Blank Rome LLP is pleased to announce that nine attorneys from the firm’s nationally recognized Government Contracts group have been appointed to leadership roles in the American Bar Association’s (“ABA”) Public Contract Law Section for the 2023–2024 term, marking the highest number of ABA Public Contract Law Section leadership positions held by our attorneys in the firm’s history.
Visit our website to learn more about their roles and the Section of Public Contract Law.
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Justin A. Chiarodo, Jennifer A. Short, Stephanie M. Harden, Samarth Barot, and Oliver E. Jury ●
2023 is shaping up to be a major year in False Claims Act (“FCA”) practice, with the Supreme Court weighing in on both FCA scienter (in SuperValu) and the reach of the government’s dismissal authority (in Polansky), and the government focusing its enforcement efforts around antitrust, cyber, and national security. We focus today on the United States ex rel. Schutte v. SuperValu, Inc. decision, in which the Supreme Court held that a contractor’s subjective belief about its compliance at the time it submitted claims for payment is relevant to whether it had the requisite scienter for FCA liability. Much has been written on this case, with most articles exploring esoteric concepts like “scienter,” “falsity,” and the “objectively reasonable person.” But assuming—as we do—that the decision will reduce the prospect of successful early dispositive motions, what practical steps can contractors take to reduce their False Claims Act exposure and avoid litigation in the first place? We offer three suggestions.
We begin with a basic refresher on the issue presented in SuperValu. A defendant is not liable under the False Claims Act unless it “knowingly” (including acting with “reckless disregard”) submits a false claim to the government. The “knowing” scienter element—particularly around reckless disregard—can be difficult to prove in the world of complex and often ambiguous laws and regulations that govern contractors’ compliance. The federal circuits had split on the issue of whether a defendant’s subjective interpretation at the time it submitted claims for payment to the government was relevant to determining FCA “knowledge” if the defendant could later show that the underlying rule was ambiguous and its conduct (regardless of its contemporaneous understanding or belief) was consistent with an objective, reasonable interpretation of the unsettled requirement. SuperValu resolved the debate by holding that whether a defendant knowingly violated the FCA—and satisfied the scienter element—must consider the defendant’s real-time “knowledge and subjective beliefs.” United States ex rel. Schutte v. SuperValu, Inc., 143 S. Ct. 1391 (2023).
Continue reading “3 Tips to Reduce False Claims Act Exposure in the Wake of United States ex rel. Schutte v. SuperValu, Inc.“Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Justin A. Chiarodo, Luke W. Meier, and Robyn N. Burrows ●
Building on recent and ongoing efforts to limit Chinese government access to government contractor supply chains, the FAR Councils published an interim rule effective June 2, 2023, that will broadly ban TikTok on contractor and contractor employee electronic devices used in the performance of federal contracts. The ban will be implemented through a new contract clause at FAR 52.204-27. Expect to see the clause added in all future solicitations (including commercially available off-the-shelf (“COTS”) acquisitions and micro-purchases) and added to existing contracts over the next month. We answer seven common questions on this new interim rule and offer several compliance tips.
What’s banned?
The new TikTok ban broadly prohibits contractors from having or using a “covered application” (e.g., TikTok or other successor applications by ByteDance Limited, a privately held company headquartered in Beijing, China) on any “information technology” used in the performance of a government contract. The ban applies regardless of whether the technology is owned by the government, the contractor, or the contractor’s employees. Bottom line, the rule has a (very) broad reach—it applies to contracts below the micro-purchase threshold, contracts for commercial products and services, and COTS items.
Continue reading “And No Longer Trending: 7 FAQs Regarding the Federal Contractor TikTok Ban”On the heels of Law360’s recognition of Blank Rome’s Government Contracts Practice as a 2022 Practice Group of the Year, the practice was recently highly ranked by two prestigious legal rankings publications:
Chambers USA 2023
We are thrilled to share that Blank Rome’s Government Contracts Practice was elevated to Band 2 in Government Contracts: The Elite, USA in the recent Chambers USA 2023 rankings, placing our team among the very top group of fewer than 50 law firms in the nationwide rankings.
