FUNDAMENTALS OF GOVERNMENT CONTRACTING has appeared and argued before federal and state trial and...
-
Upload
doankhuong -
Category
Documents
-
view
216 -
download
3
Transcript of FUNDAMENTALS OF GOVERNMENT CONTRACTING has appeared and argued before federal and state trial and...
1 2013 ACC-SoCal In-House Counsel Conference
#IHCC13
FUNDAMENTALS OF GOVERNMENT CONTRACTING
January 16, 2012 Anaheim, California
Sponsored by Crowell & Moring LLP
Presenters: Daniel R. Forman Mana Elihu Lombardo
#IHCC12
090701_2 2 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Daniel R . Forman is a partner in Crowell & Moring's Government Contracts Group, resident in the firm's Washington, D.C. office. Mr. Forman's practice focuses on a wide variety of government procurement law, including bid protests, False Claims Act and qui tam litigation, investigations of potential civil and criminal matters, ethics and compliance, contract claims and disputes, GSA schedule contracting, and small disadvantaged business contracting. Dan is also experienced in negotiating and drafting teaming agreements and subcontracts, as well as providing counseling on the interpretation of FAR clauses and solicitations. Dan's practice also focuses on state and local procurement matters, including State False Claims Act issues, lobbying and contingency payment compliance. Dan has been named a top lawyer by the Washington Business Journal and is listed by Chambers. [email protected]
Today’s Presenters
090701_3 3 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Mana Elihu Lombardo is a counsel in Crowell & Moring's Government Contracts Group in Los Angeles. She concentrates her practice on government contracts litigation and counseling. Mana has extensive experience defending companies in fraud matters under the False Claims Act (FCA). She also conducts internal investigations and training programs on ethics and public sector contract compliance as well as procurement fraud.
Mana has appeared and argued before federal and state trial and appellate courts and has extensive experience developing and implementing litigation strategy as well as managing the process of large litigation matters. She works closely with clients to guide them through mediation and settlement proceedings.
Today’s Presenters
090701_4 4 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
High stakes and high visibility
U.S. Government purchases more than $500 billion/year from the private sector – Department of Defense spends the most Air Force, Navy, Army
Expanded enforcement and oversight
Unique tools to investigate and enforce
The Compliance Landscape
090701_5 5 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Public Sector Contracts Are Unique Special regulations and contract terms
– Convenience terminations – Unilateral changes – Data Rights Clauses
Litigation limits (sovereign immunity)
Audit/investigations
Fines/penalties/jail/suspension/debarment
Compliance programs to meet unique requirements
Freedom of Information Act Requests
The Compliance Landscape
090701_6 6 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Audits and investigations – IGs, DOJ, FBI, DCAA
Federal & State Statutes – False Claims Acts – False Statements Acts
Suspension & Debarment Contract Termination Bid Protests
– Enforcement of rules by competitors
Government Enforcement Tools
090701_7 7 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Government’s Principal Anti-Fraud Weapon – Suit alleging contractor defrauded the government by
submitting false claims for payment – Over $35 billion recovered since the 1986 Amendments about 2/3 from qui tam suits
Heightened Enforcement Under Obama Administration – 2009 and 2010 amendments strengthened and
broadened the False Claims Act – Since January 2009, $13.3 billion recovered – Fiscal year ending Sept. 2012 – $4.9 billion recovered – largest one year total ever
Civil False Claims Act
090701_8 8 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Qui Tam Provisions – 15%-30% bounties for whistleblowers – Government required to investigate and make an
intervention decision
Severe Sanctions – Treble damages – $5,500 -$11,000 penalty per false claim/statement
California False Claims Act – Recently amended to mirror federal law
Civil False Claims Act
090701_9 9 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Requires contractors to timely disclose credible evidence of violations of certain criminal laws (fraud, conflict of interest, bribery, or gratuity violations found in Title 18), violations of the False Claims Act and significant overpayments.
Amendments to FAR added the following: – Basis for suspension and debarment – FAR clause for use in government contracts and
subcontracts
Mandatory Disclosure
090701_10 10 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Purpose – To protect the public interest – not to punish – Key concept of “present responsibility” – Details in FAR 9.4
Who can be suspended/debarred? – Individuals – Entities (e.g., corporations, partnerships, divisions, or
business units within an entity) – Parents and affiliates, if warranted – Prime contractors, subcontractors, and/or participants
at any tier
Suspension and Debarment
090701_11 11 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Increased activity due to: – Enhanced interagency cooperation – Reporting requirements – Competitors reporting directly to SDO – Media reports of contractor misconduct – Agency response to Congressional criticisms
Three key trends – Focus on number of suspensions and debarments – Focus on fact-based suspensions – Focus on conduct “unrelated” to government contract
Suspension and Debarment
090701_12 12 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Governing body with oversight of the program
Assignment of internal responsibility for the program – People, other resources, organizational placement
(audit, legal, compliance)
Internal controls – Written materials – Training (new employee, annual, general, specialized,
refresher) – Separation of duties, etc.
