Bona Fide Needs with Arnold & Porter and the PubKGroup

Ep 1.06: 2023 Annual Review Preview with Arnold & Porter’s Craig Holman

In this episode of Bona Fide Needs, Arnold & Porter Partners Mike McGill and Craig Holman  preview the Bid Protest panel from Pub K's upcoming 2023 Annual Review.
From January 9 - 12, three dozen top government contracting practitioners will break down the most important and intriguing developments affecting federal contractors and their counsel. Government officials, private sector attorneys, and in-house experts will examine 2022's key litigation, enforcement activity, agency regulatory activity, and developments from Capitol Hill and the White House.
Pub K's Annual Review is free to the public. To register, visit Pub K online at https://pubkgroup.com/govcon-annual-review-2023/.

Ep 1.05: Pub K Group’s 2023 Annual Review Preview with Alan Chvotkin

In this episode of Bona Fide Needs, Arnold & Porter Partner Mike McGill and PubKGroup President Alan Chvotkin preview Pub K's upcoming 2023 Annual Review. 
From January 9 - 12, three dozen top government contracting practitioners will break down the most important and intriguing developments affecting federal contractors and their counsel. Government officials, private sector attorneys, and in-house experts will examine 2022's key litigation, enforcement activity, agency regulatory activity, and developments from Capitol Hill and the White House. 
Pub K's Annual Review is free to the public. To register, visit Pub K online at https://pubkgroup.com/govcon-annual-review-2023/. 
 
 
 

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 Overview01:45 - Mike McGill’s summary of regulatory and policy developments19:00 - Bill Olver’s summary of headline developments33:30 - Mike’s discussion with Chuck Blanchard on DPA, OTA, and FMS1:18:00 - 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
 

Ep 1.03: The Impact of PFAS Controls on Federal Procurement

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 headline feature this month is Mike’s broad discussion with Arnold & Porter partner Judah Prero on the interplay between the regulation of the chemical PFAS and federal procurement, which is part of the Biden Administration's broader effort on climate change and environmental sustainability. 
Mike also examines new procurement rules, including a FAR rule on the use of small business procedures for overseas procurements, a final DFARS rule on commerciality determinations, and a final DFARS rule on the validation of intellectual property rights and data related to commercial products. Mike also revisits GSA's acquisition letter  on economic price adjustments to combat inflation. 
Bill rounds out the episode with a brief update on important developments for federal contractors, including OMB's Buy American guidance for infrastructure projects, OFCCP guidance on contractor compliance evaluations, the Interagency Suspension and Debarment Committee's report on S&D activity for FY2020, as well as regulatory, legislative, and cybersecurity activity. 
 
Show notes
0:20 – Introduction and Overview
1:45 – Recent Regulatory Developments
12:00 – Federal Procurement Headlines
23:15 – The Intersection of PFAS Regulation and Federal Procurement
1:10:00 – Practical Wrap Up
1:14:00 – Credits and copyright
 
Further Reading
Arnold & Porter Environmental Edge Blog: Federal Procurement and PFAS: Important Recent Developments
EPA: Recommendations of Specifications, Standards, and Ecolabels for Federal Purchasing
EPA: How EPA’s Recommended Standards and Ecolabels Address Per- and Polyfluoroalkyl Substances (PFAS)
Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure
White House Directive Promotes Quantum Computing for Cyber Infrastructure
Federal Agencies Likely to Get New Cybersecurity Guidance ‘In Coming Weeks’
CMMC Interim Rule Could Land in May
Can Small Businesses Keep up with Defense Cyber Requirements?
Pentagon Eyeing the Cloud to Help Firms Meet CMMC Cybersecurity Requirements
DOD Expands Vulnerability Disclosure Program to Contracting Base in Pilot
New OFCCP Compliance Review Directions
ISDC Report: Suspensions and Debarments Down from Pre-Pandemic Levels
H.R.7185 - Federal Contracting for Peace and Security Act
House Oversight and Reform Committee: Federal Contracting for Peace and Security Act
S.3905 - Preventing Organizational Conflicts of Interest in Federal Acquisition Act
Former Health Care Staffing Executive Convicted of Obstructing FTC Investigation into Wage-Fixing Allegations
Jury Acquits DaVita, ex-CEO Kent Thiry in Landmark Antitrust Prosecution of Non-Poaching Agreements
Notice of Proposed Rulemaking: Set-Asides for Indian-Owned Businesses
Small Business Size Standards: Agriculture, Forestry, Fishing and Hunting; Mining, Quarrying, and Oil and Gas Extraction; Utilities; Construction
What Federal Agencies Need to Know Now About the New Lease Accounting Standard
 