Chambers quoted a reference as saying that Blank Rome has “…a good mix of associates and partners with expertise in a wide variety of areas. The firm is a one-stop shop for government contractors’ legal needs.”
To view all of Blank Rome’s Chambers USA 2023 rankings, please visit our website.
The Legal 500 United States 2023
Blank Rome was again highly ranked among top nationwide firms as a “Recommended Firm” in the area of “Government Contracts” in The Legal 500 United States 2023.
“While each member of the team has their own special talents and areas of specialization, as all great teams do, without fail, they unselfishly work together to achieve the client’s goal, in this case, zealously advocating on behalf of their client. From contract formation to interpretation to litigation, they handle the full spectrum and they do it as one, cohesive, disciplined, fighting unit.” ―Testimonial given to The 2023 Legal 500 United States
To view all of Blank Rome’s Legal 500 United States 2023 rankings, please visit our website.
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We’re pleased to share two recent accomplishments of our Government Contracts attorneys.
Blank Rome partner Elizabeth N. Jochum has been featured in Bloomberg Law’s “They’ve Got Next” series, which spotlights young lawyers who are “raising the bar in various practice groups.”
Elizabeth is one of five attorneys featured in the government contracts installment. The featured attorneys “work at the intersection of litigation, regulation, and government procurement” as they navigate and defend clients against bid protests.
Read more, including an excerpt of Elizabeth’s “They’ve Got Next” spotlight, as published in Bloomberg Law, on our website.
Blank Rome LLP is pleased to announce that partner Justin A. Chiarodo, who serves as chair of our firm’s Aerospace, Defense & Government Services industry team and Government Contracts practice group, has been named to Law360’s 2023 Aerospace & Defense Editorial Advisory Board.
Learn more about the board and Justin on our website.
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Justin A. Chiarodo and Anthony Rapa ●
We wrote earlier this year about the growing web of regulation and enforcement attention around export controls. In another key development in this area, the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) issued a memo to all of its export enforcement employees on April 18,2023, both reemphasizing the importance of corporate export control compliance, and clarifying its enforcement policies in two key areas. These two developments—one a stick and one a carrot—are designed to promote more (and more significant) disclosures to BIS with respect to violations of the Export Administration Regulations (“EAR”).
The first item in the memo addresses what happens when a company discovers, but does not report, a “significant possible violation” of the EAR. This marks a major policy change. Going forward, the deliberate non-disclosure of such “significant” possible violations of the EAR will be treated as an aggravating factor when BIS considers penalties. The memo explains that “significant” violations are those that “reflect potential national security harm” as compared to more technical violations. This policy emphasizes the BIS settlement guidelines that focus on the adequacy of a company’s export control program. BIS cautions companies that they face sharply increased risks if they do not make a voluntary disclosure after discovering a “significant” suspected violation.
Continue reading “Exporters Take Note: The Commerce Department Really, Really Wants You to Disclose Suspected Violations of the EAR—Both Yours, and Your Competitors’ Too”Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Law360, February 17, 2023
Blank Rome’s Government Contracts group was recently named a 2022 Practice Group of the Year by Law360, which honors “the attorney teams behind litigation wins and major deals that resonated throughout the legal industry this past year.” Blank Rome is one of five firms recognized in the Government Contracts practice group category nationwide.
Read the group’s full Practice Group of the Year profile, as published in Law360, on our website.
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Justin A. Chiarodo and Robyn N. Burrows ●
In honor of Black History Month, we wanted to highlight one of the most impactful traditions in our Washington, D.C., office: the Black History Month D.C. Easel Project, in which Blank Rome attorneys, staff, and clients work together to create easels depicting notable historic events and figures from D.C.’s rich African American history. Thanks to the leadership and innovation of our partner Saminaz Akhter, the Easel Project has deepened our awareness and appreciation of the significant contributions Black people have made in our Nation’s Capital (you can learn more about the program in this video).
