Category: Robyn N. Burrows

DOE OIG Cites Need for Data Analytics to Combat Fraud

Robyn N. Burrows ●

Last month, the Department of Energy (“DOE”) Office of Inspector General (“OIG”) issued a special report on the DOE’s use of data analytics to reduce the risk of fraud, waste, and abuse within DOE programs. As noted in our prior post (“More Cases and Expanded Data Analytics: A Closer Look at DOJ’s FY 2023 False Claims Act Statistics”), the Department of Justice has successfully used data analytics to identify and develop fraud cases, and the DOE OIG appears poised to adopt a similar approach—despite several implementation challenges.

Citing the significant influx of funds DOE has received through recent spending bills, the OIG report emphasized a need for the DOE to adopt data analytics and data-driven management to conduct oversight—moving away from a “pay and chase” model to a predicative, proactive approach to combatting fraud. However, the OIG found that DOE generally lacks the ability to perform comprehensive and timely analytics given that relevant data is maintained in a multitude of systems across the DOE complex. Without a coordinated approach for data standards, the OIG found that DOE’s ability to monitor contract costs and manage fraud risks is likely to be hampered.

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DOJ Looks to Incentivize Whistleblowers with New Pilot Program


Robyn N. Burrows ●

On March 7, 2024, Deputy Attorney General Lisa Monaco announced that the Department of Justice (“DOJ”) is designing and launching a pilot program to pay monetary rewards to whistleblowers who report significant corporate or financial misconduct. The pilot program, which will roll out later this year, is intended to encourage individuals to report misconduct and for companies to further invest in their internal compliance and reporting systems.

Several agencies have already established similar programs that reward whistleblowers financially, including the U.S. Securities & Exchange Commission (“SEC”) and the Commodities Futures Trading Commission (“CFTC”). Those programs, however, are limited in scope to each agency, resulting in what Monaco referred to as a “patchwork quilt” that does not address the full range of corporate and financial misconduct. The new pilot program is intended to fill these gaps.

Key Aspects of Pilot Program

Over the next 90 days, DOJ will be engaging in a “policy sprint” to gather information, consult with stakeholders, and design the pilot program. DOJ’s Money Laundering and Asset Recovery Section (“MLARS”) will lead the development and administration of the program.

The program’s core concepts will include the following:

  • Award Thresholds: DOJ expects to establish a monetary threshold to focus its resources on the most significant cases. Both the SEC and CFTC whistleblower programs limit rewards to cases in which the agency orders sanctions of one million dollars or more. DOJ may end up adopting a similar threshold.
  • Victim Compensation: Whistleblowers will only receive payment after all victims have been compensated.
  • “First in the Door”: Eligibility is limited to whistleblowers who provide truthful information not already known to the government. The information cannot be in response to any government inquiry, pre-existing reporting obligation, or imminent threat of disclosure. As Monaco emphasized, “you have to tell us something we didn’t already know.”
  • No Criminal Involvement: Whistleblowers cannot be involved in the criminal activity itself.
  • No Existing Incentive Programs: The program applies only in cases where there is no existing disclosure incentive, including qui tam provisions of the False Claims Act or another federal whistleblower program.

Enforcement Priorities

Although DOJ seeks information about any violation of federal law, Monaco clarified that the government is primarily interested in:

  • Criminal abuses of the U.S. financial system;
  • Foreign corruption cases outside the SEC’s jurisdiction; and
  • Domestic corruption cases, especially involving illegal corporate payments to government officials.

What to Expect from the Pilot Program?

Increase in voluntary disclosures

  • The new whistleblower program builds on DOJ’s prior efforts to strengthen corporate enforcement by encouraging voluntary disclosures. With the new pilot program offering monetary rewards to those “first in the door,” companies assessing whether to self-report potential misconduct must consider whether a whistleblower might get to DOJ first (thereby preventing the company from reaping the benefits of a voluntary disclosure). This may encourage companies to self-report misconduct earlier and more often. As Monaco stated, “[O]ur message to whistleblowers is clear: the Department of Justice wants to hear from you. And to those considering a voluntary self-disclosure, our message is equally clear: knock on our door before we knock on yours.”

