Foreign states and their agencies engage in a variety of construction projects in the United States, all of which are subject to the Foreign Sovereign Immunities Act (“FSA”).[1] This article explains some of the key aspects of the FSA that foreign governments and contractors should consider when engaging in those projects.

Foreign States and Their Agencies

Foreign states are treated differently from their agencies for certain aspects of the FSA. In deciding whether an entity is the foreign state itself or an agency of it, courts typically evaluate the entity’s primary purpose. If governmental, the entity is considered the foreign state itself, and if commercial, the entity is considered an agency. One line of cases holds if the entity is an integral part of a foreign state’s political structure, it is considered the foreign state itself.
Continue Reading

President Trump continues to push forward with his “Buy American, Hire American” initiative with the issuance of his third Executive Order No. 13881 (the “Order”) on July 15, 2019, entitled “Maximizing Use of American-Made Goods, Products, and Materials.” This Order attempts to strengthen the standards that federal agencies must follow under the Buy American Act (“BAA”) by raising the threshold for domestic purchasing requirements.
Continue Reading

Congress enacted the Buy American Act (“BAA”) during the Great Depression, in order to protect American industry from foreign competition on federal procurement contracts. While the BAA is simplistic in its policy goal of promoting domestic purchasing, government contractors and subcontractors are often faced with complex and confusing rules for compliance.
Continue Reading

On April 25 and 26, James Newland, partner in Seyfarth’s Construction Practice Group, will be presenting the “Changes and Claims in Government Construction Contracting” course at the Federal Publications Seminar at the Executive Conference and Training Center in Sterling, Virginia. His presentation will focus on owner changes and contractor claims in the federal government contracting

The typical government contract contains a laundry list of standard Federal Acquisition Regulation (FAR) or Defense Federal Regulation Acquisition Supplement (DFARS) clauses that outline the requirements for the construction or services to be provided. These clauses are either expressly stated, i.e. written out in full length in the contract, or incorporated by reference to a particular provision which the contractor must research for the specific language. But contractors beware: not all contracts are what they seem. Since 1963, courts have held that certain clauses are so integral to public procurements that they are deemed incorporated by operation of law, even if they are omitted from the contract.
Continue Reading

Potential Outcomes and Implications for the False Claims Act

On March 19, 2019, Seyfarth’s Anthony LaPlaca and Teddie Arnold witnessed oral argument at the U.S. Supreme Court in a government contracts case that has major implications for future enforcement of the federal False Claims Act (FCA).[1] In Cochise Consultancy, the Court is asked to interpret the FCA’s statutes of limitations, which govern the time frame in which the government may initiate a civil false claim suit against a contractor.[2] While the Court will likely consider the case for several months before it issues any decision, the questions posed at oral argument seem to hint at how it will ultimately decide the issue.
Continue Reading