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The Contractor's Perspective

A blog by Husch Blackwell LLP in General

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Entries in this blog

Husch Blackwell Launches New FCA-Themed Podcast

Last week, we launched False Claims Act Insights, a new podcast devoted to exploring issues relating to False Claims Act (FCA) investigations and litigation. The show is hosted by Jonathan Porter—a partner in our firm’s White Collar, Internal Investigations & Compliance practice group and former Assistant U.S. Attorney for the Southern District of Georgia—and will feature prominent guests who dive into the complexities of FCA enforcement and compliance. The new show is a timely addition

Federal Infrastructure Contractors: Build America, Buy America Now Mandates More Restrictive Definition of “Construction Materials” for Federal Grants and Agreements

The Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, which includes the Build America, Buy America Act (“BABA”), was signed into law by President Biden on November 15, 2021.  BABA provisions apply to all Federal financial assistance awards (e.g., grants, cooperative agreements, non-cash contributions or donations, direct assistance and loans) that will be used to fund a portion or all of the construction, alteration, maintenance or repair of infrastructure in the United States. 

Avoiding the False Claims Act with Good Cyber Practices

Since 2021, the Department of Justice (DOJ) has been increasingly focused on adjudicating False Claims Act (FCA) matters for deficient cybersecurity practices. As the government increases scrutiny of data privacy and cybersecurity, it is increasingly important to develop and maintain robust cybersecurity systems, educate employees, and ensure adequate risk management. Taking time now to shore up your data privacy and cybersecurity will help to avoid FCA challenges in the future. FCA Cybe

Dusting off the Government Shutdown Playbook

Once again, the threat of a government shutdown looms over federal contractors and grantees. If Congress does not pass a continuing resolution or other funding legislation before midnight on Saturday, agencies will lack authorized appropriations to fund their operations. Although regrettable, the risk of a shutdown (or debt ceiling crisis) has been a fairly common occurrence over the last few years. Here’s our guidance from prior potential funding shortfalls on how contractors can prepa

New Davis-Bacon and Related Acts Regulations to Expand DOL Authority

For the first time in 40 years, the Department of Labor (DOL) updated its interpretation and implementation of the Davis-Bacon and Related Acts in new final rules. DOL’s new final rules concerning the prevailing wages and fringes contractors must pay their workers on federal and certain federally funded construction projects and published in the Federal Register on August 23, 2023 (88 Fed. Reg. 57526) are, in some respects, a throwback to 1982. In other respects, the new final rules att

Federal Contractors and Employers with DEI Initiatives: Three Takeaways from SCOTUS Decision Striking Down Racial Preferences

On June 29, 2023, in a 6-3 decision authored by Chief Justice Roberts, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the U.S. Supreme Court held that college and university race-conscious admission decisions at Harvard University and the University of North Carolina violate the Equal Protection Clause of the 14th Amendment. But what impact does this have on federal contractors subject to affirmative action obligations to provide equal employment opportunities to

Implications of the Debt Ceiling for Government Contractors

The ongoing debt ceiling negotiations are approaching the “X Date” with little certainty of a resolution. The X Date, the date on which the U.S. Government runs out of money to pay all of its bills, is estimated to be June 1. Failing to raise the debt ceiling by that date would be unprecedented and, by most accounts, would have dire consequences for the economy. The current brinkmanship related to the debt ceiling is reminiscent of prior talks leading up to government shutdowns. The scen

OFCCP Publishes Annual Veteran Hiring Benchmark and New Self-Identification of Disability Form

Husch Blackwell attorney Tracey O’Brien has posted about the new guidelines OFCCP released on veteran hiring benchmarks, reducing the national annual benchmark to 5.4%. Federal contractors are required to compare their percentage of hires who are protected veterans to this benchmark to measure their outreach and recruitment efforts. The OFCCP has also updated state-level availability data. In addition, the OFCCP has updated its Voluntary Self-Identification of Disability form (CC-305),

OFCCP Rescinds 2020 Final Rule Regarding Religious Exemption

Effective March 31, 2023, OFCCP rescinded the Trump administration’s Final Rule, Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption (Final Rule). The Final Rule was issued in December 2020, during the waning days of the Trump administration. While the text of OFCCP regulation, 41 C.F. R. 60-1.5(a)(5) (OFCCP religious exemption), was not changed by the Final Rule, the Final Rule did add 1) a new paragraph with definitions to terms used in the religious ex

SCOTUS Signals Likely Reversal in SuperValu, Arguments Reflect Concerns over Application to Other FCA Cases

On April 18, 2023, the United States Supreme Court heard oral argument in two consolidated cases that have the potential to upend False Claims Act (FCA) litigation. Oral argument on both sides and questioning from the Justices indicated tensions and sincere disagreement over the complexities of applying the False Claims Act’s scienter element in areas of ambiguity. The consolidated cases are United States ex rel. Schutte v. SuperValu, Inc., and United States ex rel. Proctor v. Safeway, I

DOJ Posts Near-Record Year of False Claim Act Settlements and Judgments

Cybersecurity-related FCA cases poised to increase as FCA enforcement ramps up On February 7, 2023, the Department of Justice (DOJ) announced that settlements and judgments under the False Claims Act exceeded $2.2 billion during the 2022 fiscal year and that the government posted its second-highest number of settlements and judgments in a single year. While most of that enforcement activity—about 77 percent—was aimed at the healthcare industry, DOJ’s press release highlighted the Dep

