Ep 1.04: How You Can Respond to Defense Production Act Orders

In this episode of Bona Fide Needs, Arnold & Porter Partner Mike McGill and PubKGroup Managing Editor Bill Olver cover a broad range of recent legal developments affecting government contractors.

Our feature this month is Mike’s in-depth discussion with Arnold & Porter partner Chuck Blanchard, who previously served as general counsel of the Air Force and earlier the Army. Mike and Chuck discuss a range of topics, including the Defense Production Act, Other Transaction Authority, and Foreign Military Sales.

The episode starts with Mike highlighting several key regulatory and policy developments that you may have missed over the summer, including the Department of Labor’s proposed rule on non-displacement of service employees, the Office of Personnel Management’s proposal to update “ban the box” rules for federal employees and the implications for the upcoming rules applicable to federal contractors, the Department of Defense’s guidance to contracting officers related to assessing and enforcing contractor cybersecurity compliance, and the Department of Defense’s guidance on economic price adjustments to combat inflation.

Next, Bill flags several notable PubK headlines, most involving recent significant developments involving the False Claims Act. Bill provides an overview of the Supreme Court's consideration of cases involving the Rule 9(b) particularity standard and DOJ's authority to dismiss qui tam complaints, as well as other cases involving causation and the Anti-Kickback Statute. This month's headlines also touch on GAO case decisions and two court decisions that impacted regulatory issues, including the Chevron deference.

 

Show notes

0:25 - Introduction and Overview
01:45 - Mike McGill’s summary of regulatory and policy developments
19:00 - Bill Olver’s summary of headline developments
33:30 - Mike’s discussion with Chuck Blanchard on DPA, OTA, and FMS
1:18:00 - Credits and copyright

Music credit: Scratch the Itch by Marc Walloch (Shutterstock)

Links

Department of Labor Proposal Rule Implementing EO 14055, Nondisplacement of Qualified Workers Under Service Contracts.

Office of Personnel Management Proposed Rule Implementing Fair Chance to Compete for Jobs Act of 2019.

Department of Defense Memorandum "Contractual Remedies to Ensure Contractor Compliance with Defense Federal Acquisition Regulation Supplement Clause 252.204-7012, for contracts and orders not subject to Clause 252.204-7020; and Additional Considerations Regarding National Institute of Standards and Technology Special Publication 800-171 Department of Defense Assessments."

Department of Defense Memorandum “Guidance on Inflation and Economic Price Adjustments.”

Arnold & Porter Alert “Expanded Use of the Defense Product Act and Focus on Building the Domestic Supply Chain: What Companies Need to Know.”

Arnold & Porter Webinar “Understanding and Leveraging the Defense Production Act.”

Arnold & Porter Alert “DoD Ushers in CMMC and NIST SP 800-171 Assessment Methodology With Interim Rule.”

Justice Department Sues to Block Booz Allen Hamilton’s Proposed Acquisition of EverWatch

Booz Allen says Acquisition Aimed at Lockheed, Raytheon, ‘Billions’ in Contracts

GAO Rejects Agency’s Tortured Explanation as to How a Key Person Who Resigned Was Still Technically Available. If a Key Person Leaves After Proposal Submission, When Do They Become “Unavailable”?

United States Court of Appeals for the DC Circuit No. 20-5291; the Humane Society of the United States v. United States Department of Agriculture

Supreme Court of the United States No. 20-1530; West Virginia, et al., v. Environmental Protection Agency, et al.;

Supreme Court restricts the EPA's authority to mandate carbon emissions reductions

District Court Adopts Swift Standard of Unfettered Right of DOJ to Dismiss Qui Tam Actions

Nothing to See Here: Solicitor General Recommends That SCOTUS Deny Cert. in Eleventh Circuit Case on Rule 9(b)

Fraudulent Activity, Without the Submission of False Claims, Insufficient to Support Qui Tam Case

Seventh Circuit Reverses Ruling on Knowledge Element, Finding Defendant Had to Know High-Cost Services Were Material to High Capitation Rate

Dissent: Materiality Not Shown Where Defendant Failed to Provide One Service Out of Many Possible Services

CBO Issues Long-Awaited Analysis of Proposed FCA Amendments

Court Split: Sixth Circuit Says FCA Anti-Retaliation Provision Also Applies to Former Employees

Eighth Circuit: But-For Causation Required to Show FCA Liability Arising from AKS Violations

Eighth Circuit Puts the Teeth Back in the AKS’s Causation Requirement, Creating Yet Another FCA Circuit Split

Second Circuit: Anti-Kickback Statute Liability Doesn't Require Corrupt Intent