Robyn N. Burrows
The Supreme Court in Food Marketing Institute v. Argus Leader Media, No. 18-481 (U.S. June 24, 2019) recently relaxed the standard for withholding confidential information under Exemption 4 of the Freedom of Information Act (“FOIA”)—a major win for contractors that regularly submit sensitive business information to the government.
Exemption 4 protects from disclosure trade secrets and commercial or financial information that is privileged or confidential. For the past 45 years, courts have been guided by the stringent “competitive harm” test first enunciated in National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974). This test allowed an agency to withhold information as “confidential” only if disclosure would (1) impair the government’s ability to obtain necessary information in the future, or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. Many businesses objected to this test as overly burdensome and causing confusion about the showing required to establish substantial competitive harm. Continue reading “The Supreme Court Expands the Meaning of “Confidential” Information under FOIA Exemption 4”
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:
- Is the corporation’s compliance program well designed?
- Is the corporation’s compliance program implemented effectively?
- 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”
Merle M. DeLancey Jr.
If you’re like me, it’s the time of year when you clean out your garage and closets and do all those outside projects you delayed until the weather warmed up. If you are a government contractor, you should consider this to be the season to do some spring cleaning in terms of your government contract compliance programs and procedures. Not to be an alarmist, but there are numerous areas you can review now and, if you should find some compliance deficiencies, you still have ample time to get your house in order before an agency audit or the deadline for submission of certain government reports.
Set forth below is a list of areas you may want to clean up: Continue reading “Spring Cleaning for Government Contractors? Think Compliance.”
Merle M. DeLancey Jr.
On March 25, 2019, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a Corporate Scheduling Announcement List (“CSAL”) for FY 2019. As it announced in February, OFCCP changed how it notifies government prime contractors and subcontractors that they may be subject to a compliance review. Rather than sending the traditional advanced notification letters, OFCCP posted the FY 2019 CSAL on its website. In addition to the CSAL, OFCCP also posted its Scheduling Methodology, CSAL Frequently Asked Questions (“FAQs”), Corporate Management Compliance Evaluation (“CMCE”) FAQs, and a link to its Section 503 Focused Review page.
OFCCP significantly increased the number of contractors potentially subject to review to more than 3,500. OFCCP’s CSALs for FY 2018 and 2017 identified 1,003 and 802 contractors, respectively. Continue reading “OFCCP Releases FY 2019 CSAL”
Sara N. Gerber
According to a recent U.S. Government Accountability Office (“GAO”) report, the Defense Contract Audit Agency (“DCAA”) and the Defense Contract Management Agency (“DCMA”) have taken certain steps to improve the contractor business system (“CBS”) review process and are forecasting that CBS reviews will increase significantly over the next four years. Contractor business systems include a contractor’s accounting, earned value management, estimating, purchasing, material management, and property management systems. These systems require contractors to maintain internal controls that, as GAO noted, “act as the first line of defense against fraud, waste and abuse of federal funding.” Given their importance, the renewed focus on ensuring CBS reviews are conducted in a timely and consistent manner is not surprising, and contractors should prepare for a new wave of audit activity. Continue reading “Renewed Focus on Contractor Business System Reviews”
Merle M. DeLancey Jr.
While the introduction of state legislation that would require drug manufacturers to disclose pricing and other information did not slow down in 2018, the number of bills that were made law did slow down. During 2018, 22 state legislatures considered bills seeking to require drug manufacturers to disclose pricing information; however, most of the legislation failed.
Two New State Laws
Since my Drug Manufacturer Pricing Disclosures: Mid-Year 2018 Update, two states—Vermont and New Hampshire—passed laws that arguably touch on requiring pharmaceutical manufacturers to report drug prices. Continue reading “States Pass Fewer Drug Manufacturer Pricing Disclosure Laws in 2018”
Robyn N. Burrows
On February 13, the Office of Federal Contract Compliance Programs (“OFCCP”) issued Directive 2019-04 which establishes a framework for the Voluntary Enterprise-wide Review Program (“VERP”). Under this new program, OFCCP will work with “high-performing” contractors to achieve sustained, corporate-wide compliance with the laws and regulations OFCCP administers and enforces requiring nondiscrimination and equal employment opportunity. Notably, participating contractors are removed from the pool of contractors scheduled for compliance evaluations.
Eligibility for Participation
Contractors can apply to the program beginning in fiscal year 2020. As part of the application, OFCCP will conduct compliance reviews of the contractor’s headquarters location as well as a sample or subset of establishments. Contractors must meet established criteria verifying basic compliance with OFCCP’s requirements and must further demonstrate their commitment to and application of successful equal employment opportunity programs on a corporate-wide basis. Continue reading “OFCCP’s New Voluntary Program Exempts “High-Performing” Contractors from Compliance Evaluations”