Bona Fide Needs with Arnold & Porter and the PubKGroup

The False Claims Act is the government's primary tool for redressing fraud against the United States. A party violates the Act when they knowingly submit a false claim for payment to the government. If a party is found to have violated the False Claims Act, they could be liable for significant treble damages and civil fines. Needless to say, government contractors, who regularly submit claims for payment to the government, must keep up with False Claims Act trends. In this episode of Bona Fide Needs, Tirzah Lollar and Christian Sheehan of Arnold & Porter examine recent False Claims Act developments. They discuss how the Trump Administration has impacted False Claims Act enforcement, a recent constitutional challenge to the Act's qui tam provision, and they provide an update on the Department of Justice's Civil Cyber Fraud Initiative.

The Trump administration has issued over 80 executive orders, directing agencies to freeze funding on contracts and grants. This has resulted in stop work orders and terminations, leaving contractors and grantees in limbo. While these executive orders have affected all contractors and grantees, they have a potentially pernicious effect on nonprofits. In this episode of Bona Fide Needs, Kristen Ittig and Jim Joseph of Arnold & Porter examine how Trump's executive orders are impacting nonprofit contractors and grantees. Among other things, they discuss the orders that could affect nonprofits, the illegality doctrine, and the potential risks to nonprofits' tax-exempt status.

Enacted in 2021, the Corporate Transparency Act is intended to reduce illicit activity, including tax fraud, money laundering, and the funding of terrorist activity.  What does this mean for government contractors?  In this episode of Bona Fide Needs, co-host Mike McGill sits down with his Arnold & Porter colleague Naomi Hartman, a partner in the firm's corporate and finance practice group. Mike and Naomi discuss the intention of the CTA, which entities are covered, and what information companies may need to provide the government. Show notes Arnold & Porter: Beneficial Ownership Information Reporting FINCEN: Beneficial Ownership Information

The Department of Justice has released its report on False Claims Act enforcement for fiscal year 2023. Did recoveries increase? What's the story behind the numbers? In this episode of Bona Fide Needs, Pub K Group Managing Editor Bill Olver speaks with Arnold & Porter Partners Tirzah Lollar and Christian Sheehan about DOJ's FCA recoveries, as well as developments following the Supreme Court's decision in Polansky, which raised questions about the constitutionality of the qui tam provisions of the FCA.   Show notes DOJ’s FY23 FCA Stats Show Bounce Back From Last Year’s Low With Record Number of Cases Initiated by DOJ | FCA Qui Notes | Blogs | Arnold & Porter (arnoldporter.com)

Each year, Congress takes up the National Defense Authorization Act, which sets out budget and policy priorities for the Department of Defense. This bill is one of very few pieces of legislation that must pass every year. In this episode, defense and policy experts from Arnold and Porter discuss the passage of this year's NDAA and some important policy considerations for defense contractors. The firm's Chuck Blanchard, Adrienne Jackson, and Yuvaraj Sivalingam will discuss: Notable provisions related to contracting and procurement, including new disclosure requirements and small business matters Contracting restrictions on doing business with “covered countries”, including China, Russia, and Iran Language governing supply chain and critical minerals issues Buy America provisions Artificial Intelligence, cyber, and quantum information science and technology directives and investments

At the end of December, the Department of Defense published its proposed rule implementing the Cybersecurity Maturity Model Certification. This long-anticipated issuance answered many - but not all - of the questions about how the department will implement the program. In this episode of Bona Fide Needs, Arnold and Porter's Ronald Lee and Tom Pettit discuss the proposed rule and address some of those questions contractors may be asking: What should contractors focus on immediately? What did the rule resolve and what was left uncertain? How should subcontractors approach the proposed rule? Can a contractor (or DIDBCAP for Level 3) ever affirm compliance if the contractor IT system is not in full compliance? How can a contractor lose a self-certification or certification assessment? Show Notes Department of Defense Issues CMMC 2.0 Proposed Rule | Advisories | Arnold & Porter (arnoldporter.com) Pub K’s Government Contracts Annual Review 2024