More referrals to DOJ—and potentially fewer internal whistleblower reports

  • With the prospect of potentially significant financial rewards, we can expect more employees to report wrongdoing directly to DOJ, rather than going through corporate whistleblower channels. Companies should therefore ensure employees are aware of and have easy access to whistleblower hotlines to encourage internal reporting.

Focus on non-public companies

  • One of the “gaps” DOJ seeks to fill with the whistleblower program is to target foreign corruption cases outside the jurisdiction of the SEC, which already has its own whistleblower program. Thus, DOJ is likely to focus on suspected violations by non-public corporations.

We expect more information on program details and implementation over the coming months and will follow up with further updates.

Meet Our Newest Partner, Robyn Burrows


Justin A. Chiarodo, Dominique L. Casimir, and Robyn N. Burrows

In late 2023, we were very happy to announce that Blank Rome Government Contracts associate Robyn N. Burrows was elevated to partner in our Government Contracts practice in Washington, D.C., effective January 2024.

Robyn is a key member of our practice group who represents clients on a wide range of government contracts matters. She has experience preparing and negotiating complex claims and has litigated disputes before the boards of contract appeal and state and federal courts. Robyn has a particular focus on emerging supply chain and cybersecurity issues and has counseled numerous clients on Section 889 compliance. She also provides counseling on cost/pricing issues, domestic preferences, protection of contractor data and intellectual property, and suspension and debarment matters. She has experience navigating clients through False Claims Act investigations and regularly assists clients in high-value bid protests before the Government Accountability Office and U.S. Court of Federal Claims.

Robyn has also developed particular experience with Department of Energy (“DOE”) contracts, and has handled matters involving whistleblower complaints, civil investigative demands, subcontractor disputes, cost-allowability issues, and other unique DOE requirements applying to management and operating (“M&O”) contractors.

Robyn is a member of the Public Contract Law Section of the American Bar Association, where she is Vice-Chair – Contract Claims & Disputes Committee, Vice-Chair – Cybersecurity, Privacy and Emerging Technology Committee, and has served as the Associate Editor for the section’s quarterly journal, The Procurement Lawyer, since 2021. Robyn also serves on the Washington, D.C. Bar Government Contracts Steering Committee.

Before joining Blank Rome, Robyn represented construction clients in federal contracting matters. During law school, she was a research editor for the George Mason Law Review. She interned with the Honorable R. Terrence Ney of the Fairfax County Circuit Court, and with the administrative judges at the Office of Hearings and Appeals of the U.S. Department of Housing and Urban Development.

We took some time to chat with Robyn to see how she is settling into her new position, and to learn more about her, including what she enjoys doing outside of work!

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Starting December 4th, Contractors Must Rid Supply Chains of Covered Articles and Sources Subject to FASC Orders

Robyn N. Burrows ●

Effective December 4, 2023, a new interim rule will prohibit contractors from delivering or using covered articles and sources subject to exclusion or removal orders issued under the Federal Acquisition Supply Chain Security Act of 2018 (“FASCSA”). The rule is intended to eliminate certain technology from the federal supply chain that foreign adversaries might exploit to commit malicious cyber acts. The interim rule allows the executive branch through the Federal Acquisition Security Council (“FASC”) to exclude certain technologies and manufacturers from federal procurements and even to require removal of covered articles from federal or contractor information systems during performance.

The rule imposes a host of new obligations, including certification, monitoring, and reporting requirements. This post provides practical guidance on the rule and several compliance tips to help contractors prepare for the December deadline.

Background

Congress passed Section 202 of the FASCSA to protect the information and communications technology (“ICT”) supply chain against threats and vulnerabilities that may lead to data and intellectual property theft, damage to critical infrastructure, or national security harm. The Act established the FASC as an interagency council authorized to make recommendations for orders that would require the removal of covered articles from agency information systems (removal orders) or the exclusion of sources or covered articles from agency procurement actions (exclusion orders) (collectively referred to as “FASCSA orders”).

In August 2021, the FASC issued a final rule establishing procedures for recommending removal and exclusion orders. The FASC evaluates supply chain risk based on several non-exclusive factors and sends its recommendations to the Secretaries of Homeland Security and Defense and the Director of National Intelligence to consider when deciding whether to issue a FASCSA order. If a FASCSA order is issued, agencies are required to implement the exclusion or removal order.

