Justin A. Chiarodo and Stephanie M. Harden
Does the mere existence of a deadly epidemic entitle a contractor to monetary relief when it experiences cost increases stemming from that epidemic? Not without Government direction, ruled the Federal Circuit in affirming a decision of the Civilian Board of Contract Appeals (“CBCA”) in Pernix Serka JV.
The facts of Pernix Serka are striking: a contractor repeatedly requests guidance for dealing with a major health crisis, the Government refuses to provide guidance, and the contractor is unable to recoup the additional costs it incurs in order to proceed with performance because the Government provided no guidance.
This timely ruling sheds light on strategies contractors should consider for recouping costs stemming from the COVID-19 pandemic. We provide a roadmap below for navigating these issues in light of Pernix Serka JV.
The 2014 Ebola Crisis
Pernix Serka was in the midst of performing a contract in Sierra Leone when a deadly Ebola outbreak struck the country in 2014. Pernix Serka diligently sought guidance from the Contracting Officer on its State Department (“DOS”) contract, but the Government refused to weigh in on whether it should temporarily shut down its work on the contract. Ultimately, Pernix Serka decided to temporarily withdraw its personnel, which the Government then characterized as Pernix Serka’s “unilateral” decision. When Pernix Serka sought advice on whether and when to resume work, the Government went so far as to say that “DOS will not provide any instructions or directions” regarding whether and when to return to the work site. The contractor ultimately decided to resume performance, but incurred additional costs when it decided to contract for medical facilities and services on the project site.
Continue reading “Tips to Maximize Contractor Recoveries for Public Health-Related Claims: Lessons from Pernix Serka and the Ebola Crisis”
By Merle M. DeLancey Jr., Craig Stetson*, and Jennifer A. Short
In our previous blogs, we discussed the multiple government enforcers and regulators charged with authority to oversee the application, eligibility, and use of COVID relief funds. Here, we address how to know whether you or your company is under investigation or review or being considered for same. Sometimes it is obvious—for example, when the Federal Bureau of Investigation (“FBI”) along with other agencies raid your offices. Other times, the signs are subtle.
The federal government has an arsenal of tools it uses to gather information for investigations and audits. These tools are not new and are not specific to COVID relief funds. However, some of the “new” entities created by COVID relief legislation (e.g., the Special Inspector General for Pandemic Recovery (“SIGPR”)), as well as the coordination of agency inspectors general on the Pandemic Response Accountability Committee (“PRAC”)), can use those same old tools to hone in on recipients of COVID-related funding.
Below are some practical tips to understand whether you are being investigated based upon investigative tools used by the government.
Continue reading “How to Know the Government Is Investigating You or Your Company in Connection with COVID Relief Funds”
Merle M. DeLancey Jr., Craig Stetson*, and Jennifer A. Short
In our last post on this topic, we touched on how the acceptance, use, and forgiveness of Paycheck Protection Program (“PPP”) loans can be viewed in the context of a Defense Contract Audit Agency (“DCAA”) audit. This post focuses on audits and investigations involving PPP loans. Close scrutiny of PPP loans is not a prediction; it is reality. The Small Business Administration (“SBA”) has announced it will audit all PPP loans in excess of two million dollars following a lender’s submission of a borrower’s loan forgiveness application, and it reserves the right to “spot check” any PPP loan of a lesser amount at its discretion. The Department of Justice has already charged multiple individuals with PPP fraud. And this is just the beginning of what many think will be a tidal wave of enforcement activity involving PPP loans.
Overview of the PPP
The PPP is the largest relief measure for small businesses under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The government has made available nearly one trillion dollars in PPP relief funds through four separate funding measures ($349 billion via the CARES Act; $310 billion via the PPP and Health Care Enhancement Act; $284 billion via the Consolidated Appropriations Act of 2021; and $7.25 billion via American Rescue Plan Act of 2021).
The PPP makes available guaranteed SBA loans to small business that meet certain eligibility requirements. In addition, PPP loans can be forgiven fully if used properly to cover specified business expenses such as payroll, rent, utilities, mortgage interest, and other limited uses. As of April 11, 2021, the SBA had approved more than 9.5 million loans totaling more than $755 billion using more than 5,400 lenders.
