The vilification of government contractors needs to stop. With few exceptions contractors are honest, hard-working and care deeply about the missions of their customers. The recent crush of new reporting obligations, including the Federal Awardee Performance and Integrity Information System, subcontractor and executive compensation reporting, and so on are being used as a tool to demonize contractors further, says Robert Tompkins, chairman of Patton Boggs LLP's civilian and defense contractors practice group.
There is a general lack of faith that government contracting officials understand and appreciate the "real world" implications of the discretionary decisions that they make, and that they are properly trained in the appropriate regulations. More training and improved hiring requirements for contracting officials would eliminate a great deal of unnecessary litigation, says Lawrence P. Block, chairman of Stinson Morrison Hecker LLP's government contracts practice group.
The "Buy American" laws need to catch up with the realities of the commercial world, as do our restrictions on the export of goods, services and technical information to non-U.S. persons, whether working in U.S. facilities or abroad. But the laws remain rooted in the past and the investigations and lawsuits have started, says John W. Chierichella, a leader in Sheppard Mullin Richter & Hampton LLP's government contracts and regulated industries practice group.
Although the introduction of task order debriefings and the U.S. Government Accountability Office protest right a few years ago was a welcome development, all kinds of awards — especially orders under a General Services Administration schedule — should be subject to the same debriefing rules, the same protest timeliness rules, and the clear application of the Competition in Contracting Act stay, says John E. Jensen, leader of Pillsbury Winthrop Shaw Pittman LLP's government contracts and disputes practice.
Too many companies think that, because they are selling the same stuff to the government that they sell commercially, the strict enforcement laws and regulations don’t really apply to them. They are wrong, says William M. Weisberg, leader of Bryan Cave LLP's government contracts and grants practice.
With the downturn in the economy, American Recovery and Reinvestment Act-funded projects are becoming more and more important to government contractors — but these projects come with quite a few strings attached, says Thomas A. Coulter, head of LeClairRyan's government contracts practice group.
As new and different procurement methods are utilized by government agencies, and based upon the current economic climate and competition for public work, there will likely be increased judicial review of the process and award decisions, says William J. Cea, a group leader for Becker & Poliakoff PA's government procurement practice group.
Given the likelihood of shrinking federal spending in coming years, contractors are sure to be mining the public Federal Awardee Performance and Integrity Information System for fodder to support assertions of wrongdoing as a strategy for eliminating the competition, says J. Eric Whytsell, a leader in Jackson Kelly PLLC's government contracts practice.
If we really believed small businesses were the engine of the economy, we would fix the misnamed Equal Access to Justice Act, says William J. Spriggs, co-chairman of Buchanan Ingersoll & Rooney PC's government contracts practice group.
The hotel and tourism industry is clearly on the Department of Labor’s short list of alleged “bad actors,” and that industry can expect increased attention from the Office of Federal Contract Compliance Programs, the Wage and Hour Division, OSHA and immigration, as well as private litigants, says Leigh M. Nason, a leader in Ogletree Deakins Nash Stewart & Smoak PC's affirmative action/OFCCP compliance practice group.
Addressing three troublesome “B’s” — barriers to entry, balancing outsourcing vs. insourcing and bid protests — would do a lot for the government contracts practice area, says Charles R. Lucy, manager of Holland & Hart LLP's government contracts practice group.
Conflicts of interest as well as mandatory disclosure and commercial item issues have been hot topics in the realm of government contracts lately, says Jacob B. Pankowski, chairman of Greenberg Traurig LLP's government contracts and export controls practice group.
Congress should not only renew legislation authorizing the GAO to review protests of task-order contracts exceeding $10 million but reduce the protest threshold to no more than $5 million, says Brian Bannon, co-leader of Blank Rome LLP's government contracts practice.
A wave of cost and pricing disputes is the result of overly aggressive tactics being used by the Defense Contract Audit Agency. Until something is done to rein in the DCAA, expect this trend to continue, says Karen L. Manos, co-chair of Gibson Dunn & Crutcher LLP's government and commercial contracts group.
In the government contracts field, “reform” tends to be an overused term, but there remains a good deal of room for further streamlining and otherwise improving the process for dispute resolution, says William L. Roberts, head of Faegre & Benson LLP's government contracts practice.