Compliance Program Infrastructure
090701_13 13 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Internal mechanisms for employees and other stakeholders to raise concerns, anonymously
Self-monitoring and auditing
Corrective action – Discipline – External disclosures – Restitution – Root cause analysis
Compliance Program Infrastructure (continued)
090701_14 14 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
The Procurement Integrity Act and Off-Limits Information
Prohibitions on Gifts and Entertainment
The Anti-Kickback Act
Employment Discussions and Hiring Government Employees
Ethics & Compliance
090701_15 15 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Rules on “off-limits” government or competitor information – Procurement Integrity Act, 41 U.S.C. § 423 Applicable to dealings with all government agencies
– Federal & state trade secrets laws
Procurement Integrity Act Establishes Two Main Types of Off-Limits Information – Government source selection information – Competitor information
Off-Limits Information
090701_16 16 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Doesn’t matter where you receive the information from
Doesn’t matter how you receive the information Red flags
Off-Limits Information
090701_17 17 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Use formal communication methods – Communicate with Contracting Officer – Put it in writing
Questionable information – Do not accept – Do not distribute – Do not discuss its contents
Contact Legal Department
Off-Limits Information – How Can A Government Contractor Protect Itself?
090701_18 18 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
The contractor has a right to have its proprietary and intellectual property protected
Mark title page of all company proposals with an appropriate legend: – Example: this proposal includes data that shall not be
disclosed outside the Government and shall not be duplicated, used or disclosed – in whole or in part – for any purpose other than to evaluate this proposal.
Mark each sheet of data with an appropriate legend: – Example: Use or disclosure of the data contained on this sheet
is subject to the restriction on the title page of this proposal – Example: [Contractor Name] Proprietary/Trade Secrets
Off-Limits Information – How Can A Government Contractor Protect Itself?
090701_19 19 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Basic federal rule – With few exceptions, cannot offer or give anything of
value to a government employee – Government employees cannot accept gifts from
prohibited sources (e.g., contractors) or gifts given because of the employee’s official position
Gifts, Gratuities & Entertainment
090701_20 20 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Anything of value includes food, alcohol, discounts, airplane tickets, lodging, samples, admissions fees, transportation, training, tickets to theater and sporting events, flowers.
Covered Gifts, Gratuities & Entertainment
090701_21 21 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Some exceptions: – $20 per occasion per source/$50 per calendar year per
source – Modest food & refreshments not part of a meal – Free attendance at widely attended gathering (but not
travel, lodging, entertainment, or meal expenses)
Gifts, Gratuities & Entertainment
090701_22 22 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Exceptions to the exceptions: – Can never provide gift to influence
performance of an official act – Government employees cannot solicit
or coerce offering of a gift – Government employees cannot accept gift on basis
so frequent that reasonable person would be led to believe that the employee is using public office for private gain
Gifts, Gratuities & Entertainment
090701_23 23 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Pitfalls “Everyone does it” “We’re friends” “Sometimes she pays; sometimes I pay” “No one will know” “It’s just a sample”
Traps for the unwary Contractor personnel assisting the government Industry wining/dining practices off limits
Gifts, Gratuities & Entertainment
090701_24 24 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Basic rule – restrictions on entertainment and gift-giving – Cannot provide, attempt to provide, offer, solicit,
accept, or attempt to accept a kickback
What is a kickback? – Anything of value given to improperly obtain or reward
favorable treatment under a federal government prime or subcontract, at any tier
Federal Anti-Kickback Act
090701_25 25 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Improper intent can be inferred from the circumstances No bright line dollar value provided in the rules Includes improper benefit to employees or the
company
Includes contractor personnel or vendors assisting the government
Federal Anti-Kickback Act
090701_26 26 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Two broad categories of restrictions Employment discussions Post-employment restrictions
(“Revolving door” restrictions)
Hiring Government Personnel
090701_27 27 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
“Organizational conflict of interest means that because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” FAR 2.101.
