Legal Updates
The U.S. Supreme Court decides a Circuit Split: Full Analysis of the FCA Liability Implied Certification
The False Claims Act (“FCA”) imposes significant penalties on those that defraud the Government. The focus of the FCA is on those that present or induce others to present false or fraudulent claims to the Government for payment. There has been a split between the circuit courts in regards to how far that liability extends. Specifically, some courts have held contractors liable for...
Christine Williams of Outlook Law, and John Klein, Associate General Counsel of the SBA and the Suspension and Debarment Official presented a basic overview of the regulations governing mergers and acquisitions with respect to size and the 8(a) Program.
Christine and John covered what mistakes they most often encounter when 8(a) firms go through the merger and acquisition process. Full presentation below. Mergers with Klein and Williams
Christine Williams from Outlook Law and John Klein from the SBA presents the new May 31, 2016 SBA regulations at the national 8(a) ASSOCIATION CONVENTION
She presented with John Klein, Associate General Counsel for the SBA as well as the Suspension and Debarment Official, and another attorney, Jon DeVore. The regulations represent some substantial changes on how small businesses calculate mandatory performance levels/limitations on subcontracting, similarly situated entity and performance, and some new affiliation exceptions, just to name a few. ...
DOD Small Business Contracting: Use of Sole-Source 8(a) Contracts over $20 Million Continues to Decline GAO -16-557
GAO-16-557 The GAO released a report on the decline of sole-source contracts to SBA’s Program Section 8(a) firms (8(a)) owned by tribes and Alaska Native Corporations. While the stark decline of the numbers is predictable and continuous because of a midnight amendment in Congress, the language and approach of the GAO is somewhat dismaying because of its total dismissal of the harm done to...
The SBA Regulations Implementing the NDAA 2013 Amendments
Final sweeping rules issued by the SBA were implemented today to apply provisions of the National Defense Authorization Act, which pertain to performance requirements applicable to small businesses and socioeconomic program set-aside contracts as well as small business subcontracting. It also amends the SBA’s regulations relating to the nonmanufacturer rule and affiliation rules. Finally, this...
Bid Protests and the SBA: The Wrong Forum Will Defeat You: GAO Defers
On April 27, 2016, the SBA’s Office of Hearings and Appeals (“OHA”) issued an order dismissing a size appeal. The protestor had filed the original size protest in front of the General Accountability Office (“GAO”), rather than the SBA’s Area Office. The protestor was hoping for an automatic stay with the GAO, but did not receive it and then went directly to OHA. In dismissing...
GAO Proposes a Filing Fee for Bid Protests
The GAO in an interim rule, link below, is proposing to install a $350.00 filing fee for bid protests. The GAO is developing an electronic filing systems, called the Electronic Protest Docketing System (EPDS). The GAO asserts the fee is necessary to implement and support EPDS. As many clients have commented over the year that anyone seems to be able to file a frivolous protest without...
Civil Penalties for False Claim Act Violations Set to Significantly Increase in August
On May 2, 2016, an interim final rule was published regarding False Claim Act (FCA) civil penalties. A brief recount of this adjustment is necessary to get the scope of how large the adjustment is pursuant to 31 U.S.C. 3729 (nearly doubles). There is also another adjustment contemplated by formula beginning in January of 2017. Briefly summarized below are the increases in the FCA penalties and...
The False Claims Act and Implied Liability is Heard in Front of the US Supreme Court
There is currently a circuit split on implied certification for False Claim Act (“FCA”) cases. That is, some federal circuits hold that a contractor impliedly certifies its data without having an explicit certification or affirmative representation of truth. This type of circuit split makes a Supreme Court decision ripe to reconcile the circuits or rule which circuit’s holding is correct....
The Army Tries to Move Away From the Use it or Lose it Budget Model
On April 15, 2016, the Army sent out a new directive, which is attached. The directive gives guidance to move away from the “use it or lose it” funding for programs, which often result in the end of the Government’s fiscal year spending uptick. That is, the Army is trying to implement a new policy that if funds are not used for a program, that the program does not automatically suffer a...