Continue reading “Paycheck Protection Program Audits Are Upon Us—Borrowers Prepare!”
Merle M. DeLancey Jr. and Craig Stetson*
This is the third in a series of posts regarding what we believe will be an onslaught of government investigations and audits of COVID relief funds and contracting. Previously, we identified likely categories of programs, contracts, and companies the government might investigate or audit. Below, we discuss the Defense Contract Audit Agency’s (“DCAA”) current direction, interests, and initiatives related to contractors’ receipt of COVID relief funds and the impact an uncertain business environment may have on government contract pricing and costing forecasts.
COVID Relief Funds
The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) funding opportunities come with unique government contract compliance requirements and financial reporting obligations. The funding is not “free” and may result in financial consequences to unwary contractors. DCAA knows this and will be conducting audits to test contractors’ compliance with unique relief fund requirements. Contractors unaware of these accounting and reporting requirements risk DCAA questioning or denying costs.
In January 2021, DCAA issued an audit alert to its regional offices pertaining to COVID relief legislation and regulation. The audit alert includes frequently asked questions and answers (“FAQs”) concerning contractors’ request or receipt of COVID relief funding. Originally released last summer, the FAQs have been revised and expanded several times. The FAQs telegraph DCAA’s position on various instances where COVID relief funding intersects with or impacts government contract cost accounting and compliance.
Continue reading “COVID-Related Audits and the DCAA’s New Audit Direction”
Dean S. Nordlinger*
Recently, I hosted the second session of Blank Rome’s new on-demand webinar series, “Strategically Speaking,” with featured guests Gilbert Dussek of Gunnison Consulting Group and Kevin Robbins of Blue Delta Capital Partners about the key issues that growing government contracts firms face in their business life cycle as they transform from small to “other-than-small” businesses. You are invited to watch the recording on demand here; I hope you find it helpful and informative.
Dussek has been a successful high-level operator on both large and small govcon platforms and in 2019 became CEO of Gunnison, a leader in software development, data analytics, and enterprise system testing for leading government customers. Robbins has served multiple roles as a consultant to and an owner/investor in govcon companies and is a co-founder of Blue Delta, a growth capital firm focused on the U.S. federal government services marketplace, particularly technology-enabled solutions and services companies.
Our session includes an informative and helpful discussion focused on:
- Reviewing Blue Delta’s and Gunnison’s decision to team up:
- Factors that went into Blue Delta’s decision to invest in Gunnison; and
- The driving and differentiating attributes that Blue Delta looks for in “investable” target companies
- Strategically growing from an SBSA to full & open govcon company:
- Building, scouting, and acquiring talent; and
- Competitively bidding on and winning, or acquiring, F&O contracts
- Identifying and filtering acquisition targets and structuring acquisitions:
- The roles of company culture, chemistry (of personnel), and vision; and
- Sourcing and valuing target companies
- Describing Gunnison-Blue Delta’s corporate growth strategy:
- How Blue Delta thinks about portfolio company construction; and
- Gunnison’s near-term and long-term visions and plans
*Dean Nordlinger is a partner in our Corporate practice whose new “Strategically Speaking” webinar series includes discussions with a variety of seasoned professionals and subject matter experts about critical and challenging issues that government contractors and other companies (and business owners) face throughout their life cycle.
Merle M. DeLancey Jr. and Craig Stetson*
This is the second in a series of posts regarding what we believe will be an onslaught of government investigations and audits of COVID relief funds and contracting. Previously, we identified the government offices that will be conducting the investigations and performing the audits. Below, we identify three categories of programs, contracts, and companies we believe are more likely to be investigated or audited.
The first group of companies ripe for audits are those accepting COVID relief funding and contractors performing large COVID-specific contracts, as well as contractors performing traditional government contracts that entail certain COVID-related twists impacting performance.