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Blank Rome Attorneys Appointed to American Bar Association’s Public Contract Law Section Leadership for the 2023–2024 Term

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.

And No Longer Trending: 7 FAQs Regarding the Federal Contractor TikTok Ban

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.

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Blank Rome’s Black History Month D.C. Easel Project—and a Surprising Connection between the Defense Industry and the 1963 March on Washington

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.

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FY 2023 NDAA Muddies the Water on Whether Chinese Semiconductor Ban Will Apply to Contractors

Robyn N. Burrows ●

Last month, we wrote about a proposed amendment to the FY 2023 National Defense Authorization Act (“NDAA”) that would prohibit contractors from selling certain Chinese semiconductor technologies to federal agencies and from using these same covered products and services. This measure was added through Section 5949 of the NDAA.

On December 6, the House passed a compromise version of the NDAA, which appears to scale back the semiconductor ban by applying it only to federal sales of covered products and services, without also banning contractors from using them. However, the explanatory statement accompanying the NDAA suggests contractors (including their affiliates and subsidiaries) may ultimately be prohibited from using covered semiconductor technologies—which would raise a host of compliance and implementation concerns.

Compromise Version of NDAA Limits Semiconductor Ban to Federal Sales

Section 5949 bans semiconductor products and services from Semiconductor Manufacturing International Corporation, ChangXin Memory Technologies, and Yangtze Memory Technologies Corp., plus their subsidiaries and affiliates. This ban was modeled after the supply chain restrictions from Section 889, which prohibit contractors from selling and using covered telecommunications and video surveillance equipment from five Chinese telecom companies.

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Blank Rome Successfully Represents KPMG LLP in GAO Bid Protest Challenging U.S. Air Force Award Decision

Samarth Barot headshot image

A Blank Rome team represented KPMG LLP in a successful bid protest before the Government Accountability Office (“GAO”), in which KPMG challenged the award decision of the United States Air Force in a procurement for visible accessible understandable linked trusted (“VAULT”) subject matter expert support.  

The team was led by Dominique L. Casimir and included Robyn N. Burrows and Samarth Barot. 

To learn more, please visit our website.

Senate Majority Leader Schumer Proposes Section 889 Expansion

Robyn N. Burrows and Merle M. DeLancey, Jr. ●

On October 18, 2022, Senate Majority Leader Chuck Schumer (D-NY) issued a press release signaling a potentially significant expansion of Section 889 through a proposed amendment to the 2023 National Defense Authorization Act (“NDAA”). Schumer’s proposal is aimed at extending the telecommunications supply chain prohibitions in Section 889 to the semiconductor manufacturing industry.

Section 889 currently prohibits contractors from providing the federal government or using any products or services that incorporate “covered telecommunications equipment or services” from five Chinese telecom companies and their affiliates and subsidiaries: (1) Huawei Technologies Company, (2) ZTE Corporation, (3) Hytera Communications Corporation, (4) Hangzhou Hikvision Digital Technology Company, and (5) Dahua Technology Company.

Schumer’s 2023 NDAA amendment would expand Section 889 by banning semiconductor products like microchips from the following three Chinese entities: (1) Semiconductor Manufacturing International Corporation (“SMIC”), (2) ChangXin Memory Technologies (“CXMT”), and (3) Yangtze Memory Technologies Corp. (“YMTC”). Schumer noted that these companies have known links to the Chinese state security and intelligence apparatuses. The amendment is aimed at filling a gap in federal procurement restrictions that currently do not include semiconductor technology and services, creating a vulnerability for cyberattacks and data privacy. The amendment would not take effect until three years after the NDAA’s enactment, or until 2025.

Although we do not yet know whether Schumer’s amendment will be incorporated into the final NDAA bill, contractors should nevertheless begin evaluating their supply chains to identify any semiconductor products from any of the three named Chinese manufacturers. Schumer’s amendment signals a continually expansive interpretation and enforcement of Section 889, which may be reflected in the final rulemaking for Section 889. The current FAR docket anticipates a final rule in December 2022, although these deadlines continue to be moving targets.