The Department of Justice has recently implemented a procedure to ensure that all new qui tam complaints are reviewed contemporaneously by the Civil Division and the Criminal Division as soon as cases are filed. If you’re a government contractor, this new policy needs your attention now. While civil penalties have been the primary enforcement mechanism for whistle blower, or other False Claims Act, cases, the fact that experienced prosecutors in DOJ’s Fraud Section are now working on a parallel track to conduct criminal investigations takes contract compliance to a whole new level. It’s important to keep several things in mind and have a full discussion, with counsel, to determine what they mean for you.

1. Criminal actions, like civil, can be brought against both companies and individuals,


2. Although the standard for criminal conduct is higher than for civil violations, never underestimate ambitious career prosecutors trying to get ahead,


3. The most frequent source of FCA suits are from whistleblowers – either disgruntled employees or competitors. Do not pass go, or collect $200 before your firm discusses this new program with your contract counsel.


Government Accountability Office (GAO) stated last week that protests increased 5% in FY’14, no surprise in a tight government market. While the “sustain” rate, the rate at which GAO agrees with the protestor and recommends an agency take corrective action, decreased to 13%, the “effective” rate remained the same. This is due in large part to agencies taking some type of corrective action before GAO issues a final decision. Contracting officials are increasingly taking corrective action after a protest is filed, often making the original protest moot, and offering the protestor some type of potential relief.


The latest example of this is with the NASA SEWP program where NASA withdrew all SEWP V awards and went back to examine offers for the purpose of potentially taking some sort of corrective action. There’s some good news in this for contractors who file protests. If an agency isn’t sure of its due diligence approach, especially for larger, multiple award IDIQ contracts, an initially unsuccessful offeror may get a second look. At the same time, however, agencies are increasingly taking that second look before initial awards are made, as was the case last year with GSA’s OASIS program. Despite several attempts, there were no successful post-award protests there. Still, protesting when there is a valid reason to do so makes sense for contractors. While the sustained rate may have gone down, the effective rate shows that companies can sometimes get what they want short of that remedy.


Allen Federal wishes all of our readers a Happy Thanksgiving. Try to get by without the Week Ahead next week, though we know it will be difficult. There will be no Allen Federal float in the Macy’s Parade this year, but, contrary to public opinion, it is not due to a hot air problem. Remember, too, that despite what you hear on the radio, it is Thanksgiving. Be sure to be thankful for whatever it is that makes you smile.


GSA officials are actively working to reorganize the Integrated Technology Service, the organization inside the Federal Acquisition Service that manages all IT contracts, including Alliant and the IT 70, as well as telecomm contracts like NextGen and NS2020.   The reorganization is intended to bring greater centralization to the varied ITS operations with the goal of ensuring better operational continuity and service to the customer.  Telecommunications contracts are among the first to be transitioned, but the centralization plan may also have implications for other programs such as Alliant and OASIS.  Line level ITS officials currently discuss this topic frequently with their industry partners and it is clear that the proposed centralization is at least somewhat of a distraction. The move is thought to be driven by FAS Commissioner Tom Sharpe who wants to better marshal all of FAS’ portfolios to reduce redundancy, standardize solutions, and have more effective oversight of contract pricing.  The most recent centralization foray, however, is certainly not the first attempt of its kind in GSA.  Long-time contractors may remember the “Summit” previous Federal Technology Service head Sandy Bates called in the late 1990’s.  Intended to better centralize and streamline operations, the summit, and its related follow-ons, ended up having a minimal impact on regional operations.  It is too early to tell how effective this latest attempt may be, but contractors may find their ITS partners with extra work on their plates related to the re-org.  Stay tuned.


Federal leaders continue to make cyber-security a top priority – one that transcends traditional IT work and extends well into the world of professional services, office equipment, and other areas.  Federal leaders believe that cybersecurity measures work best when they’re “baked in” to industry solutions.  Many devices, such as tablets and smart phones, however, don’t have sufficient cyber protections today.  This poses challenges for the popularity of programs such as BYOD.  While companies, particularly those offering the latest commercial solutions, can help, federal buying rules aren’t making it very easy.  There’s a wide gulf, too, between those in government who are asking for industry help and those who would actually buy such solutions.  Contractors are reluctant to offer some solutions because contracting officials and IG’s demand 100% full-proof solutions.  This is virtually impossible today, given the increased sophistication of attacks.  One federal official stated that incursions have become so targeted that they use the term “spear phishing” to denote such activity.  Contractors can offer good solutions and most want to help the government keep their systems secure.  Taking unreasonable risk with their own business, however, is bridge too far for many.  The acquisition community needs to work quickly with those on the cyber front lines to get a solution so that procurement does not jeopardize national security.