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Well, it is certainly an interesting time to be a federal government contractor. In the last few weeks, we have seen Executive Orders (EOs) flying fast and furious, and a lot of other activity impacting federal government contractors. Overall, these various new developments have resulted in a flurry of contract modifications, suspensions, and terminations for…

As much we all love Rihanna, it’s a real shame how many contractors have called me in the last few days with issues that remind me of her well-known “Pay Me What You Owe Me” lyrics. They’re brought to mind because contractors are – on an increasing basis – being denied payment on properly invoiced sums. In some cases, contractors have even been expressly advised by agency officials that they will not be paid at all for the foreseeable future. “Don’t submit any future invoices until you hear from us” is becoming a shockingly common refrain. And yet, the work being invoiced was properly performed. There is no allegation of delayed or deficient performance. Indeed, the amounts due are undisputedly owing to the contractor. So what is going on?!?Continue Reading Pay Me What You Owe Me, Don’t Act Like You Forgot!

Just how broad is the scope of the False Claims Act (FCA)? That is the basic question posed in Wisconsin Bell, Inc. v. U.S. ex rel. Heath, No. 23-1127. Put more directly, the case addresses whether reimbursement requests under the Schools and Libraries Universal Service Support program—better known as the E-Rate program—are actionable “claims” exposed to liability under the FCA. But when the US Supreme Court hears oral argument next month, the justices will grapple with broader questions with implications far beyond this case: (1) when does the government “provide” money in any transaction or program so that FCA liability attaches; (2) when is an independent government-sponsored enterprise (e.g., Fannie Mae/Freddie Mac) acting as an “agent” of the United States for FCA purposes; and (3) to what extent do those who deal with private entities established or chartered pursuant to federal law need to watch this case to determine their potential exposure under the FCA and its panoply of enforcement mechanisms?Continue Reading Wisconsin Bell: Testing the Elasticity of False Claims Act’s Scope

Like most businesses, government contractors are in the customer service field and have been conditioned to operate by the old adage that the “The customer is always right.” After all, the customer pays the bills, right? As a general matter, this is true. Uncle Sam is responsible for paying the bills submitted by contractors and—most of the time—payment arrives without issue. That said, there are circumstances in which the government refuses to pay for work performed. One of the more common reasons for such nonpayment is the government’s contention that the work at issue was “not authorized” under the operative contract, notwithstanding the fact that the contracting officer’s representative (COR) was well aware of the work being performed. There are, in fact, many decades of decisional law emanating from courts and boards of contract appeals relating to the nuances of this precise issue. This means that an untold (but stratospherically high) number of frustrated contractors have suffered very expensive battle scars trying to litigate their way to payment by convincing judges that the work performed actually was authorized by the appropriate government personnel. A recent publication by the Department of Defense (DoD) provides contractors with an important reminder as to how to avoid this costly fate.
Continue Reading “Respect My Authority!”—An Important Reminder as DoD Issues an Updated Guidebook for Contracting Officer Representatives

Unless you’ve been living under a rock or on a self-sustaining deserted island, the chances are high that you have become quite familiar with the term “inflation” (i.e., the rising costs of goods and services) over the past few years. Indeed, everything (from gasoline to gumballs and milk to movie tickets) appears to be more expensive as of late. Unfortunately, government contractors are not immune from this current economic reality. As most of us know all too well, many contracts that were negotiated and priced over the past 18 to 24 months are simply more expensive to perform now than was reasonably anticipated when bids were prepared.

In recognition of these soaring prices, the Department of Defense (DoD) issued a May 25, 2022, Memorandum titled “Guidance on Inflation and Economic Price Adjustments,” the purpose of which is to assist contracting officers (COs) in (i) navigating the impacts of inflation on existing contracts and (ii) managing downstream inflation risks on prospective contracts. Here are the key takeaways and our suggested courses of action to best protect your company’s bottom line:Continue Reading DoD Braces for Inflation: Guidance for Contractors Battling Rising Costs

As has been widely reported, the United States Federal Bureau of Investigation is warning of mass protests and potential violence accompanying the inauguration of President-Elect Joe Biden on January 20, 2021. However, unlike the tragic events of January 6, 2021, at the U.S. Capitol, this warning is being directed to the capitols of all fifty states in addition to numerous assets located throughout the National Capitol Region. In light of these developments, federal contractors who find their operations close to these seats of power may have concerns as to whether to stay open or close their offices and keep employees away. Accordingly, we provide a timely reminder of key considerations that contractors should take into account when balancing the practical reality of safety concerns against the legal obligations of contractual compliance.
Continue Reading Office Closures and Limited Access: Federal Contractor Considerations When Weathering Potential Political Unrest

On May 22nd, Practice Group Co-Leaders Franklin Turner and Alexander Major delivered a presentation on Effectively Prosecuting Contract Claims Against the Government to attendees at the annual Native Hawaiian Organizations Association Business Summit in Honolulu, Hawaii. After the presentation, Franklin and Alex also hosted a legal Q&A session for contractors of all sizes.

The late, great Yogi Berra once said that “Baseball is 90 percent mental. The other half is physical.” Sometimes it seems as if Yogi’s logic is equally applicable to the claims process in the world of Government contracting, where 90 percent of the early battle is following the correct claim initiation procedures prescribed by the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101-7109.
Continue Reading Government Contractors Can Learn From Yogi Berra: Failure to Follow Correct Claim Submission Procedures Results in Jurisdictional Doom

Forrest Gump’s mama was a brilliant woman. As anyone who watched the 1994 Academy Award-winning classic can confirm, Mrs. Gump’s advice to her son provided an indispensable well of wisdom from which Forrest often drew to navigate life’s many adversities. Perhaps the most famous of Mrs. Gump’s quotes equated the unpredictability of life with the somewhat surprising discoveries one can make after removing the lid from a box of chocolates. As it turns out, contractors can learn a lot from Mrs. Gump.
Continue Reading AMX Case Shows Contractors Can Learn From ‘Forrest Gump’