Published by WestLaw Journal for Government Contracts: Two years have passed since the U.S. Supreme Court issued Universal Health Services, Inc. v. United States ex rel. Escobar, a key False Claims Act ("FCA") case that resolved a circuit court split regarding the scope and validity of the implied false certification theory and established that the materiality standard for FCA cases is "demanding." Since that time, lower courts have been implementing those standards to varying effects. The trend has been favorable for companies facing FCA cases that allege false certifications related to qualifications to participate in socio-economic contracting programs.
Published by Set-Aside Alert Newsletter: During the past few years, the number of False Claims Act (FCA) civil cases has grown exponentially. While most of this growth has come from an increase in the number of actions involving fraud in the health care industry, plaintiffs also have found the U.S. Small Business Administration's set-aside programs to be fertile ground for FCA claims. As a result, the government has focused its resources on investigating fraud in these programs.
Published by Set-Aside Alert Newsletter: In Section 809 of the National Defense Authorization Act for FY 2016, Congress created a panel, known as the Section 809 Panel, to review and to provide recommendations on how to streamline and improve the Department of Defense's (DOD) acquisition process. The Section 809 Panel issued the first volume of its report in January 2018. The second volume, slated for release in June 2018, may include sweeping recommendations for a drastic overhaul of the bid protest process for DOD procurements. While a successful offeror on any given procurement may stand to benefit from these significant changes, overall, this potential overhaul does not bode well for contractors and would undermine the integrity of the procurement process.
Published by Set-Aside Alert Newsletter: The Office of Federal Contract Compliance Programs ("OFCCP") is a federal agency charged with ensuring that approximately 200,000 federal contractors refrain from discrimination and take affirmative action to provide equal employment opportunities for certain protected classes of workers. In recent years OFCCP has developed a reputation as being difficult to work with to resolve concerns and differences arising out of compliance audits. Additionally, compliance requirements under the jurisdiction of the OFCCP are generally not well understood. On May 1 , OFCCP took the first step in changing these perceptions by announcing its action plan to provide contractors with more compliance information and training and committing to more transparent investigations ("Action Plan").
Published by Set-Aside Alert Newsletter: Size and status representations for task orders issued under MultipleAward Contracts (MAC) and schedules have become a controversial and complex issue. Generally, the Small Business Administration's (SBA) size rules state that representations made at the time of initial offer are valid throughout the life of a contract. This means that all representations made with respect to a MAC will be valid for each order issued against the contract, unless a contracting officer requests recertification in connection with a specific order.