Author Archives: Andrew Howard

Andrew Howard
Andy Howard is a litigation partner who represents clients across a wide range of industries, including construction, health care, aerospace, energy and technology. Andy’s practice involves representing construction industry professionals and federal, state and local government contractors.  Read More →

Food Marketing Institute v. Argus Leader Media: Enhanced FOIA Protection for Contractors’ “Confidential” Commercial or Financial Information

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For the last 55 years nearly all federal agencies and courts tasked with determining whether a contractor’s “commercial or financial” information is “confidential” for purposes of exemption from public disclosure under the Freedom of Information Act have had to evaluate – among other things – whether disclosure of the information likely would cause substantial harm to the competitive position of the person from whom the information was obtained. In Food Marketing Institute v. Argus Leader Media, 588 U.S. ___ (2019), the Supreme Court rejected this decades-long “competitive harm” [...]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

Supreme Court to Rule on the Implied Certification Theory

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The U.S. Supreme Court has scheduled oral arguments in a case that will have significant implications for cases brought under the False Claims Act (FCA). In Universal Health Services v. United States ex rel. Escobar, No. 15-7, the Court will hear argument on two important questions. First, whether the “implied certification” theory of legal falsity is viable under the FCA, a question on which the circuit courts of appeal are divided. If the Court concludes the implied certification theory is viable, then the second issue it will consider is whether government contractors’ reimbursement claims [...]Read more

Are More Constitutional Challenges to State DBE Contracting Programs On the Way?

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An Illinois construction company is petitioning the U.S. Supreme Court to decide whether it has standing to challenge as unconstitutional a state’s implementation of a disadvantaged business enterprise (DBE) participation goal in connection with a road project. If sustained, the company’s challenge would have far-reaching implications, including opening the door for other disappointed bidders to prosecute constitutional challenges to states’ implementation of mandatory disadvantaged business contracting programs. In 2009, the Illinois Department of Transportation (IDOT) sought bids for [...]Read more

A Summary of the Department of Justice’s 2015 False Claims Act Review

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The False Claims Act (FCA) again proved itself to be the government’s primary tool to combat procurement fraud. According to the Department of Justice, in 2015 alone, the government recovered more than $3.5 billion from FCA settlements and judgments for the fourth year in a row, bringing the total recovery since January 2009 to $26.4 billion. Of the $3.5 billion recovered last year, roughly $1.1 billion came from settlements and judgments in cases alleging false claims for payment under government contracts, raising the total recovery for government contracts and procurement fraud settlements [...]Read more

Proposed Rule Requires Prime Contractor to Report Late or Reduced Payments to Small Business Subcontractors

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On January 20, 2016, the Department of Defense, General Services Administration, and NASA issued a proposed rule to amend the FAR and implement a section of the Small Business Jobs Act of 2010. This proposed rule, which will implement Section 1334 of the Small Business Jobs Act of 2010 and the Small Business Administration’s (SBA) implementation of Section 1334, requires that, among other things, a prime contractor (1) notify the contracting officer, in writing, if the contractor makes a reduced or untimely payment to a small business subcontractor; and (2) disclose the reasons for the reduced [...]Read more

Reasonable Interpretations of Statutes May Prevent Liability Under the False Claims Act

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As a recent case from the District of Columbia Circuit demonstrates, the knowledge requirement of the False Claims Act (FCA) often creates the largest impediment for those looking to hold defendants liable for their false certifications to the government. In United States ex. rel. Purcell v. MWI Corp., No. 14-5210, 2015 WL 7597536 (D.C. Cir. Nov. 24, 2015), the United States brought a civil action under the FCA against MWI Corporation. The government alleged that MWI made false certifications to the Export-Import Bank to secure loans for financing the sale of water pumps to Nigeria. Under the terms [...]Read more