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

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

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

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

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

The 2020 edition of The Legal 500 United States recommends Seyfarth Shaw’s Construction group as one of the best in the country. Nationally, our Construction practice earned Top Tier, and our Government Contracts practice earned Tier 3.

Based on feedback from corporate counsel, Seyfarth partner Bennett Greenberg was ranked in the editorial’s “Hall of Fame,”

Force Majeure, Commercial Impracticability, and Frustration of Purpose

The outbreak of COVID-19 has been one of the most disruptive events to the global economy in recent memory. Businesses across every sector of the economy are scrambling to determine the legal repercussions of government travel restrictions, labor shortages, supply chain interruptions, financing impacts, and market price

While the global economy grinds to a halt over spread of the novel coronavirus (COVID-19) and people disband amidst calls for “social distancing,” these are uncertain times to say the least. Stay safe out there, we will get through this. While the health and welfare of our loved ones and the general public becomes the primary focus, federal contractors and subcontractors face a secondary and yet critical concern—how to address the impacts from COVID-19, which include labor disruptions, supply chain shortages, facility closures, remote work environments and government-mandated restrictions that make it difficult, if not impossible, to move programs and projects forward.

A recent decision by the Civilian Board of Contract Appeals (“CBCA”) related to an epidemic makes clear that whether or not a contractor will prevail in recovering costs associated with COVID-19 is going to be dependent on the specific contract provisions the parties have negotiated in their contracts.
Continue Reading Civilian Board of Contract Appeals Decision Provides Guidance to Contractors Seeking to Recover Additional Costs Due to COVID-19

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The impact of COVID-19, the ensuing delays and changes in the work, protecting the contractor’s cash flow, and avoiding a default termination are now top of mind for every construction contractor. This article reviews delay principles, changes in the work, default and convenience terminations, illness of key personnel, stop work orders, and other considerations related to claims and defenses arising from COVID-19. Contractors must be alert to the practical aspects of entitlement and recovery under the clauses that come into play.
Continue Reading COVID-19’s Impact on the Government Construction Contractor’s Performance: Recognizing and Implementing the Appropriate Claims and Defenses

With the exponential spread of COVID-19, owners, contractors, and design professionals are recognizing the substantial impact this pandemic will have on the construction industry. Several states issued shelter-in-place orders, resulting in the suspension of some construction work.[1] In some states, this has resulted in work stoppages on some of our nation’s largest infrastructure projects. The financial impact of these work stoppages will be significant. As a result, parties to construction agreements have looked to their force majeure clauses for guidance on how these issues should be addressed.
Continue Reading Coronavirus Pandemic: My Construction Agreement Has a Force Majeure Clause, So Now What?