On June 2, 2023, the FAR Council issued an Interim Rule to implement the prohibition on having or using TikTok or any successor application or service developed or provided by ByteDance Limited (covered application). Importantly, the prohibition applies not only to Government-issued devices but encompasses contractor and contractor employee-owned devices (e.g., employee devices used as part of a bring-your-own-device program) as well. The Interim Rule took immediate effect and requires new FAR clause FAR 52.204-27, Prohibition on a ByteDance Covered Application, to be included in solicitations issued on or after June 2, 2023. In addition, solicitations issued before the effective date were required to be amended by July 3, 2023, provided that award of the resulting contract(s) occurs on or after the effective date. Existing indefinite-delivery, indefinite-quantity contracts were required to be modified to include the new clause by July 3, 2023, to apply to future orders. Finally, if exercising an option or modifying an existing contract to extend the period of performance, contracting officers must include the clause. In short, this clause will soon be in most if not all Federal government contracts. Contractors should take action now to ensure that they are prepared to comply with these requirements and that employees are familiar with and trained regarding the prohibition.Continue Reading TikTok Dances Off of Contractor IT Devices—Interim Rule Prohibits ByteDance Limited Applications
On January 14, 2021, the Department of Justice released its updated statistics for False Claims Act (FCA) recoveries in FY 2020. The Civil Division reported that it recovered $2.2 billion in settlements and judgments in the previous fiscal year—down nearly $900 million from FY 2019, and off nearly two-thirds from the government’s high-watermark collections of $6.1 billion in FY 2014. Although $2.2 billion in net FCA recoveries represents DOJ’s lowest FCA haul in a decade, it is still a remarkable figure considering court closures and pandemic-slowed dockets across the country over the past eleven months.
Continue Reading 2020 False Claims Act Recoveries Were Down by One-Third in 2020. . . and That’s Bad News for Federal Contractors
When Abraham Lincoln signed the False Claims Act (FCA) into law in 1863, it was a legislative reaction to a series of sensational congressional investigations into war profiteers’ sale of phony provisions and useless equipment to the U.S. government during the Civil War. Contractors who agreed to provide 100-pound bags of flour filled many of the bags with sand. Munitions suppliers demanded full payment (at exorbitant, wartime prices) for rusted, nonfunctioning weapons gleaned from scrap heaps. It was not a leap to find claims that sand was flour, or that a rusted flintlock was an Army rifle, were objectively false; these were not just breaches of contract, but out-and-out frauds. Congress stepped in to stop this “plundering of the public treasury,” and the FCA imposed penalties on those who sought to defraud the U.S. government and its taxpayers.
Continue Reading Honest Abe Would Demand “Objective Falsity” for FCA Liability. Will the Supreme Court?
The spread of the COVID-19 virus and the unprecedented steps taken by federal, state and local authorities to contain it by shutting down or significantly altering normal business operations pose great challenges to government contractors in meeting the needs of their universal customer, the U.S. Government. Work spaces are closed. Supply chains are disrupted. Key employees may no longer be available to oversee critical operations – both on and off U.S. Government installations. Here are some proactive measures that contractors can take now to avoid loss and to maximize the potential of obtaining new business opportunities created by the expected exponential increase in government spending:
Continue Reading COVID-19 Federal Contractor’s Guide – Some Quick Points for Surviving and Thriving in This Unprecedented Environment