What Qualifies as a “False” Claim? Supreme Court May Clarify

Luke W. Meier and Carolyn R. Cody-Jones

Until recently, it was well-accepted that a violation of the False Claims Act (“FCA”) occurs only when there is a misrepresentation that is objectively false. Four circuits—the Fourth, Seventh, Tenth and Eleventh—had adopted this “objective falsity” standard. In March 2020, however, the Third and Ninth Circuits issued decisions departing from this view, holding that objective falsity is not required and “legal falsity” can suffice. These decisions created a stark circuit split with profound implications for government contractors, and there is now a pending petition to the Supreme Court to address and clarify the matter.

First, a refresher: The FCA does not define “false or fraudulent,” leaving courts to look to common law to interpret what constitutes a “false” claim. Many circuits had found that a representation must be objectively false to qualify as a false claim, meaning that a false claim cannot arise where there is a genuine dispute and a claim is alleged to be false based on a subjective assessment. The Third Circuit was among those endorsing this view, holding that under the FCA “a statement is ‘false’ when it is objectively untrue,” United States ex rel. Thomas v. Siemens AG, 593 F. App’x 139, 143 (3d Cir. 2014), and that “expressions of opinion, scientific judgments or statements as to conclusions which reasonable minds may differ cannot be false.” United States ex rel. Hill v. Univ. of Med. & Dentistry of N.J., 448 F. App’x 314, 316 (3d Cir. 2011). Continue reading “What Qualifies as a “False” Claim? Supreme Court May Clarify”

Where Are We Going with Section 889 Part B?

Justin A. Chiarodo, Merle M. DeLancey, Jr., and Robyn N. Burrows







About two months have passed since the August 13, 2020, effective date of Part B of Section 889 of the FY 2019 National Defense Authorization Act. Part B, sometimes referred to as the Chinese telecommunications equipment ban, broadly prohibits the federal government from contracting with entities that use certain Chinese telecommunications (including video surveillance) equipment and services.

After the FAR Council published its July 10, 2020, Interim Rule, contractors, large and small, spent countless hours working to be able to certify compliance by August 13. This deadline was critical because the Interim Rule said that absent such a certification, a contractor was ineligible for future contract awards. That is, government agencies were prohibited from renewing or extending existing contracts with contractors unable to certify Part B compliance. Indeed, agencies were prohibited from issuing an order under an existing contract to a contractor that failed to certify compliance.

Yet, despite the Rule’s laudable policy goals, the government’s piecemeal and inconsistent implementation has placed government contractors in an untenable position. Continue reading “Where Are We Going with Section 889 Part B?”

Blank Rome’s Justin Chiarodo Named Government Contracts MVP by Law360

We are pleased to announce that Partner Justin A. Chiarodo, who serves as co-chair of Blank Rome’s nationally recognized Government Contracts practice group, has been named a Law360 MVP for 2020.

The notable MVP awards recognize attorneys who have “distinguished themselves from their peers by securing hard-earned successes in high-stakes litigation, complex global matters, and record-breaking deals.” Justin joins a select group of only six attorneys nationwide recognized in the Government Contracts category.

The 2020 Class of MVPs includes 189 attorneys from 76 firms spanning 38 practice areas. Competition for the MVP distinction was especially strong this year with Law360 editors reviewing more than 900 submissions to determine the winners. Profiles of the winners will be promoted over the course of the following weeks on Law360. An excerpt of Justin’s MVP profile is shared below.

Click here to view Justin’s full profile.

