What Contractors Should Know about DOJ’s Revised Guidance on Evaluations of Corporate Compliance

Brian S. Gocial and Stephanie M. Harden

As government contractors know well, a robust compliance program can be critical—both in preventing, detecting, and resolving compliance problems and in working with agencies and/or the Department of Justice (“DOJ”) to resolve compliance issues when they arise. Though DOJ has previously issued guidance on how it evaluates corporate compliance programs, on April 30, 2019, it greatly expanded upon its earlier guidance with a lengthy new guidance document. The document is notable for its emphasis not just on the design of compliance programs, but also on their effectiveness in practice. The document is a useful benchmark for contractors to evaluate their compliance programs, as well as to demonstrate their affirmative responsibility to agencies when facing agency-level investigations.

The guidance document focuses on three central questions:

  1. Is the corporation’s compliance program well designed?
  2. Is the corporation’s compliance program implemented effectively?
  3. Does the compliance program actually work in practice?

The following outline provides a summary of the various factors DOJ discusses in connection with each of these questions—and more information on each topic can be found here.

Contractors should assess how their own compliance programs measure up against these factors: Continue reading “What Contractors Should Know about DOJ’s Revised Guidance on Evaluations of Corporate Compliance”

Breaking Camp(ie): Supreme Court Sends Gilead FCA Case Back for Likely Dismissal, Postponing Escobar’s Return

Justin A. Chiarodo and Stephanie M. Harden

The Department of Justice’s (“DOJ”) bombshell statement last month that it would seek dismissal of the Gilead False Claims Act (“FCA”) suit—a qui tam suit alleging misrepresentations and concealments regarding active ingredient sources and quality for HIV medications—surprised many in the government contracts community. Though DOJ had signaled earlier last year in the so-called “Granston memo” that it may seek dismissal of certain FCA cases, the fact that DOJ sought to do so while a case was on appeal to the Supreme Court—and without consulting relators—was unexpected. Continue reading “Breaking Camp(ie): Supreme Court Sends Gilead FCA Case Back for Likely Dismissal, Postponing Escobar’s Return”

Disaster Relief Contracting: How to Avoid the Pitfalls

Justin A. Chiarodo and Stephanie M. Harden

Hurricane Harvey’s damage to Texas and other areas is virtually unprecedented and is already estimated to be in the tens of billions of dollars. And Hurricane Irma, hurtling towards Florida, could likewise cause catastrophic damage. Though every disaster presents unique recovery challenges, a common theme in disaster relief efforts is the key role of the Federal Emergency Management Administration (“FEMA”) and a federal law known as the Stafford Act. Contractors eager to assist with relief and rebuilding efforts should pay close attention to the legal landscape underpinning the public funding behind disaster relief efforts, particularly given the scrutiny these efforts will receive in the wake of Hurricane Katrina. Continue reading “Disaster Relief Contracting: How to Avoid the Pitfalls”

Deficient Administrative Record Leads Federal Court to Vacate 15-Year Debarment

Justin A. Chiarodo and Stephanie M. Harden

A recent federal court decision vacating a staggering 15-year debarment based on shortcomings in the administrative record offers a glimmer of hope to contractors facing exclusion from federal programs, and reinforces the importance that any final debarment decision be based on a fulsome record—particularly in “fact-based” debarments where there are disputed material facts. The big takeaway for contractors facing an exclusion is to ensure that the administrative record on which a debarment decision is based reflects all information showing why an exclusion is unwarranted (or unnecessary) to protect the Government.

Continue reading “Deficient Administrative Record Leads Federal Court to Vacate 15-Year Debarment”

How Is Your Domestic Preference Compliance? President Trump Signals More Scrutiny of “Buy American, Hire American” Practices

Justin A. Chiarodo and Stephanie M. Harden

President Trump signed an Executive Order yesterday, marking another step forward in his promotion of “Buy American” and “Hire American” policies. The Executive Order focuses on two areas: cracking down abuse of the H-1B guest worker program and promoting the purchase of American products in federal procurements. We tackle in this post the “Buy American” portion of the Executive Order, which is of particular importance to federal contractors. Continue reading “How Is Your Domestic Preference Compliance? President Trump Signals More Scrutiny of “Buy American, Hire American” Practices”

President Trump Rolls Back Obama-Era Fair Pay and Safe Workplaces Rule

Stephanie M. Harden and Alexander H. Berman

On Monday, March 27, President Trump exercised his authority under the Congressional Review Act (“CRA”) to nullify the Obama-era Fair Pay and Safe Workplaces Rule, which was promulgated pursuant to President Obama’s 2014 Executive Order 13673. The rollback, which has been much anticipated by the contracting community, is part of a push by the Trump administration and the 115th Congress to scale back a number of contracting regulations that were put into effect under the Obama administration (for more on this topic, see our prior post here).

President Trump’s March 27th signing of the resolution—which effectively removes the rule from the books—follows the passage of a joint disapproval of the rule by the House and Senate. Though the rule’s reporting requirements and arbitration prohibitions had already been blocked in October 2016 by a district judge in the Eastern District of Texas, the CRA resolution, now bearing a Presidential signature, fully nullifies the entire rule and all of its requirements on federal contractors—including its paycheck transparency provisions, which were previously left intact by the court in Texas. Indeed, pursuant to the CRA, a rule that is nullified using this process “shall be treated as though such rule had never taken effect.” 5 U.S.C. § 801(f). Continue reading “President Trump Rolls Back Obama-Era Fair Pay and Safe Workplaces Rule”

Five Things Government Contractors Should Keep in Mind about Political Activities this Election Season

Justin Chiarodo and Stephanie M. Harden 

ChiarodoJ+ZechmannSThe 2016 election season is unlike any other in recent memory. But like elections past and yet to come, political contributions and lobbying remain a mainstay of the political process. This is particularly true in the federal government contracting community, which is heavily influenced by executive and legislative action (and inaction). Though we can expect the unexpected in the three months leading up to the election, we offer below five fundamental “do’s and don’ts” that government contractors should keep in mind to guide their political activities. Continue reading “Five Things Government Contractors Should Keep in Mind about Political Activities this Election Season”