The effects of regulatory reform — on everyone from financial institutions to health care providers — will create a demand for administrative and legislative assistance with these new reform measures from government-savvy practitioners, says Jill Cranston Bentz, chairwoman of Dinsmore & Shohl LLP's government relations practice group.
When economic conditions improve, expect some companies to push back on some of the more onerous requirements of government clients and challenge audit findings in litigation, says Agnes Dover, director of Hogan Lovells' government contracts practice group.
U.S. data privacy and security laws are a patchwork of federal and state laws and regulations that can be particularly burdensome for smaller and midsize companies, and we need more uniformity in that area, says James M. Kunick, chairman of Much Shelist Denenberg Ament & Rubenstein PC's intellectual property and technology practice group.
The federal boards of contract appeals were designed to be a quick, fair and user-friendly method for resolving disputes between the federal government and contractors, especially small businesses, but they fail miserably, says George W. Ash, chairman of Foley & Lardner LLP's regulated industries department, government and public policy practice, and government procurement practice.
Recent legislative initiatives have been hostile to government contractors, including amendments to the False Claims Act that facilitate parasitic suits by whistleblowers based upon little more than conjecture regarding alleged fraud, says George D. Ruttinger, chairman of the government contracts group of Crowell & Moring LLP.
In light of the proposed e-discovery amendments to the Federal Rules of Civil Procedure, businesses need to set themselves up to efficiently respond to discovery and requests for information from their counsel by implementing and following document-control policies as part of normal business practices. The failure to do so will eventually consume vast amounts of employee time, say Steven Cvitanovic and Colin Murphy of Haight Brown & Bonesteel LLP.
The statutory and regulatory framework, marketplace, infrastructure and use of health information technology has grown and changed exponentially during the 2013 calendar year — but not without practical and legal challenges ranging from Affordable Care Act implementation to fraud and data protection concerns, say Sidney Welch and Cindy Acosta at Kilpatrick Townsend & Stockton LLP.
Arising in the context of a government lease, the Civilian Board of Contract Appeals' recent decision in Kap-Sum Properties LLC v. U.S. General Services Administration highlights the profound effect that unique federal changes clauses and disputes clauses have on a contractor’s options in the face of government delays and alterations to the contract, say attorneys with Arnold & Porter LLP.
Given the dim prospects for enactment of comprehensive cybersecurity legislation in the current political environment, the U.S. Department of Defense's new requirements for contractors are an important part of the Obama administration’s efforts to use the government’s procurement power and existing regulatory authorities to increase the cybersecurity of the companies on which the U.S. government relies, say attorneys with Arnold & Porter LLP.
Two recent decisions in the Fifth Circuit and the Federal Circuit involving Kellogg Brown & Root Services Inc. dealt with vicarious liability under the Anti-Kickback Act for subcontractor kickbacks accepted by KBR’s employees. Both decisions are flawed, but they should alert contractors to a serious need to revisit ethics and compliance programs to address kickback situations, says John Pachter of Smith Pachter McWhorter PLC.
If the potential damage from the shutdown is significant and you have not done a great job of keeping good records regarding those confusing and hectic weeks, the time to capture the facts and data necessary to assert any requests for equitable adjustment is now, says Richard O'Keeffe of Wiley Rein LLP.
In many instances, the very businesses still facing time and budgetary constraints that hamper employee understanding of compliance must now add a new layer of comprehension in 2014. The stage is set for a banner enforcement year for regulatory bodies worldwide, says Veta Richardson, president and CEO of the Association of Corporate Counsel.
Tuomey Healthcare System Inc. recently incurred penalties to the tune of $237.4 million under the False Claims Act. The full consequences of this case for hospitals and physicians have not yet fully developed, but it is clear that compensation arrangements may not take into account the volume or value of referrals of designated health services without running afoul of the Stark Law, says Chris Morrison at GrayRobinson PA.
Although the U.S. Department of Defense's recently issued final rule addressing how DOD contractors and subcontractors must safeguard unclassified technical information on their corporate information systems narrows a 2011 proposed rule, it still has wide applicability to private sector information systems where DOD technical information is stored or transmitted, say attorneys with WilmerHale.
One very real concern of moving to a physician payment system with no guaranteed payment increases over the next decade is that physicians with sufficiently high private-payer volume could opt out of Medicare altogether or move to a “concierge” model, say Susan Banks and Christopher Kenny of King & Spalding LLP.