Companies accepting COVID relief funds are likely at the top of auditors’ lists for several reasons. First, because of the magnitude of funds at issue. Second, due to the complex and ambiguous eligibility, use, and reporting requirements. For example, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) and supplemental legislation appropriated funds to reimburse eligible healthcare providers for healthcare-related expenses or lost revenues attributable to COVID. Receipt of funds was easy. Most recipients’ funds were automatically deposited into their bank accounts. But healthcare provider recipients have not yet been required to file reports attesting to the proper utilization of the relief funds. Relief funds recipients in other non-healthcare industries may also be affected. Certain monies received under the CARES Act also involve ongoing and downstream reporting requirements by companies regarding statutory limitations on compensation paid to certain employees and the receipt of a variety of potential tax credits. Thus, recipients’ use of funds has not been tested, and it is unlikely that all usage has been in compliance with the ambiguous requirements and multiple rounds of agency guidance and interpretations.
Continue reading “The Likely Targets of COVID-Related Audits and Investigations”
Albert B. Krachman and Brooke T. Iley
Do not be surprised if, before the end of 2021, the federal government begins requiring contractors to certify or represent that their employees have received COVID vaccinations. The federal government has long conditioned contract awards on contractor compliance with emerging social policy mandates. This practice dates backs to the 1960s, when collateral social policy clauses began appearing in federal contracts. The National Emergency created by COVID-19 would appear ripe for a similar federal government action in federal contracting.
Several factors are converging in the United States which signal the potential for a COVID vaccine Certification or Representation. First, the supply issue should be mostly resolved by June 30, 2021. The Biden administration has committed to make enough vaccines available for every adult in the country by the end of May 2021. Second, the administration has been extremely active in making procurement law changes to conform to its policy objectives. Crafting an Executive Order on COVID Vaccines for federal contractor employees is clearly within the administration’s wheelhouse and target zone. Third, as reported in the March 8, 2021, Wall Street Journal, the largest employers in the country, across all sectors, are already engaged in large scale efforts to vaccinate their own employees. Fourth, while the law in this area is still evolving, the prevailing view is that, with certain exceptions, private employers are legally permitted to mandate their employees receive COVID vaccinations as a condition of continuing employment, subject to a variety of considerations related to employee legal, medical, and workplace accommodations. Finally, the federal government might find a federal contractor vaccine mandate a helpful leverage point in the evolving conflict with those states choosing to disregard COVID protections.
Continue reading “Will Federal Contractors Be Required to Certify Employee COVID Vaccinations?”
Merle M. DeLancey Jr. and Craig Stetson*
This is the first in a series of blog posts concerning the audits and investigations related to the contracts and grants awarded, and relief funds provided, in response to the COVID-19 pandemic. As of February 2021, pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which created the Paycheck Protection Program (“PPP”) and supplemental funding such as the Families First Coronavirus Response Act, the United States government has made available an estimated four trillion dollars in relief funds to businesses and individuals, and the Biden administration is proposing roughly two trillion dollars more.
In addition to the relief funds, the Government has easily awarded more than billions in pandemic-related contracts for everything from vaccines to PPE to hand sanitizers. These levels of funding and spending are unprecedented and have been made at breakneck speed (for the government). Based on these factors and lessons from the past, audits of relief recipients and contractors to confirm appropriate use of government funds are inevitable. And the government has said as much. Of course, if an audit reveals potential wrongdoing or malfeasance, relief recipients and contractors should expect follow-on investigations and enforcement activity.
This first post identifies the myriad of entities that are or will be reviewing—and potentially investigating—relief recipient and contractor representations made to obtain, and subsequent use of, government funds.
Continue reading “COVID Audits and Investigations: The Enforcers”
Jay P. Lessler, John M. Clerici, and Merle M. DeLancey Jr.
President-elect Biden plans to nominate California Attorney General Xavier Becerra to serve as Secretary of the U.S. Department of Health and Human Services (“DHHS”). The current Administration has frustrated the pharmaceutical industry with numerous Executive Orders and proposed rules and regulations trying to impact drug pricing. DHHS’s interim final rule implementing a Most Favored Nations Model (i.e., an international pricing index) for reimbursement of certain Medicare Part B drugs is the most recent example.
Numerous pundits suggested that pharmaceutical companies manufacturing vaccines and other drugs to respond to the COVID-19 pandemic waited until after the November election to announce their progress. The rationale was that the companies would prefer working with a Biden Administration rather than suffer through four more years of acrimony with the Trump Administration. The Becerra announcement, however, could indicate the pharmaceutical industry is not yet out of the woods. Continue reading “What Could a DHHS Secretary Becerra Mean for the Pharmaceutical Industry?”
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.