiff can base a False Claims Act case. Private plaintiffs have often used the Freedom of Information Act ("FOIA") to obtain information from government agencies to bolster claims under the False Claims Act.

The American Bar Association held a Health Care Fraud Conference on May 11-13, 2011 in which high level officials from both the Department of Justice (“DOJ”) and Health and Human Services (“HHS”) described the new tools and tactics the government is utilizing to combat health care fraud. The government's new campaign will increase the amount of scrutiny that hospitals, pharmaceutical manufacturers, medical device companies and individual providers face.

On April 26, 2011, the Department of Defense, General Services Administration and National Aeronautics and Space Administration published a proposed rule to amend the Federal Acquisition Regulation Organizational Conflicts of Interest (OCI) provisions that would change the longstanding framework of OCI analysis and impose additional obligations on contracting officers and contractors.

The Department of Health and Human Services (HHS) recently announced that it will seek to exclude Howard Solomon, CEO of pharmaceutical company Forest Laboratories Inc., from participation in federal health programs (such as Medicare and Medicaid) based solely on the corporation’s criminal conviction.

The Department of Defense ("DOD") recently announced a proposed rule that would tie the allowability of independent research and development ("IR&D") costs to a reporting requirement.  The proposed rule would require major contractors to report IR&D projects that generate annual costs in excess of $50,000.

With President Obama's signing of the National Defense Authorization Act for Fiscal Year 2011, the Government Accountability Office's ("GAO") protest jurisdiction over Department of Defense ("DoD") task and delivery orders in excess of $10 million was extended until September 30, 2016.  Although GAO's jurisdiction over DoD orders was extended, GAO's jurisdiction over civilian orders remains scheduled to expire on May 27, 2011.

Many companies might be surprised to learn that the difficult to control acts of their foreign agents, intermediaries, consultants, joint venture partners, suppliers, distributors and even outside counsel, private equity portfolio companies and franchisees can result in—and, in fact, have resulted in—potentially devastating civil and criminal Foreign Corrupt Practices Act (FCPA) liability to the principal or parent company . . . even absent any evidence of the company’s actual knowledge of this misconduct. And all indications are that the government will ramp up its reliance on such third-party liability as we move into 2011 and beyond. This update examines the growing threat of third-party liability and how clients can, through precautionary steps tailored to the particular circumstances of the company, effectively fend off the potentially catastrophic effects of third-party liability.

When the American Recovery and Reinvestment Act of 2009 (“ARRA” or the “Recovery Act”) was enacted in February 2009, it gave broad investigative and examination powers to the Office of the Inspector General (“OIG”) and the Comptroller General of the Government Accountability Office (“GAO”).  It is critical when dealing with investigations conducted by these federal agencies to understand how these changes may impact your business.

When the American Recovery and Reinvestment Act of 2009 ("ARRA"), was enacted in February 2009, the compliance landscape for state agencies and contractors shifted significantly.  Although promising substantial funds to state agencies, the ARRA also demands a level of transparency and oversight previously unseen in government contracting.  State agencies and contractors need to become knowledgeable regarding these compliance "strings" attached to ARRA funds. This is the first of three updates that will focus on ARRA compliance requirements for state agencies and their contractors or grantees.  This Update focuses on reporting and registration requirements.

Federal contractor past performance information—traditionally made available only to federal acquisition professionals for use in making award and responsibility determinations—will soon be made available to the general public at the Federal Awardee Performance and Integrity Information System ("FAPIIS") website.

On June 30, 2010, the House of Representatives approved the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, a comprehensive and expansive set of financial reforms widely thought to be the toughest changes to financial regulation in the United States since the Great Depression.

Under a new Federal Acquisition Regulation ("FAR") requirement, effective July 8, 2010, federal contractors must disclose first-tier subcontractor award information for contracts valued at $25,000 or more.

The U.S. Supreme Court issued its decision in Citizens United v. FEC, a case examining the legality of a documentary film released in 2008 about Hillary Clinton’s candidacy for president. In a 5-4 ruling, the court struck down laws banning independent electoral and issue advocacy sponsored by nonprofit and for-profit corporations.

On December 9, 2009, marking the one-year anniversary of former Gov. Blagojevich’s arrest, Gov. Quinn signed legislation enacting the state’s first comprehensive campaign finance regulations.

The U.S. Treasury Department, chair of the Committee on Foreign Investment in the United States ("CFIUS"), recently published guidance on the types of transactions previously reviewed by CFIUS that have presented national security considerations ("Guidance").  The Guidance is intended to provide insight into how CFIUS identifies the national security effects of covered transactions and may assist parties considering whether to file a voluntary notice of a transaction with CFIUS [1]. This is an important determination because, although filing a CFIUS notice is voluntary, the parties may be forced to unwind a transaction where no filing was made if the President later determines it poses national security risks.

On September 23, the Department of Justice (DOJ) released a new policy governing the DOJ's invocation of the Military and State Secrets Privilege (state secrets privilege).  Although the policy provides an additional level of oversight regarding invocation of the privilege within DOJ, it mostly avoids concerns expressed by Congress in connection with pending legislation requiring heightened judicial oversight over the invocation of the state secrets privilege.

Faced with mounting public pressure in the wake of recent scandals, Illinois Governor Pat Quinn is expected to sign several pieces of “ethics” legislation that the General Assembly adopted in May. Two bills, SB 51 and SB 54, which amend the Procurement Code and Lobbyist Registration Act, change the registration and reporting requirements for companies doing or seeking more than $50,000 worth of business with the state and for lobbyists.

Government contracts for the development, production or construction of complex systems often involve numerous contract change orders.  In the past, contractors have been found entitled to recover not only for the direct and indirect costs of the changed work and for any associated delay, but also for the "cumulative impact" that those changes may have had upon unchanged contract work.

This presentation will provide an overview of the key emerging legal and policy considerations for government contractors seeking to provide AI/ML technology solutions to federal agencies, including data rights/IP protection, ethics and transparency, and risk mitigation concerning data and AI/ML models.

An overview of the government’s tools and authorities to combat fraud in COVID-19 relief spending and the anticipated areas of focus for the U.S. Department of Justice as well as other new and existing investigative entities.

Join us for a timely webinar that will address key considerations for businesses exploring the financing opportunities made available under the CARES Act. 

Perkins Coie partners Marcelo Halpern, Richard Clifford and Andrew Shipley participated in PLI’s Understanding the Intellectual Property License 2014.