Government Contracts and Litigation

June 30, 2016June 30, 2016 by Duane Morris

McDonnell Decision and the FCPA

On June 27, 2016, in the last decision of the 2015–2016 term, the U.S. Supreme Court, in McDonnell v. United States, No. 15-474, narrowed the type and character of “official acts” that could underpin corruption charges against a public official. Federal prosecutors contended that former Governor of Virginia Robert McDonnell was guilty of a variety of corruption charges for accepting $175,000 worth of loans, gifts and other benefits in exchange for what the government termed “official acts.” After being found guilty by a jury, McDonnell’s conviction was upheld on appeal, but ultimately reversed by the Supreme Court, which held that the jury instructions too broadly defined “official acts” as “acts that a public official customarily performs.” Instead, the Court concluded that it is impermissible to accept payment only for an “official act,” which it defined as a “decision or action” on a pending “question, matter, cause, suit, proceeding, or controversy,” and not a routine political action, such as setting up a meeting, call or event. The Court’s decision provides much-needed clarification to politicians and stakeholders alike regarding the scope of federal anti-corruption law.

To read the full text of the Alert, please visit www.duanemorris.com.

June 27, 2016 by Christopher D. Durham

OFCCP Issues Final Rule Updating Federal Contractor Sex Discrimination Guidelines

In an effort to bring its sex discrimination guidelines “from the ‘Mad Men’ era to the modern era,” on June 14, 2016, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a Final Rule containing sex discrimination guidelines for federal government contractors and subcontractors.

While many provisions in the updated guidelines simply bring the guidelines up to speed with current law, the guidelines contain important pronouncements of which every federal contractor should be aware – from pay discrimination and pregnancy accommodation to sex stereotyping and protections for transgendered employees.

To read the full text of this Duane Morris Alert, please visit www.duanemorris.com.

June 20, 2016June 20, 2016 by Duane Morris

U.S. Supreme Court Unanimously Holds That Veterans Are Entitled to Full Set of Competitive Bidding Opportunities Congress Enacted in 2006 Veterans Act

In a ruling affecting billions of dollars of government contracts, and impacting tens of thousands of veteran-owned small businesses across the United States, the U.S. Supreme Court unanimously upheld expanded competitive bidding opportunities for veteran-owned small businesses in Kingdomware Technologies v. United States, 14-916.

To read the full text of this Duane Morris Alert, please visit www.duanemorris.com.

June 17, 2016 by Duane Morris

U.S. Supreme Court Concludes That Implied False Certification Is Allowed but Limited; FCA Liability Is Expanded

A business may now not know whether it committed fraud until the government chimes in. There are thousands of regulations with which businesses need to comply. If you recklessly (or perhaps worse, intentionally) miss one—regardless of which one—and it proves to be material to the government’s decision to pay you, you might be on the hook for fraud. The analysis used to turn on whether the government had labeled that regulation a “condition of payment.” However, with today’s Supreme Court’s decision in Escobar, the analysis has shifted to whether there was an intent to mislead and whether it was material to the government’s decision to pay. In its unanimous decision, the Supreme Court concluded that what matters is not what label the government attaches to a particular requirement, but whether a party knowingly violated a requirement they know to be material to the government’s decision to pay.

To read the full text of this Duane Morris Alert, please visit www.duanemorris.com.