ASBCA Broadens Scope of Acceptable CDA Certification Signatures

Michael J. Slattery

In 1901, in rural County Galway, Ireland, my Irish-speaking great-grandparents made their mark (“+”) on the decennial census taken that year. Whether they did so from a lack of literacy, or simply resented the census taker, I will never know. Whatever their reasons, my great-grandparents’ marks were accepted by the (then) British government because there was sufficient contextual evidence (i.e., an annotation by the census taker) to verify that my great-grandparents authored the marks and intended to be bound by them. This arrangement apparently worked for everyone involved, as it was repeated in 1911. Late last month, over 109 years later, the Armed Services Board of Contract Appeals (“ASBCA”), in Kamaludin Slyman CSC, ASBCA Nos. 62006, et al., Sept. 25, 2020, 2020 ASBCA LEXIS 213 at *1, adopted this approach when considering whether a contract claim was properly certified.

Contract Disputes Act Claim Certifications

The Contracting Disputes Act (“CDA”) requires contractors to certify government contracts claims of more than $100,000. This certification is required to be “executed by an individual authorized to bind the contractor with respect to the claim” and must state that:

    • the claim is made in good faith;
    • the supporting data are accurate and complete to the best of the contractor’s knowledge and belief;
    • the amount requested accurately reflects the contract adjustment for which the contractor believes the federal government is liable; and
    • the certifier is authorized to certify the claim on behalf of the contractor.

Continue reading “ASBCA Broadens Scope of Acceptable CDA Certification Signatures”

A Contractor’s Guide to Trump’s Diversity Training Order

Dominique L. Casimir, Brooke T. Iley, and Tjasse L. Fritz






An expanded version of our September 24, 2020, post, Trump Administration Bans Contractors from Providing Certain Types of Diversity Training, was published in Law360 on October 2, 2020. Read on for more information about the order and how contractors should respond.

Federal contractors have long provided various types of anti-harassment, nondiscrimination and diversity and inclusion, or D&I, training to their employees. After the death of George Floyd and the nationwide protests that followed, D&I training has proliferated in workplaces across the country, including within federal agencies and in the contractor community.

In response to the widespread public protests for racial equality, many companies and executives issued public statements denouncing racism. Many also pledged millions of dollars to social justice organizations. In numerous workplaces, employees have taken the initiative to organize book clubs and discussion circles focused specifically on promoting open workplace discussions about race. Some employers have provided lists of resources for employees seeking to learn more about issues of race.

On Sept. 22, the Trump administration issued a bombshell executive order purporting to ban certain types of D&I training,[1] leaving federal contractors scrambling to determine how best to comply, and how to identify and mitigate the new risks they now face.

Why now?

President Donald Trump has been vocal about his views on the discourse of racial issues following the nationwide protests for racial equality that started at the beginning of the summer.

In June, the president rejected calls to rename military bases honoring Confederate generals.[2] The Trump administration issued a memorandum on Sept. 4,[3] directing agencies to identify:

all contracts or other agency spending related to any training on critical race theory,[4] white privilege, or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil [and to] identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.

The executive order that followed three weeks later takes aim at contractor-provided workplace D&I training that the Trump administration considers divisive and objectionable.

Please click here for the full article.

New Department of Defense Regulations Clarify Contractors’ Responsibilities to Comply with NIST SP 800-171 and CMMC Requirements

Robyn N. Burrows and Michael J. Montalbano

On September 29, 2020, the Department of Defense (“DoD”) issued a long-awaited, interim rule to strengthen cybersecurity protections throughout the Defense Industrial Base. The new rule establishes how DoD will assess contractors under current cybersecurity regulations set out by the National Institute of Standards and Technology Special Publication 800-171 (“NIST Requirements”) and the newly established Cybersecurity Maturity Model Certification (“CMMC”) program. The interim rule goes into effect on November 30, 2020; although, as we have discussed in earlier posts, DoD will gradually roll out the CMMC over the next five years.