Changes and Challenges Relating to Affirmative Action Obligations Federal Contractors Face in 2023

The Office of Federal Contract Compliance Programs (OFCCP) has made several announcements, including Directives, Notices, and Proposals in their quest to embark on initiatives that significantly impact federal contractors’ affirmative action obligations. These changes contemplate substantive changes to regulations and existing interpretations of the regulations but are cloaked in terminology such as “guidance” and a proposal to OMB to renew data collection. Many of these initiatives obl

Inflation Adjustments for Defense Contractors Under Section 822 of the 2023 NDAA

Section 822 of the 2023 National Defense Authorization Act, Public Law No. 117-7776 (Dec. 23, 2022) provides new authority for some defense contractors and subcontractors to obtain price increases that address the impacts of inflation. The new authority is welcome relief for contractors and subcontractors holding fixed-price defense contracts, which typically do not allow a price increase due solely to inflation. Here are the highlights of the new law: Effective Dates. The Secretary

A Primer on Agency-Level Protests of Federal Procurements – Part II

The Pros and Cons of Agency-Level Protests In my previous post, I wrote about the basics of an agency-level protest. In this post, I will explore some of the main advantages and disadvantages of filing an agency-level protest. So, what are the benefits of filing an agency-level protest? First, they do tend to be quicker and less expensive than GAO or COFC protests, and they allow protestors a second opportunity to pursue their protest at GAO or COFC. In other words, an agency-level prote

A Primer on Agency-Level Protests of Federal Procurements – Part I

The Nuts and Bolts As most federal contractors are aware, unlike commercial contracts, federal contractors may challenge solicitation defects or contract award decisions made by the government through the bid protest process. Although protests at GAO and the Court of Federal Claims receive most of the attention due to the fact that their decisions are ultimately made public (at least in part), another forum also exists for disappointed offerors: protests made directly to the agency. This pos

DOE Considers Using the Defense Production Act to Increase Output and Deployment of Clean Energy Technologies

On October 3, 2022, the Department of Energy (DOE) issued a request for information (RFI) from the public seeking input on ways the DOE can leverage its authority under the Defense Production Act (DPA) to stimulate domestic manufacturing of clean energy technologies. DPA Authority The DPA grants the President authority to shape national defense preparedness programs. National defense, as defined in Section 702 of the DPA, includes programs for energy production or construction, crit

DOE Office of Science Adds Diversity, Equity and Inclusion Requirement to Solicitation Process

The Department of Energy through the Office of Science has announced that beginning in FY 2023, all DOE funding solicitations, including the Office of Science Funding Opportunity Announcements (FOAs) and DOE National Lab Announcements, will require applicants to submit as an appendix to proposal narratives, a “Promoting Inclusive and Equitable Research (PIER) Plan.” The purpose of the PIER Plan is to “describe the activities and strategies applicants will incorporate to promote diversity, equity

The Difference between Differing Site Conditions and Superior Knowledge

The decision of the Court of Federal Claims in Marine Industrial Construction LLC v. United States, 158 Fed. Cl. 158 (2022), includes detailed analysis of several legal issues familiar to contractors facing challenging subsurface conditions on a federal construction contract. In addition to the sufficiency of the contractor’s compliance with the unique notice requirements in FAR 52. 236-2(a), the court’s opinion sheds light on how the elements of proof of a differing site conditions claim compar

DOJ’s New Policies Encourage Voluntary Self-Disclosure, Compensation Tied to Compliance

In a speech given at NYU on September 15, 2022, DOJ Deputy Attorney General Lisa Monaco reviewed new and enhanced DOJ policies regarding criminal enforcement related to corporate entities. Monaco’s comments appear to signal that DOJ will be taking a significantly more aggressive posture in corporate investigations. We summarize briefly the new policy priorities below and also provide suggestions on how to contractors might manage risk and compliance issues accordingly. Monaco discussed five poi

PFAS and Federal Contracting: What Contractors Should Know and Why

Per- and polyfluoroalkyl substances, commonly known as PFAS, are long-lasting chemicals that are quickly gaining notoriety for both their persistence in the environment and their ubiquity in water, air, and soil. Developed in the 1950s, PFAS are used in a wide range of products including firefighting foam, stain-resistant and water-repellant fabrics, nonstick cookware and many others. Concerns over PFAS contamination are mounting and the associated caselaw is growing. Federal contractors could b

OFCCP Intends to Release Contractor Provided 2016-2020 EEO-1 Data Unless Contractors File FOIA Objections to Protect Confidential Information

Key Point Federal contractors and subcontractors who filed Type 2 EEO-1 Reports for the years 2016-2020 are advised that the Office of Federal Contract Compliance Programs (OFCCP) intends to release the data from such filed EEO-1 Reports unless they file written objections asserting Freedom of Information Act (FOIA) objections by no later than September 19, 2022. What information is subject to the FOIA request? The Center for Investigative Reporting (CIR) filed FOIA requests with the OFCC

Nondisplacement of Qualified Workers Under Service Contracts – Proposed Regulations Issued

As we wrote back in November 2021, the Biden Administration issued Executive Order 14055 reinstating most of the concepts from the Obama Administration era nondisplacement Executive Order 13495. Two months after Biden’s imposed deadline of May 2022, the U.S. Department of Labor finally published proposed regulations on July 15, 2022. Generally speaking, EO 14055 and the proposed Nondisplacement regulations require successor contractors to make offers of employment to all predecessor contractor

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