Litigation & Dispute Resolution

BLOG: SCOTUS Strengthens Protections for Federal Government Contractors Under FOIA

August 9, 2019
By Patrick K. Burns
The Freedom of Information Act ("FOIA" or "the Act") provides private citizens access to information in the possession of government agencies that is not otherwise publically available. Unfortunately, an agency's disclosure can potentially include confidential information of a government contractor, such as proposal content, pricing structures, and other proprietary material. Such disclosures are concerning because publically disclosed information can be used by competitors to the great detriment of the contractor. Luckily for contractors, FOIA's power is not unlimited. Indeed, Congress restricted its scope through a series of exemptions that protect certain information from disclosure that can be of use to contractors when a competitor or private party seeks a company's proprietary information that is in the hands of the government.
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BLOG: Have the Flood Gates Opened?: Cisco Settles First-Of-Its-Kind Cybersecurity False Claims Act Litigation

August 2, 2019
By Matthew E. Feinberg
On July 31, 2019, a False Claims Act matter pending in the United States District Court for the Western District of New York was unsealed, revealing an $8.6 million dollar settlement that may have far-reaching implications on government contractors. The litigation, United States, et al., ex rel. James Glenn v. Cisco Systems, Inc., was initiated in 2011 on behalf of the federal government and a number of state governments, after a Denmark-based employee of a Cisco affiliate was terminated allegedly for reporting a flaw in one of Cisco's video surveillance products. With the rapidly developing role of cybersecurity in federal procurements, government contractors should clearly understand their obligations, representations, and certifications to avoid False Claims Act liability and ensure compliance.
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BLOG: Court of Federal Claims Denies Oracle Protest of JEDI Contract: Is This It For Oracle?

July 26, 2019
By Lauren Brier
The Department of Defense ("DoD") first released the Joint Enterprise Defense Infrastructure ("JEDI") cloud contract on July 26, 2018. One main purpose of the JEDI contract, as listed in the DoD's published "Determination and Findings," was to acquire foundational commercial cloud technologies that would "enable war fighters to better execute a mission that is increasingly dependent on the exploitation of information." With this purpose in mind, the DoD made a controversial decision to move forward with a single-award approach to procure its cloud technologies, a critical decision that has since stymied the JEDI procurement. Most recently, the U.S. Court of Federal Claims dismissed a pre-award protest of the DoD's decision to make a single-source award, which has since allowed the JEDI contract to move forward. Microsoft and Amazon are the only two viable offerors that remain capable of receiving the award. The DoD's decision to award to only one of these large vendors could form a trend for agencies to move away from multicloud strategies. It will be important for cloud vendors to keep an eye on whether JEDI succeeds in its base period, as it will likely shape other agencies decisions on whether a single-award approach for future cloud strategies is a trend worth following.
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BLOG: Cybersecurity, Implied Certifications, and the False Claims Act

July 22, 2019
By Isaias "Cy" Alba IV
As I am sure many of you know and have read about already, the first False Claims Act ("FCA") case, US Ex rel. Markus v. AeroJet Rocketdyne Holdings, Inc., et al., No. 2:15-cv-2245, has been filed in the Eastern District of California by a disgruntled former Director of Cyber Security Compliance and Controls, and it survived a motion to dismiss in May of this year. When the existence of the AeroJet case is layered over the U.S. Supreme Court's findings in Universal Health Servs., Inc. v. US Ex rel. Escobar, 136 S.Ct. 1989 (2016), which confirmed FCA liability based upon implied certifications, a worrisome result can occur. Namely, can the disgruntled employees, aggrieved subcontractors, consultants who see an opening for a quick buck, spouses in the midst of a contentious divorce, or any other random individual with a basic knowledge of your IT systems file an FCA case against you claiming that you impliedly certified, by merely accepting a federal contract, that you were in full and unequivocal compliance with all NIST 800-171 standards and that you had all documentation required by DFARS 252.204-7012. The answer is absolutely "YES." Small to mid-sized government contractors should note that their lack of diligence can be used as evidence of recklessness which gives rise to FCA liability.
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BLOG: How Government Contractors Can Take Advantage of CPARS Trends to Win (and Maintain) Federal Contracts

July 19, 2019
By Samuel S. Finnerty
On July 18, 2019, the Professional Services Council hosted an important event covering Contractor Performance Assessment Reporting System ("CPARS") trends, their impact on contractor past performance ratings, and the consequence they have on winning federal contracts. As one of the speakers at this event, PilieroMazza's Samuel Finnerty offered recommendations on what government contractors can do now to proactively engage and manage their CPARS ratings and position themselves for future growth.
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