Organizational Conflicts of Interest
090701_28 28 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Three Basic Categories Unequal access to information
Impaired objectivity
Biased ground rules
Organizational Conflicts of Interest
090701_29 29 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Streamlines federal acquisition process – Federal agencies can acquire commercial products
and services directly from commercial suppliers
Risk Areas: – Most Favored Customer Pricing – Industrial Funding Fee
GSA Schedules Contracts
090701_30 30 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Legal challenges to the federal government’s conduct of procurements
Statutorily created right to challenge procurement ground rules (Solicitation terms) and evaluation and award decisions
Provides offerors an opportunity to ensure a fair and objective chance to compete for and win government business
If you don’t know what the procurement rules and your rights are or when to challenge issues, you may lose your ability to protest
Bid Protests
090701_31 31 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Sequestration: OMB applies automatic, indiscriminate, across-the-board budget cuts of $1.2 trillion – Scheduled to begin on Jan. 2, 2013 – Reduce discretionary spending by $109 billion/year – Split evenly between defense and nondefense
December 2012: OMB directed agencies to begin preparing for sequestration – agencies planned to furlough employees, reduce
office hours, and scale back or eliminate contracts
January 2013: Congress delays sequestration cuts by two months
Sequestration
090701_32 32 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Delayed Sequestration – Contractors struggle with uncertainty, stifling of
long-term business plans and investment
Sequestration Cuts – Reduced agency resources means fewer federal
contracts awarded – Down-scoping and termination of existing contracts – Agencies likely to select lowest price, technically
acceptable evaluations, and use their indefinite-quantity, indefinite-deliver contract vehicles
Sequestration – Impact on Contractors
090701_33 33 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Men must turn square corners when they deal with the Government.
Justice Oliver Wendell Holmes, Jr., 1920
Conclusion
090701_34 34 #IHCC13 2013 ACC-SoCal In-House Counsel Conference
Daniel R. Forman
Mana Elihu Lombardo
Questions?
000000_35
9th Annual In-House Counsel Conference January 16, 2013 (Anaheim, CA)
#IHCC13 35
www.acc.com/chapters/socal/
Daniel R. Forman
Page 1 of 1
Daniel R. Forman is a partner in Crowell & Moring's Government ContractsGroup, resident in the firm's Washington, D.C. office.
ExperienceMr. Forman's practice focuses on a wide variety of government procurementlaw, including bid protests, False Claims Act and qui tam litigation,investigations of potential civil and criminal matters, ethics and compliance,contract claims and disputes, GSA schedule contracting, and smalldisadvantaged business contracting. Dan is also experienced in negotiatingand drafting teaming agreements and subcontracts, as well as providingcounseling on the interpretation of FAR clauses and solicitations. Dan'spractice also focuses on state and local procurement matters, including StateFalse Claims Act issues, lobbying and contingency payment compliance. Hehas been involved in bid protest litigation in six states and the District ofColumbia. Dan has been named one of the top lawyers in the governmentcontracts field by Chambers USA.
Education
Vassar College, B.A. Political Science (1994) Men's Varsity Soccer
Benjamin N. Cardozo School of Law, J.D. (1997) cum laude, LawReview, The Order of the Coif
Daniel R. [email protected]
Washington1001 Pennsylvania Avenue, N.W.Washington, DC 20004-2595Phone: 202.624.2504Fax: 202.628.5116
Practice Areas Government Contracts Technology, Media &
Telecommunications Homeland Security
Mana E. Lombardo
Page 1 of 1
Mana Elihu Lombardo is a counsel in Crowell & Moring's GovernmentContracts Group in Los Angeles. She concentrates her practice on governmentcontracts litigation and counseling. Mana has extensive experience defendingcompanies in fraud matters under the False Claims Act (FCA). She alsoconducts internal investigations and training programs on ethics and publicsector contract compliance as well as procurement fraud.
In addition, Mana handles a wide range of civil and commercial litigationmatters, including contract disputes, business torts, and labor andemployment issues. Mana has appeared and argued before federal and statetrial and appellate courts and has extensive experience developing andimplementing litigation strategy as well as managing the process of largelitigation matters. She works closely with clients to guide them throughmediation and settlement proceedings.
Education
University of California at Berkeley, B.A. (2000) with honors
University of California, Los Angeles School of Law, J.D. (2003)
Mana E. [email protected]
Los Angeles515 South Flower St., 40th FloorLos Angeles, CA 90071Phone: 213.443.5563Fax: 213.622.2690
Practice Areas Government Contracts Litigation False Claims/Qui Tam