Welcome to the PilieroMazza blog, featuring trending legal insight in the areas of government contracting, general business and corporate issues, labor and employment, and civil litigation matters.

New and Proposed Certified Cost or Pricing Data Requirements Will Shift Burdens upon DoD Contractors

July 12, 2018
By Patrick T. Rothwell
Compliance with the requirements of the Truthful Cost or Pricing Data statute ("TCPD"), which is still commonly known as the Truth in Negotiations Act, has been a significant burden to many small business contractors. Under TCPD, federal contractors are required to submit "certified cost or pricing data" to the contracting officer prior to the award of negotiated contracts where (i) the price exceeds a specific threshold and (ii) an exception to the requirement is not applicable. If there is a significant increase in the contract price as a result of the cost or pricing data not being complete, accurate, or current as certified, the government may seek a price reduction from the contractor.
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No-Poaching Agreements: You Could Be Criminally Liable

July 11, 2018
By Nichole D. Atallah
Earlier this year, the Department of Justice's Antitrust Division (DOJ) issued the Antitrust Guidance for Human Resource Professionals (DOJ Guidelines), which signaled for the first time that DOJ would "proceed criminally against naked wage-fixing or no-poaching agreements." "No-poaching" or wage fixing agreements are a defense against employees leaving their companies to work for competitors in tight markets. However, companies that are not careful and enter into these agreements could face substantial liability, even criminal liability. By way of example, in 2015, Google, Apple, Adobe, and Intel settled a lawsuit for $415 million for having an agreement not to hire the others' employees.
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GAO Denies Protest Based on Cybersecurity Compliance

June 29, 2018
By Jon Williams
Last month, I blogged about DoD's draft guidance on how it will evaluate cybersecurity compliance in the award of contracts. The blog is available here. Based on this draft guidance indicating DoD may use cybersecurity compliance as pass/fail or best value criteria in evaluations, I concluded that bid protests would not be too far behind once DoD finalizes and implements the guidance.
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False Claims Act Cases Involving Set-Aside Contracts Held to More Stringent Requirements Following Escobar

June 28, 2018
By Ambika J. Biggs
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.
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The FLSA Is 80 Years Old—Has It Made Us Wiser?

June 27, 2018
By Nichole D. Atallah
This week marks the Fair Labor Standards Act's ("FLSA") 80th birthday. Because I have a particular affection for birthdays, this occasion is a good time to send the FLSA some overdue love and reflect on how it continues to challenge us today.
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