What's in store for contractors in 2024? Arnold & Porter legal and policy experts pull out their crystal ball to forecast developments in many important topics. Christian Sheehan and Jayce Born on False Claims Act constitutionality Ron Lee on the Cybersecurity Maturity Model Certification implementing regulations Tom Pettit on a recent proposed rule on cyber incident reporting and information sharing Chuck Blanchard on supply chain regulations and Federal Acquisition Security Council removal orders Stuart Turner on nontraditional bid proposal evaluation processes and how to challenge them Show Notes 1:20 - False Claims Act constitutionality 11:00 - CMMC implementing regulations 17:30 - Proposed rule on cyber incident reporting and information sharing 24:15 - Supply chain regulations and FASC removal orders 28:30 - Nontraditional bid proposal evaluation processes and how to challenge them Pub K’s Government Contracts Annual Review 2024

In Ultima Services v. the Department of Agriculture, a federal district court held that the Small Business Administration’s reliance on the rebuttable presumption of disadvantage for its 8(a) business development program violated the Fourteenth Amendment’s Equal Protection clause. That decision created a cascade of developments, as SBA froze new 8(a) applications, and then issued clarifying guidance to 8(a) participants. To examine this and other developments, Arnold & Porter partner Mike McGill is joined by Senior Associate Tom Pettit. For additional reading on these topics, please visit Pub K Group online. 

After weeks of drama and legislative inaction, the House of Representatives finally has a new speaker as Representative Mike Johnson of Louisiana unexpectedly rose to the highest office in the chamber. As Congress faces fast-approaching deadlines for FY2024 appropriations and the National Defense Authorization act, how will Speaker Johnson move this must-pass legislation through a contentious House and Democratic Senate? In this episode of Bona Fide Needs, Arnold & Porter Partner Mark Epley and Policy Advisor Jessica Monahan discuss how we got here, the prospects for FY2024 spending bills and the NDAA, reactions from the Senate, what contractors should be doing, and how the 2024 election may impact further legislation.   0:00 - Introduction 0:45 - Headlines 11:30 - Interview 13:00 - How Mike Johnson ascended to the Speakership 16:45 - The must-pass bills before Congress 21:00 - The Speaker's plan for moving legislation 29:00 - Action in the Senate 34:00 - What contractors should be doing 36:30 - The impact of the 2024 election on upcoming legislation 43:30 - Wrap-up For links to articles and blog posts discussing the topics in this month's podcast, visit Pub K online. 

While the government contracting community had its eyes on the Supreme Court's consideration of the False Claims Act's scienter element, the Justices issued another decision that could have an even more significant impact on the fraud law. In this episode of Bona Fide Needs, Pub K Group Managing Editor Bill Olver speaks with Arnold & Porter Partners Tirzah Lollar and Christian Sheehan about the court's decision in Polansky, as well as some provocative comments in a dissent by Justice Clarence Thomas. Also in this episode, Bill breaks down recent developments involving the Schutte and Proctor False Claims Act decisions, the Department of Defense's Other Transactions guidance, the White House's plan to implement the National Cybersecurity Strategy, and an important D.C. District Court decision that could alter the way the Small Business Administration calculates total revenues for the purposes of small business set-aside programs.  0:00 - Introduction 0:45 - Headlines 7:00 - Conversation with Tirzah Lollar and Christian Sheehan 19:20 - Conclusion  Show Notes are available at the PubKGroup website.

In April, the Supreme Court announced it would take up a lawsuit involving the Department of Commerce’s oversight of marine fishing vessels. Of import to federal contractors, the case provides an opportunity for the Justices to examine the 40-year old Chevron deference, and consider whether they should overrule or clarify the previous holding. In this episode of Bona Fide Needs, Pub K Group Managing Editor Bill Olver speaks with Arnold & Porter Partner Kristen Ittig, who explains the principles of the Chevron deference, how it is used in court, the current case before the Supreme Court, and how overruling the Chevron case could impact federal contractors. Also in this episode, Bill breaks down recent developments involving the debt ceiling, the Department of Justice's authority to dismiss qui tam cases, NIST's update to guidance on protecting controlled unclassified information, and changes to SBA's small business regulations. 0:00 - Introduction 0:30 - Headlines 11:00 - Conversation with Kristen Ittig 22:00 - Conclusion  Show notes are available at the Pub K Group website. 

