Government Contracts June 15, 2021

President Biden Announces Findings of Critical Supply Chain Assessment

By Edwin O. Childs, Abram J. Pafford, Todd R. Steggerda, A. Rose Stern, Jason M. Vespoli and Jennifer E. Matthes

On June 8, the White House released the findings of a 100-day assessment of critical supply chains, identifying actions needed to bolster domestic manufacturing of critical goods, reduce dependence on foreign nations for supply chain needs, create jobs and address unfair trade practices.

For highlights of the report detailing structural weaknesses in supply chains for semiconductor manufacturing, critical minerals, active pharmaceutical ingredients and large-capacity batteries, please read our alert.

Government Contracts May 20, 2021

Biden Administration Orders Improvements to Cybersecurity and Federal Networks Amid Cyberattacks

By Jason M. Vespoli, Abram J. Pafford, Edwin O. Childs, A. Rose Stern, Anne S. Peterson and Andrew Konia

On May 12, President Biden signed an executive order mandating that the federal government significantly improve cybersecurity within its networks and modernize federal cyber defenses. This move follows a series of cyberattacks on private companies and federal government networks over the past year, including a recent incident that resulted in gasoline shortages along the U.S. East Coast.

To learn about new standards for federal information systems, which will trigger wide-reaching changes for federal contractors and private sector industry participants, see the full alert on our website.

Government Contracts April 28, 2021

Biden Administration Orders $15 Minimum Wage for Federal Contractors

By Edwin O. Childs, A. Rose Stern, David Greenspan, Abram J. Pafford, Todd R. Steggerda, Jason M. Vespoli and Daniel C. Masakayan

On April 27, 2021, President Biden signed an Executive Order (EO) requiring federal contractors performing service, construction or concession contracts to pay a $15 minimum wage to those employees who are working on such contracts.

As noted in the White House Fact Sheet, this EO will build on Executive Order 13658 (signed in February 2014), under which the government required federal contractors to provide a $10.10 minimum wage starting in in 2015. The EO imposes five substantive provisions with the stated goal of “promoting economy and efficiency” in federal contracting.

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Fraud, Deception and False Claims April 27, 2021

The Perils of Pleading the Fifth in the Corporate Fraud Context

By Michael J. Podberesky, Patrick Rowan and Edward L. Smith

“Pleading the Fifth” is one of the most commonly known phrases in our legal system, and the right against self-incrimination is one of the Constitution’s most meaningful protections. That said, in the corporate fraud context, exercising that right often entails risks and costs that may outweigh the potential benefits. As such, companies—particularly those that contract with the federal government—and their senior executives should be aware of the limits and potential high costs of exercising the right against self-incrimination in corporate fraud investigations and actions.

Fraud, Deception and False Claims April 23, 2021

U.S. Attorney’s Office Settles with Urgent Care Providers to Resolve False Claims Act Allegations Related to Credentialing Issues

By Michael J. Podberesky and Brandi G. Howard

On April 8, 2021, the U.S. Attorney’s Office for the District of South Carolina announced a $22.5 million settlement with a network of urgent care providers, Doctors Care, P.A. (Doctors Care), and its management company, UCI Medical Affiliates of South Carolina, Inc. (UCI), for alleged False Claims Act (FCA) violations.

Government Contracts, Uncategorized April 15, 2021

NSCAI Recommends $40 Billion Investment in Artificial Intelligence, R&D and Innovation

By Patrick Rowan, A. Rose Stern and Jason M. Vespoli

Congress stood-up the National Security Commission on Artificial Intelligence (NSCAI) to make recommendations to the President and Congress “to advance the development of artificial intelligence [AI], machine learning, and associated technologies … to comprehensively address the national security and defense needs of the United States.” The 2019 National Defense Authorization Act (NDAA), Section 1051 further instructed the NSCAI to focus on issues including global competition, research and development, risks and ethical concerns.

