Our government contracts team successfully defended an award to CWU, Inc. of a $143 million task order by the Department of the Army, U.S. Army Intelligence and Security Command (INSCOM) for linguist support services. The task order was issued under the Defense Language Interpretation and Translation Enterprise (DLITE) contract, which is a five-year, $9.7 billion Multi-Award Task Order Contract that provides interpretation and translation services DOD-wide at a variety of security levels.

The cost-plus-fixed-fee task order, which has a one-year base period and two one-year options, is for linguist, interpretation and translation support services to intelligence operations in order to meet ongoing mission requirements for the U.S. Central Command (CENTCOM), European Command (EUCOM) and African Command (AFRICOM). The Army first selected CWU for award in November 2014. SIG, the incumbent contractor, protested that award and the agency took corrective action in December 2014. INSCOM affirmed its original award decision in March 2015 and SIG again protested.

Continue Reading Bass, Berry & Sims Defends Award in GAO Bid Protest of $143 Million Task Order

According to recent statistics, the numbers of suspension and debarment actions against companies and individuals has risen dramatically during the last few years. As cited in a recent article I authored for Law360, “[b]etween fiscal year 2009 and FY 2013, the number of suspensions government wide increased from 417 to 887, proposed debarments increased from 750 to 2,229, and debarments increased from 669 to 1,696. The most recent figures, included in a March 31, 2015, report issued by the Interagency Suspension and Debarment Committee, show that dramatic uptick has continued, with 1,009 suspensions, 2,241 proposed debarments, and 1,929 debarments in FY 2014.”

Although challenges to a suspension and debarment action are rare, three cases were filed within the first half of 2015 that may provide insight on this increasingly used administrative tool and ways contractors are contesting the claims.

The full article, “A Welcome Review of Suspension and Debarment Actions,” was published by Law360 on June 30 and is available online.

Recently, U.S. District Judge Deborah K. Chasanow sentenced Wesley Burnett of Hermosa Beach, California to 42 months in prison followed by three years supervised release for conspiracy to commit wire fraud in connection with a scheme to fraudulently obtain more than $2.8 million in federal government contracts through the use of the Small Business Administration’s 8(a) program, designed to assist disadvantaged businesses. Burnett originally pled guilty to these charges back in October of 2014.

Burnett was the owner and operator of Confederate Group LLC and Total Barrier Works (TBW). These companies maintained and installed anti-terrorist systems and vehicle-control equipment such as security barriers, bollards, gates, uninterrupted power systems (UPS) and other perimeter security anti-terrorist equipment.

From 2007 until 2014, Burnett admitted that he falsely represented to the U.S. Government that Confederate Group LLC was a “Hispanic-American Owned Business,” a “Minority Owned Business,” a “Service Disabled Veteran Owned Business” and a “Small Disadvantaged Business” in order to win federal government contracts set aside exclusively for firms in these categories. However, Burnett was neither a member of any of these racial or ethnic minority groups nor a disabled veteran nor member of a socially disadvantaged group. These false representations resulted in Confederate Group LLC receiving approximately $534,315 in unjustified contract awards.

Continue Reading Business Owner Sentenced for Fraudulent “Pass-Through” Contract Scheme

I recently co-authored an article with my colleagues John Kelly, Bryan King and Robert Platt discussing the vital steps that government contractors should take when conducting an internal investigation. As outlined in the article,  the following measures are key components of any internal investigation:

  1. Assembling an appropriate investigation team
  2. Preserving privilege
  3. Preparing an investigation work plan
  4. Information gathering
  5. Litigation holds
  6. Witness interviews
  7. Investigation report
  8. Implementing corrective actions and considering disclosure

As stated in the article, “While an effective internal investigation cannot always eliminate negative consequences, it can identify liabilities, assess witnesses, develop helpful facts, spot weaknesses in a contractor’s compliance program and limit future compliance violations.”

The full article, “Contractors in the Crosshairs: Investigations Passing Government Scrutiny,” was published June 22 by Westlaw Journal – Government Contract and is available in the PDF.
Download Document – Westlaw Journal Government Contract (June 22, 2015)

On June 16, the U.S. Justice Department (DOJ) announced that it had concluded a non-prosecution agreement (NPA) with IAP Worldwide Services, Inc., a Florida-based government contractor, related to apparent violations of the Foreign Corrupt Practices Act (FCPA). DOJ also announced that a former vice president of IAP pleaded guilty to conspiracy to violate the FCPA. IAP agreed to pay more than $7 million to resolve the matter; sentencing for the former vice president is scheduled for September 2015.

Background. IAP provides facilities management, contingency operations, and professional and technical services in contracting capacities to U.S. and non-U.S. governments. According to DOJ, the violations occurred in connection with a surveillance program the government of Kuwait sought to develop. An agent of IAP contracted with the Kuwaiti government to perform services under the first phase of the program. DOJ alleged that, when the agent was paid for its services, it transferred money to IAP, which in turn steered funds to a Kuwaiti company to kickback to Kuwaiti government officials.