On June 1, the Supreme Court issued its much-awaited opinion in U.S. ex rel. Schutte v. SuperValu, Inc. and U.S. ex rel. Proctor v. Safeway, Inc., handing down a unanimous decision reversing the Seventh Circuit and rejecting the application of Safeco’s “objective reasonableness” standard to the False Claims Act. The decision will have significant ramifications not only for FCA litigation pending in the Seventh Circuit, but in courts across the country, as multiple courts of appeals and district courts had also adopted an “objective reasonableness” requirement. In this episode, Pub K Group Managing Editor Bill Olver speaks with Arnold & Porter Partners Tirzah Lollar and Christian Sheehan, who discuss what the decision means and its implications for FCA defendants.  0:00 - Introduction 3:00 - Reaction to the Decision 5:30 - The Key Takeaways from the Decision 10:30 - The Effect on Future and Ongoing FCA Litigation 18:45 - Advice for Potential FCA Defendants  Show notes are available at the Pub K Group website.   

The threat of the U.S. government defaulting on its debt is full of uncertainties for federal contractors. These risks include subcontracting disputes and even going out of business if the government deprioritizes payments to government contractors. In this episode of Bona Fide Needs, Pub K's Bill Olver sits down with two attorneys from Arnold & Porter's Government Contract and National Security Group - Keith Feigenbaum and Bryan Williamson - who address the statutory framework of the debt ceiling, the implications of a breach, the likely effect on federal contractors, and many practical recommendations for how contractors can prepare for a breach and respond to any adverse actions.   0:30 - Headlines 8:00 - Introduction Keith Feigenbaum and Bryan R. Williamson 9:15 - What is the Debt Ceiling?  12:15 - What are the implications of a breach?  16:50 - How will a breach impact federal contractors?  21:00 - What can contractors do to prepare or seek remedy?  31:00 - Acknowledgements Show notes are available at the Pub K Group website. 

On April 18, the Supreme Court heard oral arguments in Schutte v. SuperValu and Proctor v. Safeway, two qui tam cases raising significant questions about the knowledge standard under the False Claims Act.  Arnold & Porter partners Tirzah Lollar, Craig Margolis, and Christian Sheehan attended the arguments in-person and then provided their real-time insights into the Justices' line of questioning, the parties' responses, and what this may mean for relators and defense counsel.  In this episode of Bona Fide Needs, we present their discussion, with additional contextual comments by Tirzah Lollar.  0:30 - Tirzah's introduction 6:00 - Tirzah, Craig, and Christian's webinar discussion 52:30 - Acknowledgements For our show notes, visit us at the Pub K Group website.   

In this episode of Bona Fide Needs, Pub K Managing Editor Bill Olver is joined by Arnold & Porter False Claims Act Practice partners Tirzah Lollar and Christian Sheehan for a discussion about the Department of Justice's reported FCA recoveries for fiscal year 2022, as well as two FCA-related cases before the Supreme Court. 0:25 - Mike's introduction 1:50 - Bill's conversation with Tirzah and Christian 3:45 - FCA recoveries for FY2022 10:30 - Supreme Court consideration of the scienter standard  18:20 - Supreme Court consideration of the government's authority to dismiss qui tam complaints 26:30 - Mike's comments For our show notes, visit us at the Pub K Group website.     

In this episode of Bona Fide Needs, Arnold & Porter Partner Mike McGill speaks with Arnold & Porter Senior Associate Amanda Sherwood on recent cases addressing contractor relief for the impacts of the COVID-19 pandemic and unanticipated inflation and Mike summarizes the targeted relief authorized through section 822 of the  National Defense Authorization Act for FY 2023.  0:00 - Introduction 1:20 - Mike and Amanda's conversation 35:20 - Mike's final comments on the FY2023 NDAA   Show notes available online at the Pub K Group website.