Compliance April 6, 2021

DOJ Announces Plan for Coordinated Civil Rights Response to COVID-19

By Michael J. Podberesky, Lawrence J. Cameron, David Pivnick, Elizabeth P. Redpath, Joseph L. Wilson II and Brandi G. Howard

On April 2, 2021, Pamela S. Karlan, the Principal Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice Civil Rights Division (DOJ), issued a public statement regarding the Division’s intent to lead a coordinated civil rights response to the Coronavirus (COVID-19) pandemic. The statement, which attached a resource guide, is intended to assist Federal agencies, state and local governments, and recipients of Federal funds, including healthcare providers, in addressing ongoing civil rights challenges related to the COVID-19 pandemic.

The statement advised healthcare providers and long-term care facilities (LTCs), among other entities, that the DOJ intends to “vigorously enforce Federal civil rights,” and that civil rights obligations still apply during emergencies like the COVID-19 pandemic. The statement addressed the need to combat disability discrimination by ensuring that all people with disabilities have equal access to healthcare. The statement cited to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) and the need for healthcare providers to comply with these laws “when making decisions about who will receive medical care, including vaccines and hospital beds.” Furthermore, the statement discussed that providers must comply with disability laws when “crafting and implementing policies such as crisis standards of care, visitation rules, and vaccine distribution plans.”

Compliance, Enforcement and Prosecution Policy and Trends April 1, 2021

Courts Adopt Varying Approaches to Implementing Due Process Protections Act

By Lawrence J. Cameron, Michael F. Easley, Jr., V. Kathleen Dougherty and Edward M. Nogay

In a December 2020 article, we highlighted in this blog the amendment of Federal Rule of Criminal Procedure 5(f) in the new Due Process Protections Act (“DPPA” or “the Act”). The Act requires federal courts to enter a Brady order at the outset of all criminal cases and may prompt courts to enter orders setting specific disclosure rules, making it easier to hold prosecutors in contempt for violating such orders. In the five months since the Act went into effect, Courts have varied in their implementation of Rule 5(f), suggesting that discovery orders under the new rule will vary based on the leanings of each particular judge, district, or circuit, and the requirements of each individual case. To date, some courts have decided to succinctly recite the language of Rule 5(f) in their initial orders, essentially reminding the prosecution of its pre-existing discovery obligations. Others are taking a more expansive view in implementing the revised rule, issuing specific and detailed orders addressing the timing, order, and scope of the prosecution’s discovery obligations. Continue Reading

Enforcement and Prosecution Policy and Trends, Fraud, Deception and False Claims March 31, 2021

COVID-19 Fraud Surge: Criminal Enforcement of Pandemic-Related Fraud Reaches “Unprecedented Pace,” DOJ Warns

By Rodger A. Heaton, Michael J. Podberesky and Simon Davidson

While the spread of COVID-19 may finally be slowing, government enforcement of pandemic-related fraud is not. It is surging. And that may explain why you are hearing from the government more than usual, or will soon.

The U.S. Department of Justice (DOJ) announced last week that it has now charged nearly 500 defendants with crimes involving COVID-19 related fraud, warning that its coordinated enforcement efforts are moving at an “unprecedented pace and tempo.”

“The Department of Justice has led an historic enforcement initiative to detect and disrupt COVID-19 related fraud schemes,” said Attorney General Merrick B. Garland. “The impact of the department’s work to date sends a clear and unmistakable message to those who would exploit a national emergency to steal taxpayer-funded resources from vulnerable individuals and small businesses.”

Fraud, Deception and False Claims, Government Contracts March 8, 2021

U.S. Supreme Court Declines to Clarify False Claims Act Falsity Standard

By Michael J. Podberesky, Todd R. Steggerda, David Pivnick, John S. Moran, Lawrence J. Cameron, Brandi G. Howard and Jason M. Vespoli

The U.S. Supreme Court recently declined to address a circuit split regarding the standard for establishing that a statement material to a claim for payment is false under the False Claims Act (FCA); specifically, whether the FCA requires pleading and proof of an “objectively false statement,” or whether liability can be based on allegedly false opinions. While the Courts of Appeals have taken conflicting positions on these issues, the circuit split is not as deep as would appear and the variation in standards are likely to have a minimal impact on ultimate outcomes. Nevertheless, with these varying standards for establishing falsity, healthcare providers and government contractors should take proactive steps to ensure signed certifications pertinent to a claim reflect appropriate diligence and decision-making and convey reasonably and honestly held opinions.

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