Meaningful Discussions

Cutting-Edge Issues in Government Contracts Litigation and Policy

On December 26, 2017, defendant Gilead Sciences Inc. filed a petition for certiorari (case number 17-936), requesting the Supreme Court to review a major Ninth Circuit False Claims Act (FCA) ruling on liability in United States of America ex rel. Campie v. Gilead Sciences Inc. The petition argues that the Ninth Circuit adopted an approach to materiality that is inconsistent with the guidelines provided by the Supreme Court in Universal Health Services, Inc.
The long-awaited study by the RAND Corporation (RAND) that was performed pursuant to Section 885 of the 2017 National Defense Authorization Act (NDAA) was delivered to Congress on December 21, 2017 and released to the public last week. Not only does RAND  clearly explain with data the reasons for the Government’s long-standing decision to have a robust bid protest system to review of agencies’ procurement decisions, but RAND’s data, analyses, and recommendations also undercut…
Should whistleblowers be permitted to recover hundreds of millions of dollars when the Government steadfastly insists that the factual underpinnings of a False Claims Act relator’s allegations are flatly incorrect? Although a federal district court in Texas awarded more than $660 million in damages to a relator based on purportedly inadequate disclosures to a federal agency, the post-Escobar materiality standard served as an important guardrail for the U.S. Fifth Circuit Court of Appeals. The appeals…
On July 21, 2017, President Trump issued Executive Order No. 13,806 on “Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States.” Noting that the ability of United States domestic manufacturers to supply “essential components” that are “critical to national security” is “essential to the economic strength and national security of the United States,” the Order announced a policy of fostering “healthy manufacturing and defense industrial base and…
Millions of Americans who were able to obtain health insurance as a result of the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”) are waiting to learn the extent to which Congress and the new administration will repeal, replace, or do something else with the ACA. At the same time, Government contracts lawyers are watching a group of ACA-related lawsuits being litigated at the Court of Federal Claims and the Federal Circuit. The cases…
In a January 4, 2017 Memorandum, the Under Secretary of Defense for Acquisition, Technology and Logistics (“Under Secretary”), discussed implementation of a problematic DFARS rule issued on November 4, 2016, requiring “major contractors” to engage in a “technical interchange” with a DoD employee before IR&D costs are generated as a prerequisite for the allowability of such costs (“IR&D Rule”). The Memorandum effectively recognizes that issues with the IR&D Rule are more significant than DoD…
On December 6, 2016, the Supreme Court ruled that the False Claims Act (“FCA”) does not require the dismissal of lawsuits brought by relators who violate the requirement that information regarding the FCA complaint (and alleged fraud) not be disclosed to anyone (other than the district court and Department of Justice) and remain “under seal.” In State Farm Fire & Casualty Co. v. United States ex rel. Rigsby , the Court held that district courts…
On October 24, 2016, a federal district court in Texas issued a preliminary injunction in a case called Associated Builders & Contractors, et al. v. Rung, in which it halted implementation of the most controversial aspects of the newly-minted “Fair Pay and Safe Workplaces” FAR rule and the corresponding Department of Labor guidance, including the disclosure provision and the restriction on arbitration agreements. This post discusses the district court decision, which represents a…
Cybersecurity services soon will be available under new common provisions of the Multiple Award Schedule (MAS) Program administered by the General Services Administration (GSA). The MAS Program is the primary means to sell commercial products and services to federal agencies. GSA announced the new provisions this week. In mid-August 2016, GSA issued a draft solicitation and engaged in industry outreach to explain the changes to the current ordering system, in which companies sell such services…
On August 25, 2016, DoD, GSA, and NASA issued a final rule amending the FAR to implement President Obama’s Executive Order on “Fair Pay and Safe Workplaces” (“E.O.”) The Department of Labor (“DOL”) also issued final guidance to assist in the implementation of the E.O. The new FAR rule follows a proposed FAR rule that generated substantial comments. The final rule and guidance represent significant new obligations and risks for contractors and subcontractors, who should…