In this episode of Bona Fide Needs, Arnold & Porter Partner Mike McGill and PilieroMazza Partner Nichole Atallah preview the Labor & Employment panel from Pub K's upcoming 2023 Annual Review. From January 9 - 12, three dozen top government contracting practitioners will break down the most important and intriguing developments affecting federal contractors and their counsel. Government officials, private sector attorneys, and in-house experts will examine 2022's key litigation, enforcement activity, agency regulatory activity, and developments from Capitol Hill and the White House. Pub K's Annual Review is free to the public. To register, visit Pub K online at https://pubkgroup.com/govcon-annual-review-2023/.

In this episode of Bona Fide Needs, Arnold & Porter Partners Mike McGill and Craig Holman  preview the Bid Protest panel from Pub K's upcoming 2023 Annual Review. From January 9 - 12, three dozen top government contracting practitioners will break down the most important and intriguing developments affecting federal contractors and their counsel. Government officials, private sector attorneys, and in-house experts will examine 2022's key litigation, enforcement activity, agency regulatory activity, and developments from Capitol Hill and the White House. Pub K's Annual Review is free to the public. To register, visit Pub K online at https://pubkgroup.com/govcon-annual-review-2023/.

In this first proper episode of Bona Fide Needs, Arnold & Porter Partner Mike McGill and PubKGroup Managing Editor Bill Olver cover a broad range of recent legal developments affecting government contractors. Our primary feature this month is Mike’s in-depth discussion with Andre Geverola, head of Arnold & Porter's cartel investigations practice and former Director of Litigation for the Justice Department’s Antitrust Division, about DOJ's scrutiny of wage fixing and no-poach agreements in the defense industry. In our second feature, Bill speaks with Arnold & Porter partner Craig Margolis for a timely overview of the Department of Justice's False Claims Act recoveries for fiscal year 2021.  Mike and Bill round out the episode with updates on the cases, regulations, and other developments relevant to federal contractors.   Show notes 0:30 - Introduction and Overview 4:00 - Federal Procurement Headlines  8:00 - FY2021 False Claims Act Recoveries 15:30 - DOJ Enforcement of No-Poach Agreements in Defense Industry 47:00 - Practical Wrap Up  56:00 - Credits and copyright    A&P FCA Qui Notes Blog A&P Article “President Biden Orders a $15.00 Minimum Wage for Some Federal Contractor Employees Effective Next Year” A&P Article “The Squeaky Wheel Gets Dismissed: GAO Reinforces the Need for Contractor Vigilance When Raising Pre-Award Issues With the Agency” Executive Order on Use of Project Labor Agreements For Federal Construction Projects President Biden Signs National Security Memorandum to Improve the Cybersecurity of National Security, Department of Defense, and Intelligence Community Systems Memorandum on Improving the Cybersecurity of National Security, Department of Defense, and Intelligence Community Systems Lockheed Martin Walks Away from $4.4B Aerojet Rocketdyne Acquisition Protester Can’t Prove Its Entitled to All Costs Incurred Due to Pandemic-Caused Delay; Nues Inc. v. Department of Health and Human Services, CBCA 7165 DOJ Announces $5.6 Billion in FCA Recoveries for FY2021 Department of Defense: State of Competition within the Defense Industrial Base COFC Renounces GAO Rule, Declines to Find Offeror Has Duty to Notify Agency of Changes in Personnel Communications with Agency Constituted an Agency Protest, Which Set the 10-Day Clock Running for a GAO Protest OFCCP Contractor Portal Government Transition from DUNS Number to New Unique Entity Identifier Will Occur on April 4, 2022    

Every year Congress must pass the National Defense Authorization Act (NDAA). The NDAA adjusts DoD budget priorities based on what's happening around the world and current military needs. Thus, the NDAA is a guide to the issues that will impact defense contracting in the coming year. In this episode of Bona Fide Needs, Marne Marotta, Adrienne Jackson, and Sara Linder of Arnold & Porter discuss the status of the 2025 NDAA bills pending in the House and Senate, provisions in the bills that could impact government contractors, and some notable amendments. They also predict where things are headed with each bill over the next few months.