Category Archives: Advice to Contractors & Grant Recipients

Jeff Belkin Quoted by Law360 on Leaked DOJ FCA Memo

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On January 25, 2018, Jeff Belkin was quoted by Law360 in the article “FCA Memo No Proof of New DOJ Direction on Dismissals,” which covers a recently leaked memo from the U.S. Department of Justice (DOJ) detailing when DOJ attorneys should ask to dismiss “meritless” qui tam False Claims Act cases. The article covers varying viewpoints about what the impact of the memo will be on future FCA cases. Many FCA defense attorneys have reacted positively, some saying that the memo does suggest a change in policy. Others have reservations and remain unconvinced of actual policy changes. In the article, [...]Read more

Chris Roux and John Hanover Published in The Construction Lawyer on Implied False Certification Liability

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Alston & Bird partners Chris Roux and John Hanover had their article, “Implied False Certification Liability Under the False Claims Act: How the Materiality Standard Offers Protection after Escobar,” published in the Winter 2018 edition of The Construction Lawyer. The article takes an in-depth look at the viability of implied false certification claims under the False Claims Act by examining their use before and after the U.S. Supreme Court’s Escobar decision, the key elements of the decision, and how varying interpretations of the decision apply to the construction industry. Readers [...]Read more

Fifth Circuit Ruling Shows Government’s Actions Are Key Under Escobar

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Government contractors continue to closely follow the impact of the U.S. Supreme Court’s landmark False Claims Act decision in Universal Health v. U.S. ex rel Escobar. Most recently, in U.S. ex rel Harman v. Trinity Industries, the Fifth Circuit considered the heightened standard whistleblowers must meet under Escobar to prove materiality if the government continued to pay claims despite its knowledge of misconduct allegations. In Trinity Industries, Trinity, a manufacturing company and government contractor, appealed the denial of its motion for judgment as a matter of law. The underlying [...]Read more

The Federal Government Procurement Process Could Go Digital

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In order to keep up with online marketplaces available at the “one touch” of a smartphone, the federal government is doing its part to bring its procurement process into the digital age. Legislation passed earlier this year by the House of Representatives would allow the U.S. military and civilian government agencies to buy products directly from new online marketplaces instead of following the current procurement process for purchases above the “micro-purchase” threshold (i.e., a few thousand dollars). The newly proposed process would present many opportunities for online retailers and [...]Read more

Davis-Bacon Act Repeal Efforts Renewed

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Republican members of Congress have renewed steps to repeal the Davis–Bacon Act, which sets the prevailing wage requirements for workers employed under federally funded or assisted contracts for the construction, alteration, or repair of public works. In January, Senator Jeff Flake (R-AZ) introduced the Transportation Investment Recalibration to Equality (TIRE) Act that would suspend the Davis–Bacon Act’s provision that workers on federal contracts be paid a prevailing wage for all federal highway construction projects. Additionally, Senator Mike Lee (R-UT) and Representative Steve King (R-IA) [...]Read more

The Trump Administration’s Move Toward Pro-Employer Policies

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On March 27, 2017, President Trump signed House Joint Resolution 37 under the Congressional Review Act, which in essence blocked the Fair Pay and Safe Workplaces Executive Order (the “Blacklisting Rule”) signed by President Obama. By signing this Resolution, the Blacklisting Rule and the Department of Labor guidance remain in place, but as a practical matter will not be enforced by the Trump Administration. This Resolution will have minimal impact on government contractors in the short term since the Eastern District of Texas already issued a preliminary injunction in 2016 enjoining the implementation [...]Read more

GAO Report on Government Contracting Finds Overall Decrease from 2011-2015 and Most Obligations on Service Contracts

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Every year, billions of dollars in products and services are needed to keep running the U.S. federal government’s 18 cabinet-level departments and nearly 100 other independent agencies. In March 2017, the Government Accountability Office (GAO) released results of its one-year audit of the government’s contracts between fiscal years 2011 and 2015 (including its fixed price, cost-reimbursement, and time-and-materials/labor hour contracts). Overall, GAO’s report shows a 24 percent decrease in government-wide contracting in FY 2015 from FY 2011 levels (a drop of approximately $438 billion), with [...]Read more

Alston & Bird Advisory: Highlights of the OIG’s 2017 Work Plan

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In coordination with Alston & Bird partners Dawnmarie Matlock and Wade Pearson Miller and other authors, Construction & Government Contracts associate Erica Harrison Arnold contributed to the Alston & Bird Health Care and Health Care Litigation advisory “New Initiatives for the New Year: Highlights of the OIG’s 2017 Work Plan.” The advisory focuses on new OIG HHS initiatives and projects in the 2017 Work Plan that companies in the health care industry should take special note of when planning their business strategies, risk assessments, internal audits and compliance efforts for [...]Read more

The Washington Post Quotes Jeff Belkin on Obama Order on Contractor Workplace Violations

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On August 31, Alston & Bird Construction & Government Contracts partner Jeff Belkin was quoted in the Washington Post article “Obama Order on Contractor Workplace Violations Takes Effect Soon, Despite Objections.” The article discusses some of the issues surrounding the Fair Pay and Safe Workplaces Executive Order that will compel potential government contractors to report violations covering 14 workplace protections from the previous three years. As indicated by Belkin, the new regulations could turn into a “blacklisting rule” that may shut out “many highly capable, ethical and [...]Read more

Corporate Counsel Quotes Clare Draper on Final “Blacklisting” Rule for Government Contractors

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On August 25, Alston & Bird Labor & Employment partner Clare Draper was quoted in the Corporate Counsel article “New ‘Blacklisting’ Rules for Contractors Add Compliance Burden for Companies.” The article explains what the Fair Pay and Safe Workplaces Executive Order, or so-called “blacklisting rule,” would do and examines some of the anticipated effects. Draper was quoted as saying the firm expects the regulations “to bring about complex compliance issues on a variety of levels to both large and small companies, leaving them increasingly vulnerable to risk.” To learn [...]Read more