NIST Self-Assessment Requirements

The first part of the new rule applies to contracts that incorporate DFARS 252.204-7012, which requires contractors and subcontractors that have access to covered defense information to comply with the NIST Requirements. Under the new rule, these entities will need to conduct a “Basic” self-assessment of their compliance with the NIST Requirements, and submit the results of that assessment to DoD through the Supplier Performance Risk System (“SPRS”). Contractors will need to update this self-assessment every three years or sooner if required by a contract. Starting November 30, 2020, contractors will not be eligible for new contracts (including task orders and delivery orders) or for options on existing contracts, unless the self-assessment score is posted on SPRS. DoD expects that it will take 30 days from submission to have the self-assessment score posted on SPRS, so it is important for contractors to submit their assessment at least 30 days prior to the November 30, 2020 implementation date. Continue reading “New Department of Defense Regulations Clarify Contractors’ Responsibilities to Comply with NIST SP 800-171 and CMMC Requirements”

Proposed Rule Portends Increased Contractor BAA Obligations

Scott Arnold and Carolyn Cody-Jones

On September 14, 2020, the FAR Council published a proposed rule, Case 2019-016 “Maximizing Use of American-Made Goods, Products, and Materials,” 85 FR 56558, which proposes certain increased and new thresholds for contractors subject to the Buy American Act (“BAA”). The proposed changes implement Executive Order 13881 (July 15, 2019). There is a November 13, 2020, deadline for interested parties to submit written comments for consideration in the final rule.

The key proposed changes are as follows:

    1. Items subject to a minimum domestic component test would need to meet a new threshold of 55 percent, an increase of five percent from the current 50 percent threshold. Domestic end items and construction materials would need to be manufactured in the United States, and would need to be manufactured from components which, based on cost, are over 55 percent domestic (components mined, produced, or manufactured in the United States).
    2. A new, distinct threshold would be created for end items and construction materials that are made predominantly of iron or steel or a combination of both—meaning that the iron and steel content of the item exceeds half of the total cost of all components in the item. For such items, the domestic component content threshold would be 95 percent. In other words, for items made predominantly of iron or steel to be considered domestic, they would need to be manufactured in the United States and contain less than 5 percent non-domestic components by cost. This is a significant change; currently these items are subject to a much lower domestic content requirement—anything over 50 percent.
    3. The commercially available off-the-shelf (“COTS”) exception to the cost of component requirements would still apply to end items and construction materials that are not made predominantly of iron or steel. In other words, such COTS items would need to be mined, manufactured, or produced in the United States, but there would be no requirement that any portion of the components of such COTS items be domestic.
    4. The COTS exception to the cost of component requirements would not apply to end items and construction materials that are made predominantly of iron or steel. The rule set forth in (2) above would apply—to be considered domestic, such COTS items would need to be manufactured in the United States and contain less than five percent non-domestic components by cost.
    5. However, the rule set forth in (4) above would not apply to fasteners—hardware devices that mechanically join or affix two or more objects together—such as nuts, bolts, pins, rivets, nails, clips, and screws. Fasteners, even if made predominantly of iron or steel, would still fall within the COTS exception in (3) above, such that they only need to be manufactured in the United States. The source of components would not matter.
    6. Price evaluation adjustments made to bids for non-domestic items would increase from six percent to 20 percent (if bidder is not small) and from 12 percent to 30 percent (if bidder is a small business). For Department of Defense procurements, the existing 50 percent price evaluation adjustment applied to offers of non-domestic items would still apply.

Continue reading “Proposed Rule Portends Increased Contractor BAA Obligations”

Trump Administration Bans Contractors from Providing Certain Types of Diversity Training

Brooke T. Iley, Dominique L. Casimir, and Tjasse L. Fritz







On Tuesday evening, the Trump administration surprised the federal contracting community by issuing an Executive Order (“EO”) titled “Combating Race and Sex Stereotyping” that will ban federal contractors from conducting certain types of anti-discrimination training. In particular, the EO prohibits workplace racial sensitivity and diversity and inclusion (“D&I”) training programs that contain so-called “divisive content,” defined in the EO as instilling a belief in the existence of systemic racism and inherent bias. The EO expands an earlier ban issued in a September 4, 2020, memorandum that prohibits certain anti-discrimination training from being conducted within federal agencies.

