Since the dawn of the historic COVID-19 relief packages, which have doled out approximately $2.6 trillion to date (with more to be spent), the federal government has made no secret of the fact that it intends to ferret out and prosecute any wrongdoing involving those funds. In addition to misappropriation of relief funds, the government has also gone after those attempting to capitalize on the COVID-19 pandemic by defrauding consumers and the government alike. A number of violators have already been uncovered and prosecuted. And the government continues to ramp up its efforts and stay true to its word. Continue Reading More Enforcement is on the Way: The COVID-19 Fraud Enforcement Task Force

While most federal contractors are eminently familiar with the False Claims Act (“FCA”)—government’s most potent weapons for prosecuting false claims—the anti-fraud provision of the Contract Disputes Act (“CDA”) does not receive nearly as much attention in the headlines. CDA anti-fraud cases are rarer than FCA cases for a couple reasons. First, the government’s remedies under the CDA pale in comparison to the robust deterrents available under the FCA, which include five-figure fines (between $11,000 and $22,000 per claim) and potential treble damages.[1] Second, the government is limited to enforcing FCA fraud claims in the federal court system, which complicates matters when the government seeks to assert FCA counterclaims as leverage in cases pending in the Civilian Board of Contract Appeals or the Armed Services Board of Contract Appeals.[2]  Thus, case law addressing CDA anti-fraud claims is sparse; indeed the US Court of Appeals for the Federal Circuit has never issued a published opinion discussing such claims. Last month, however, emerged an anti-fraud decision in the US Court of Federal Claims (“COFC”) that may eventually find itself worthy of higher-level scrutiny.

Continue Reading US Court of Federal Claims Clarifies the Statute of Limitations for CDA Anti-Fraud Claims

Chuck Wall, partner in Seyfarth’s Construction group, will co-host and moderate the Maryland Transportation Builders and Materials Association (“MTBMA”) webinar “Public-Private Partnerships: Demystifying the P3 Delivery Model” on April 20, 2021, at 1 p.m. Eastern.

As the need for dramatic improvements to transportation infrastructure continues to increase, available state and local resources are becoming even more scarce. Maryland has joined many other states in implementing public-private partnerships (P3s) as a means to help bridge this funding gap. Many owners are viewing P3s as a useful tool to help deliver projects faster and more efficiently by introducing private financing along with customized risk allocations affecting design/construction and long-term operation and maintenance. This program will cover project procurement, financing alternatives, and implications for the construction, engineering and materials industries.

Click here for more information and to register. For non-MTBMA members, please use promo code: ‘p3_101’ to receive 100% off the registration cost. The promo code is requested on the last step of the registration page. For questions, please reach out to Jahna Barbar at jbarbar@seyfarth.com.

Executive Order 14005

Not even one week into the Biden Administration’s tenure, Buy American rules are yet again taking center stage as a fundamental policy objective. On January 25, 2021, President Biden issued Executive Order 14005 entitled “Ensuring the Future is Made in All of America by All of America’s Workers,” which sets forth the new Administration’s policy of utilizing the federal procurement process to maximize the use of goods, products, and materials that are US-origin. Executive Order 14005 takes aim at overhauling “Made in America Laws,” which it defines broadly as inclusive of all statutes, regulations, rules, and Executive Orders relating to federal financial assistance awards or federal procurement—known interchangeably as Buy America or Buy American rules—which provide a preference for purchase of domestic goods and materials that are US-origin. But unlike Executive Order 13788 issued by the Trump Administration making changes to Buy America rules, President Biden’s Executive Order 14005 does not make any immediate changes to those rules. Rather, it calls for a review of existing laws and implementing rules. That review, however, and what proposed changes in existing laws comes out of that review, could be significant. Continue Reading Biden Administration Issues Executive Order 14005 Aimed at Strengthening Made in America Laws

Earlier this week, the Third Circuit held in Delaware River Joint Toll Bridge Commission v. Secretary Pennsylvania Department of Labor and Industry that Pennsylvania ceded its authority to enforce its building code and safety regulations against the operator of a transportation facility, the Delaware River Joint Toll Bridge Commission (“Commission”). The Commission is a bi-state entity created by an interstate compact between Pennsylvania and New Jersey (“Compact”) and approved by Congress under the Constitution’s Compact Clause.

Continue Reading Third Circuit Interprets Interstate Transportation-Related Compact as a Surrender of Compacting State’s Authority to Enforce its Building Regulations

On October 20, 2020, Seyfarth partner Sara Beiro Farabow returned to lecture (virtually this time) before graduate engineering students at the Polytechnic University of Milan, the #1 ranked engineering university in Italy. This session of the masters course, “Contract, Claim and Delay Management in Construction Works,” provided a comparative legal analysis of U.S. and international contracts and various arbitral institutions in the context of large-scale engineering and development projects.

Seyfarth partner James Newland co-authored “Preparing and Presenting Loss of Labor Productivity Claims: Analysis of the Methodologies with Two Exemplars”, published in the Summer 2020 edition of the ABA’s The Construction Lawyer.

It is beyond doubt that losses of labor productivity exist in the construction industry. When a party seeks to recover damages for loss of labor productivity, proving that such losses occur is not the challenge. The challenge is linking cause and effect sufficient for the trier of fact to understand the claim and make the appropriate determination, whether that trier of fact is a panel of a board of contract appeals, a judge on the Court of Federal Claims, a federal or state court judge, or an arbitrator.

Read the full article here.

Seyfarth Government Contracts partners Adam Lasky and Donald Featherstun are presenting programs at Navigating Federal Government Contracts Northwest 2020 on October 21 and 22. The conference—which is hosted by Associated General Contractors of Washington, Washington State Procurement Technical Assistance Center, Pacific Northwest Defense Coalition, and Oles Morrison Rinker & Baker LLP—is two days of informative virtual seminars that aim to help attendees learn to effectively navigate doing business with the federal government. Speakers at the conference will cover topics relevant to government contractors across all industries.

Donald Featherstun is presenting “Anatomy of a Dispute on a Government Contract” with Hon. Carol Park Conroy (Ret.), JAMS Arbitrator/Mediator and Former Judge on the Armed Services Board of Contract Appeals, Washington DC, on October 21. Adam Lasky is presenting “Keys to Drafting Successful Teaming Agreements & Subcontracts for Federal Projects … and Pitfalls to Avoid” on October 22.

Other topics include:

  • Introduction to the Brand New 8(a) and SBA Mentor-Protégé Program Final Rules, and Other Major Changes to SBA’s Government Contracting Programs
  • Compensation for COVID Delays and Impacts
  • Supply Chains Under Attack
  • Federal Contracting Year in Review

See the full agenda here and register for the seminar here.

Seyfarth partner David Blake authored “COVID-19 Language for New Construction Contracts,” published by GlobeSt.com on August 24, 2020. In the article, David addresses custom COVID-19 language for new construction contracts. The article is based on two construction contracts for which David successfully drafted and negotiated custom COVID-19 language. One is a private project and the other is a public project.

CARES Act

The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act (P.L. 116-136) was passed by Congress and signed into law by President Trump on March 27, 2020. The CARES Act provides over $2 trillion of economic relief in order to protect the American people from the public health and economic impacts of COVID-19. Throughout its more than 300 pages, the CARES Act implements many initiatives targeted at various industries and economic sectors that are designed to stimulate cash flow and provide security for those at-risk. Continue Reading Money for Nothing—Except Potential False Claims Act Liability