Continue Reading Government Contractor Fined for FCPA Violations; Former VP Enters Guilty Plea

GSA-Schedule-logoThe General Services Administration (GSA) recently announced that beginning June 15, 2015, it will be using a new contractor assessment report to evaluate contractors with Multiple Award Schedule (MAS) contracts. The new report, which is available here, will be issued to contractors after GSA industrial operations analysts (IOAs) conduct their contract assessments. The report will be limited to performance against contract terms and conditions and will be provided only to GSA and the individual contractor. The idea is to provide timely and tailored feedback to contractors and the acquisition community on issues pertinent to MAS contract compliance. GSA leadership spent two years developing the new report, which is intended to replace the Contractor Assistance Visit Report and the Administrative Report Card. GSA stated that assessments will be more frequent with contracts likely to have compliance issues, based on yearly sales. GSA hopes the Contractor Assessment Report will allow contractors and Contracting Officers to address problems before they become major issues.

Continue Reading GSA’s New MAS Contractor Assessment Report – Is It Better?

In best value procurements, the procuring agency generally has a great deal of discretion in selecting which proposal represents the best value to the government. Part of that discretion is the ability to select a proposal that is higher in price, and higher rated technically, than the competition. However, an agency cannot simply select a higher-priced offeror without considering the benefits of the higher-priced proposal and documenting why its technical superiority warrants paying the higher price.

This issue was at play in a recent GAO protest, DKW Communications, Inc. The solicitation in question here was issued by DARPA for various unclassified information technology services and support under GSA’s Alliant Small Business Government-wide Acquisition Contract. The solicitation contemplated the award of a single cost-plus-award-fee task order to the offeror representing the best value to the government.

Because the awarded contract was going to be cost based (as opposed to fixed-price), the agency determined each offeror’s probable cost based upon their proposed approach. To the extent an offeror’s proposed cost differed from its probable cost, the agency considered that difference to be the “Cost Risk.” In making its best value determination, the agency considered each offeror’s technical rating, past performance rating, and cost risk. After its initial evaluations, the agency narrowed its consideration of award down to three offerors. The agency ultimately selected Agile Defense, Inc., whose proposal was higher-rated and higher-priced than the other two offerors under consideration.

Continue Reading Learning from Bid Protests: Award to Higher-Priced, Higher-Rated Proposal Requires Consideration and Documentation

Last month, the Sixth Circuit affirmed sanctions imposed by a district court against a relator and his counsel for bringing a frivolous False Claims Act (FCA) action. The ruling in United States ex rel. Jacobs v. Lambda Research, Inc., No. 14-3705, 2015 WL 1948247 (6th Cir. May 1, 2015) is a positive development for companies that have faced an increase in FCA actions in recent years. It also illustrates the use of a sanctions provision that is specific to FCA claims.

Lambda Research is a small business that contracts with the United States Navy to strengthen the metal components of warplanes. Terry Jacobs, the individual who brought the FCA case, worked for Lambda for two years before he left the company to become vice president of a competitor business, Ecoroll Corporation.

Lambda thereafter sued Jacobs in state court, alleging that Jacobs stole Lambda’s trade secrets and gave them to Ecoroll. A jury found Jacobs liable and awarded Lambda $8 million in damages. Additionally, the state court found that Jacobs misappropriated trade secrets willfully, and ordered him to pay Lambda $1.4 million in attorney’s fees.

Continue Reading Relators Beware – Sanctions Upheld for “Vexatious” False Claims Act Suit

We are glad to be back in Oak Ridge, Tennessee this week!

On Thursday, June 18, I will be attending the University of Tennessee Procurement Technical Assistance Center’s lunch and learn called, “How to get on the GSA Schedule.” The session is sponsored by the Tennessee Small Business Development Center and the Oak Ridge Chamber of Commerce.

As yet another step in the continuing Export Control Reform (ECR) effort, the U.S. government has recently issued a series of proposed rules that may help clarify key regulatory definitions and requirements that have confused exporters in the past. In particular, the proposed rules may ease licensing requirements for U.S. persons – and the employers of U.S. persons – working in the global defense industry.

First, on May 26, the U.S. Department of State, Directorate of Defense Trade Controls (DDTC) proposed changes to the International Traffic in Arms Regulations (ITAR) to clarify the registration and licensing requirements that apply to U.S. persons in the United States or abroad who furnish defense services to, or on behalf of, their non-U.S. person employers. See 80 Fed. Reg. 30001 (May 26, 2015).

Then, on June 3, DDTC issued proposed revisions to help clarify the scope of activities and information covered by the ITAR. See 80 Fed. Reg. 31525 (June 3, 2015). The same day, the U.S. Department of Commerce, Bureau of Industry and Security (BIS) issued a parallel proposed rule to amend key definitions of the U.S. Export Administration Regulations (EAR). See 80 Fed. Reg. 31505 (June 3, 2015).

What follows is a brief summary of several of the key changes.

Continue Reading ECR Marches On: State and Commerce Announce More Proposed Changes

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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