The EO comes on the heels of a widespread social and racial justice movement that dominated much of the summer of 2020, in response to which corporate America has taken a stand, with companies pledging millions to social justice reform movements. An overwhelming number of employers either have offered or plan to offer some form of diversity training to their employees. This latest EO leaves many federal contractors and subcontractors wondering whether and how to proceed, and what penalties they may face if they offer such training. Continue reading “Trump Administration Bans Contractors from Providing Certain Types of Diversity Training”

An Early Holiday Present? CARES Act Section 3610 Extension through Dec. 11th Included in House Version of Continuing Resolution

Stephanie M. Harden

A top-of-mind issue for contractors right now is whether Section 3610 of the CARES Act will expire on September 30, as it is currently set to do. As discussed here and here, Section 3610 authorizes reimbursement of certain contractors who are unable to access their work sites and unable to telework during the pandemic—a critical stopgap designed to keep contractor workforces in a “ready state.”

On September 22, the House of Representatives passed a Continuing Resolution that would fund the government through December 11, 2020, and included in the Continuing Resolution an extension of Section 3610 through that same date. Whether the Senate will approve the Continuing Resolution remains to be seen, but we are cautiously optimistic that Section 3610 will be extended in light of the House’s support.

Of course, as we previously discussed here, there are other potential bases of recovery for contractors beyond Section 3610. However, each basis comes with its own set of limitations, and, thus, the sweeping relief provided through Section 3610 remains critically important. Section 3610, in turn, comes with its own limitations—including that there is no dedicated funding behind it, it is discretionary, it only provides relief for a subset of costs stemming from the pandemic, and, even if extended, it will remain a temporary measure.

We will continue to monitor this important topic and provide updates as they occur.

Administration Issues Executive Order Tying Medicare Drug Costs to International Prices

Merle M. DeLancey Jr.

On Sunday, while everyone was watching the return of NFL football, the Administration was busy fulfilling a promise it made in July to lower drug prices paid by the United States and Medicare beneficiaries by tying pricing to certain foreign countries.

In July, the Administration issued three Executive Orders concerning drug pricing and access to critical therapies. At that time, the Administration also announced that, unless the pharmaceutical industry proposed a plan that would decrease prices paid by Medicare Part B by August 24, the Administration would move forward with its own plan. Apparently, no agreement with the industry was reached because on Sunday the Administration announced its own plan.

In what is being called the “Most Favored Nations” Executive Order, the Administration is re-starting its efforts to reduce the prices the United States pays for drugs under Medicare Parts B and D. The Order uses the “most-favored-nation price” as the benchmark for prices to be paid by the United States. Most-favored-nation price is defined as the lowest price, after adjusting for volume and differences in national gross domestic product, for a pharmaceutical product that the drug manufacturer sells in a comparable member country of the Organisation for Economic Co-operation and Development (“OECD”).

Perhaps most surprising is the increased scope of the Order. The Order goes beyond what was proposed in July by seeking to link not only Medicare Part B drug prices but also Medicare Part D prices to lower prices paid by other countries. With respect to both Medicare Parts, the Department of Health and Human Services’ (“HHS”) “payment model” is to test whether poor clinical outcomes improve as a result of patients paying lower prices—no more than the most-favored-nation prices—for certain high-cost pharmaceuticals and biologics.

While the Order makes for a snappy sound bite, any potential benefits of lower drug prices will not be seen anytime soon. First, HHS will need to complete its rulemaking, which could have its own challenges. For example, in November 2018, HHS published an Advance Notice of Proposed Rulemaking (“ANPR”) proposing to implement an international reference pricing payment model for use by Medicare and Medicaid. Ultimately, nothing became of the ANPR. Even then, implementation of the contemplated programs is precarious. Industry opposition to the Order has been palpable and any HHS plan will likely face legal challenges that could substantially delay implementation.