Whistleblowers are a common character in investigations into governmental abuse. They famously have exposed covert government surveillance programs, political corruption scandals, and even led to the impeachment of the president of the United States. Some statutes also empower whistleblowers to bring claims against private businesses on behalf of the government for financial misconduct involving fraud,
Government Contracts & Investigations Blog
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COVID-19 Judicial Task Force Proposes Protocols to Reinstate Jury Trials
By Kate Ross & Sarah Aberg
On June 4, 2020, the Jury Subgroup of the COVID-19 Judicial Task Force of the U.S. federal courts issued a report (the “Report”) containing recommendations for conducting jury trials and convening grand juries during the pandemic. Although many federal courts have continued to hold remote hearings and conferences over the last few months, jury trials…
Materiality Concerns For CARES Act Enforcement Cases
With the Department of Justice’s (DOJ) decision to drop charges against Michael Flynn, materiality has come to the forefront of popular legal discourse. At the same time, prosecutors and whistleblowers will carefully consider enforcement/false claims actions against entities who may have wrongfully received relief funds under the Coronavirus Aid, Recovery, and Economic Stability Act (CARES…
DOD CMMC Update – Third Party Auditors Gear Up and COTS Providers Get a Pass
A lot has happened since the Department of Defense (“DOD”) released its Cybersecurity Maturity Model Certification (CMMC) v. 1.0 back in February (see our prior discussion here). In addition to developments with the CMMC Accreditation Body (“CMMC AB”), DOD has clarified applicability of the program to Commercially available off-the-shelf (“COTS”) providers and the impact…
Using “Prospective Hindsight” To Identify And Mitigate Risks During A Crisis
In 1657, mathematician Blaise Pascal commented in a letter to his church leaders “I have made this longer than usual because I did not have time to make it shorter.” More than 100 years later, another Frenchman, Napoleon Bonaparte, offered a similar remark to his valet as he prepared to head out for battle. “Dress…
Not So Fast – FDA Retracts Authorization for Some Respirators Made in China
Immunity under the Public Readiness and Emergency Preparedness (“PREP”) Act is a moving target for government contractors and other companies manufacturing or distributing personal protective equipment (PPE) in the COVID-19 public health response. We wrote previously about new liability protections afforded to manufacturers and distributors of certain face masks approved by National Institute for Occupational…
Small Business Money Grab Under the CARES Act Brings Enforcement Risks
The devastating economic impact of the COVID-19 pandemic already has set in, with the future of thousands of businesses hanging in the balance. Big and small businesses alike are finding it difficult to cope with the downturn. The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) provisions related to small business loans provide a…
PREP Act Update: All NIOSH-Approved Respirators Now Are Covered Countermeasures Eligible for Immunity
All respirators approved by the National Institute of Occupational Safety and Health (“NIOSH”) now are “covered countermeasures” under the Public Readiness and Emergency Preparedness (“PREP”) Act provisions of the Public Health Service Act, and their manufacturers and distributors are eligible for immunity from suits for injury and death resulting from use of the masks in…
COVID-19 Changes Contracting at the VA
The novel coronavirus (“COVID-19”) pandemic has given Department of Veterans Affairs (“VA”) contractors several powerful new tools in their toolbelts, and VA contractors should not leave available protections on the table. VA contractors, including those supplying medical devices under the MSPV-NG bridge contract and pharmaceuticals on a VA Federal Supply Schedule (“FSS”), now can negotiate…
FCPA Landmines Beneath the Surface of the COVID-19 Crisis
COVID-19 took the world by surprise and continues to spread across the globe in more than 210 countries and counting. The outbreak in the United States escalated rapidly, with over 585,000 confirmed cases as of April 14, 2020. The federal government and a number of hard-hit states were caught off guard, and soon learned that…
Seize The Day (and the PPE) – An Overview of State and Local Rules Governing the Possession and/or Sale of Personal Protective Equipment (“PPE”) During the COVID-19 Public Health Emergency
As the Federal Government struggles to secure a sufficient volume of Personal Protective Equipment (“PPE”) – i.e., gloves, masks, gowns, face shields, etc. – for the nation’s health care workers and first responders, states and localities have begun taking it upon themselves to identify and protect the resources available within their geographic boundaries. These efforts…
DoD Issues Class Deviation to Address Contractor Reimbursement for Paid Leave Required to Maintain a Mission-Ready Workforce During the COVID-19 Outbreak Pursuant to Section 3610 of the CARES Act
To further assist the contractor community with the effects of the unprecedented Coronavirus Disease 2019 (COVID-19), the U.S. Department of Defense (DoD) issued on April 8, 2020 a Class Deviation authorizing contracting officers to use a new clause – DFARS 231.205-79, CARES Act Section 3610 Implementation – to address contractor reimbursement under Section 3610 of…
Presidential Executive Orders Delegate Additional Authorities To Respond To COVID-19 Outbreak
Last week the White House issued two additional Executive Orders (“EOs”) related to EO 13909, the subject of our March 20, 2020 blog post: Presidential Executive Order Calls on HHS to Issue Priority Contracts and Allocate Scarce Medical Resources.
EO 13910, Preventing Hoarding of Health and Medical Resources to Respond to the Spread of…
Gifting Goods & Services to the U.S. Government in the Wake of the Coronavirus Outbreak
COVID-19 (a.k.a. the Coronavirus) is upon us and it looks like it is here to stay, at least for the foreseeable future. In January, the Department of Health and Human Services declared the Coronavirus outbreak to constitute a Public Health Emergency, and on March 13, 2020, President Trump declared it a National Emergency. The President…
Families First Coronavirus Response Act: Face Mask Manufacturers and Distributors Protected from Liability for Coronavirus Deaths
On March 18, 2020, the President signed into law the Families First Coronavirus Response Act, H.R. 6201, Pub. L. No. 116-127 (the “Coronavirus Response Act”). Among other measures in response to the current pandemic, this legislation offers manufacturers and distributors of industrial-grade face masks, referred to as “personal respiratory protective devices,” immunity from liability…
Fed’s Vice Chair for Supervision Proposes a Deregulatory Approach to Limit the Scope of “Matters Requiring Attention” used in Bank Examinations
By Bochan Kim & Sarah Aberg
A January proposal to give banks compliance slack floated by a high-ranking Federal Reserve Board (“FRB”) official has not yet gained the traction its supporters had hoped for.
In remarks before the American Bar Association Banking Law Committee on January 17, 2020, the FRB Vice Chair for Supervision, Randal Quarles, proposed limiting the Federal Reserve’s…