Ep 1.02: The Impact of Russia Sanctions on U.S. Firms

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 headline feature this month is Mike’s broad discussion with Arnold & Porter partner Soo-Mi Rhee on the economic sanctions imposed by the United States government following Russia's invasion of Ukraine, and the impact of those sanctions on U.S. companies, including federal contractors.
Mike also breaks down new procurement rules, including a new FAR rule amending the Buy American Act implementing regulations, a Department of Defense final rule on enhanced debriefings, and a proposed USDA rule requiring contractors to disclose labor and employment violations.
Bill rounds out the episode with a brief update on important developments for federal contractors, including recent action by the Biden administration on pay equity, GSA's response to inflation for Federal Supply Schedule contractors, and Assistant Attorney General Kenneth Polite's comments on DOJ's white collar enforcement.
Show notes
0:20 - Introduction and Overview
2:15 – Recent regulatory developments
17:00 - Federal Procurement Headlines
23:45 – Impact of the Russia Sanctions on U.S. Business
1:02:00 - Practical Wrap Up
1:03:00 - Credits and copyright
 
Headlines referenced in this episode
Ukraine-Russia Crisis: Trade Sanctions & Export Controls
Federal Acquisition Regulation: Amendments to the FAR Buy American Act Requirements
Defense Federal Acquisition Regulation Supplement: Postaward Debriefings (DFARS Case 2018-D009)
Proposed Amendments to the Agriculture Acquisition Regulation (AGAR)
Executive Order on Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency; White House, March 15, 2022; 
Directive (DIR) 2022-01, Department of Labor Office of Federal Contract Compliance Programs, March 15, 2022
“AAG Polite: Support Compliance Now or Pay Later”; Bill Olver, PubKCompliance, April 1, 2022
Justice Department Announces Director for COVID-19 Fraud Enforcement; Department of Justice, March 10, 2022
Medical Services Contractor Pays $930,000 to Settle False Claims Act Allegations Relating to Medical Services Contracts at State Department and Air Force Facilities in Iraq and Afghanistan; Department of Justice, March 8, 2022
Temporary Moratorium on Enforcement of Certain Limitations Contained in Certain GSA Economic Price Adjustment (EPA) Contract Clauses; General Services Administration, March 17, 2022
Defense Federal Acquisition Regulation Supplement: Reauthorization and Improvement of Mentor-Protégé Program (DFARS Case 2020-D009); Federal Register, February 28, 2022
Defense Federal Acquisition Regulation Supplement: Revision of Definition of “Commercial Item” (DFARS Case 2018–D066); Federal Register, March 18, 2022
 

Ep 1.01: Wage Fixing and No-Poach Agreements

In this first proper 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 primary feature this month is Mike’s in-depth discussion with Andre Geverola, head of Arnold & Porter's cartel investigations practice and former Director of Litigation for the Justice Department’s Antitrust Division, about DOJ's scrutiny of wage fixing and no-poach agreements in the defense industry. In our second feature, Bill speaks with Arnold & Porter partner Craig Margolis for a timely overview of the Department of Justice's False Claims Act recoveries for fiscal year 2021.  Mike and Bill round out the episode with updates on the cases, regulations, and other developments relevant to federal contractors.
 
Show notes
0:30 - Introduction and Overview
4:00 - Federal Procurement Headlines 
8:00 - FY2021 False Claims Act Recoveries
15:30 - DOJ Enforcement of No-Poach Agreements in Defense Industry
47:00 - Practical Wrap Up 
56:00 - Credits and copyright 
 
A&P FCA Qui Notes Blog
A&P Article “President Biden Orders a $15.00 Minimum Wage for Some Federal Contractor Employees Effective Next Year”
A&P Article “The Squeaky Wheel Gets Dismissed: GAO Reinforces the Need for Contractor Vigilance When Raising Pre-Award Issues With the Agency”
Executive Order on Use of Project Labor Agreements For Federal Construction Projects
President Biden Signs National Security Memorandum to Improve the Cybersecurity of National Security, Department of Defense, and Intelligence Community Systems
Memorandum on Improving the Cybersecurity of National Security, Department of Defense, and Intelligence Community Systems
Lockheed Martin Walks Away from $4.4B Aerojet Rocketdyne Acquisition
Protester Can’t Prove Its Entitled to All Costs Incurred Due to Pandemic-Caused Delay; Nues Inc. v. Department of Health and Human Services, CBCA 7165
DOJ Announces $5.6 Billion in FCA Recoveries for FY2021
Department of Defense: State of Competition within the Defense Industrial Base
COFC Renounces GAO Rule, Declines to Find Offeror Has Duty to Notify Agency of Changes in Personnel
Communications with Agency Constituted an Agency Protest, Which Set the 10-Day Clock Running for a GAO Protest
OFCCP Contractor Portal
Government Transition from DUNS Number to New Unique Entity Identifier Will Occur on April 4, 2022