The theme for last year’s easels was civil demonstrations and protests, including the 1919 Red Summer riot, the 1939 Marian Anderson concert at the Lincoln Memorial, the 1958/59 Youth March for Integrated Schools, the 2020 George Floyd protests, and the 1963 March on Washington for Jobs and Freedom. Our research on the origins of the 1963 March on Washington revealed a surprising connection to the defense industry that we wanted to spotlight for our “Sustained Action” readership.
The seeds for the March on Washington were sown decades earlier, when A. Phillip Randolph (head of the Brotherhood of Sleeping Car Porters and an early leader of the civil rights movement) proposed a mass march on Washington, D.C., to highlight segregation and discrimination in the U.S. Armed Forces and the defense industry.
Continue reading “Blank Rome’s Black History Month D.C. Easel Project—and a Surprising Connection between the Defense Industry and the 1963 March on Washington”Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Corporate Counsel, February 14, 2023
Anthony Rapa and Justin A. Chiarodo ●
Last year marked an inflection point in the geopolitics of the 21st century, with the Biden administration declaring the post-Cold War era “definitively over” against the backdrop of Russia’s invasion of Ukraine and the U.S.-China strategic competition. That dynamic drove a range of national security and economic statecraft policies in 2022—notably including broad sanctions against Russia and semiconductor export controls regarding China—that will create heightened legal and business risks for companies with international supply and distribution chains. These risks will be particularly acute for companies and investors operating in highly regulated industries, including aerospace, defense, manufacturing, technology, and financial services. We highlight below five key geopolitical and international trade issues to watch in 2023.
1. Trade war becomes tech war.
The U.S. strategic competition with China will continue in 2023 and beyond, with a continued focus on limiting the flow of advanced and emerging technologies. U.S. authorities are expected to build on key China-related measures implemented in 2022, which included sweeping semiconductor export controls, designations of Chinese companies on restricted lists, and FCC equipment bans.
Perhaps counterintuitively, total U.S.-China trade in 2022 reportedly was at or around an all-time high, and the Biden administration has stated that “[w]e do not seek conflict or a new Cold War.” U.S. Secretary of State Antony Blinken’s planned visit to China in 2023, postponed after the U.S. shot down a Chinese high-altitude balloon drifting through U.S. airspace, had been intended to build on dialogue between President Biden and Chinese president Xi Jinping on the sidelines of the G20 summit in Indonesia last November.
Key takeaway: Expect stronger enforcement measures to weigh on China trade for the foreseeable future. Companies should revisit the risk profile of their international supply chains—including whether any of their technology is subject to the new export controls or could be the subject of future controls—and consider enhancements in their supplier diligence and risk management practices.
Read more on our website.
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Justin A. Chiarodo, Dominique L. Casimir, and Krystal Studavent Ramsey ●
We are thrilled to kick off our new Government Contracts Navigator blog series, “Sustained Action: DEI in Government Contracting,” which shines a light on diversity, equity, and inclusion initiatives and progress in the government contracts industry and at Blank Rome. As we wrote back in 2020, working to promote diversity, equity, and inclusion is not a one-time exercise but a practice—one to which we are committed for the long run.
We approach this effort fully embracing that we bring our own backgrounds, journeys, and perspectives to a complicated area, and that fostering an environment of mutual respect and the free exchange of ideas is critical to promoting the understanding of different viewpoints and implementing solutions that make a difference.
“Sustained Action” is our next step in this journey. This post focuses on our recent participation in the American Bar Association Public Contract Law Section’s (“ABA PCL”) 10 Day Tune Up, and other initiatives we are driving at Blank Rome in 2023. The 10 Day Tune Up was a follow-up program to the successful 2020 program that we wrote about previously, the 21-Day Racial Equity Habit-Building Challenge© (“21-Day Challenge”).
Continue reading “Amplifying Our Clarion Call”