The Contractor's Perspective

Voyager card fuel program is unmanageable, says USPS OIG

Posted in Postal Service Contracting

COVER of USPS OIG report Voyager capping Sept 30 2014Calling the Voyager fuel card program unmanageable and uneconomic, the USPS Office of Inspector General recommends that the Postal Service use another method to manage fuel under its HCR contracts. In its advisory report dated September 30, 2014, the OIG concludes that the Voyager fuel card program has cost more money that it saved and discourages fuel efficiency. The Postal Service spent $5.1 billion for 1.6 billion gallons of fuel for Highway Contract Route (HCR) contracts under the program over the last nine years.

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Six contracting policy changes in the FY 2015 National Defense Authorization Act

Posted in Compliance, Construction Contracting, Cybersecurity, Schedule Contracts, Trade Secrets
Army General Martin E. Dempsey, Chairman of the Joints Chief of Staff; Senator Carl Levin, Chairman of the Senate Armed Services Committee; Representative Buck McKeon, Chairman of the House Armed Services Committee; and Secretary of Defense Chuck Hagel stand during the Armed Forces Farewell Tribute to Levin and McKeon on Joint Base Myer-Henderson Hall, Virginia, September 12, 2014.

DoD photo by U.S. Air Force Master Sgt. Adrian Cadiz

The Senate passed the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 [pdf] on Friday, December 12, 2015. President Obama is expected to sign the bill into law. The $585 billion bill authorizes the Pentagon’s activities in FY 2015. It includes $521.3 billion in base defense spending and another $64 billion in war funding. Here is a summary of the procurement reform initiatives that will be relevant to contractors in the upcoming year:

  1. Cyber incident reporting for operationally critical contractors. Section 1632 of the 2015 NDAA directs the Secretary of Defense to designate and notify “operationally critical contractors,” a term narrowly defined in the bill. After notification, designated contractors will be required to report to the Department of Defense each cyber incident with respect to any network or information system of such contractor. Reports must include: an assessment of the effect on the contractor’s ability to meet the Department’s contractual requirements; the technique used in the cyber incident; any sample of malicious software obtained; and a summary of information compromised by the incident. Despite the disclosure requirement, section 1632 provides for protection of contractor trade secrets and confidential commercial or financial information. It also limits the dissemination of information obtained to relevant entities and agencies.
  2. Enhanced authority for non-DOD Chief Information Officers. Section 831 of the NDAA increases the role of Chief Information Officers of agencies other than the Department of Defense. It provides that an agency may not enter into a contract for information technology unless the contract has first been reviewed and approved by the agency’s Chief Information Officer. The head of each covered agency must ensure that its Chief Information Officer has a significant role in all annual and multi-year planning, budgeting, and reporting related to information technology. The bill requires the Director of OMB and the Chief Information Officers of appropriate agencies to increase the efficiency and effectiveness of information technology investments and to develop opportunities to consolidate the acquisition and management of information technology services. The Chief Information Officer of each covered agency is directed to inventory agency data centers and develop a multi-year strategy for consolidation and optimization of those data centers inventoried.
  3. DOD CIO positions consolidated. Section 901 of the 2015 NDAA incorporates a DOD proposal to combine the positions of Chief Information Officer and Deputy Chief Management Officer into the position of Under Secretary of Defense for Business Management and Information. The new Under Secretary will oversee business operations, personnel, and IT projects and will be appointed by the President with the advice and consent of the Senate. This change will not take place until the next administration. Continue Reading

Cybersecurity guidelines for contractors in NIST Special Publication 800-171

Posted in Compliance, Cybersecurity

DRAFT NIST Publication 800-171The need for strong security measures to protect sensitive government data from hackers has never been more intense. In November alone, the federal government suffered at least four breaches of government information systems, including cyber-attacks on the U.S. Postal Service, the State Department, NOAA, and the White House. What is not discussed in the news reports is the fact that the much of the burden of securing government data falls on government contractors.

The federal government has struggled to adopt a unified and mandatory approach to contractor data security. Each agency has taken a separate approach to adopting cybersecurity requirements, for example DoD recently adopted a new set of regulations governing unclassified “controlled technical information.” Many contractors find the current requirements confusing and at times conflicting between agencies.

In an effort to address this problem, the Department of Commerce National Institute of Standards and Technology has released a draft version of NIST Special Publication 800-171, Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations [pdf].

The new NIST guidance is directed at contractors that already have information technology infrastructure and associated security policies and practices in place. The final version of Special Publication 800-171 will attempt to synthesize the federal government’s recommendations to ensure the confidentiality of sensitive federal information stored on contractor computers and information systems. Special Publication 800-171 is part of a three-part plan that will ultimately make these recommendations mandatory. The other parts include a rule proposed by the National Archives and Records Administration—currently under review by OMB—and the eventual adoption of a FAR clause that will apply the requirements of the NARA rule and Special Publication 800-171 to all federal contracts.

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How a 14-year-old case escaped the False Claims Act’s 6-year statute of limitations

Posted in False Claims Act, Litigation, Small Business

Six years from accrual. Three years from discovery. And never longer than ten years.

Senior Airman Marie Zieman, 403rd Civil Engineers Squadron emergency management specialist, guides Tech. Sgt. Emile Babin through a series of forklift operations.

U.S. Air Force photo/Tech. Sgt. Ryan Labadens

Despite the statutory language imposing time limits on the government’s pursuit of False Claims Act violations, courts continue to bend over backwards to give the government more time to assert them. The decision in United States ex rel. Sansbury v. LB&B Associates, Inc., No. 07-251 (D.D.C. July 16, 2014) [pdf] allowed the government a total of 14 years from the date of the first alleged false claim.

We hope that the Supreme Court will restore some sanity to the enforcement of the FCA limitations period in its decision in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, No. 12-1497. We discuss the issues in that case in an earlier post. But we still have to wait a while for that. Argument in the Carter case is scheduled for January 13, 2015.

The FCA limitations and tolling framework

Sansbury is an unusual case that is based on the intricacies of the FCA’s limitations and relation-back provisions. Before getting into the facts of the case and the holding, here’s a breakdown of those provisions.

According to the text of the False Claims Act (31 U.S.C. § 3731(b)), the limitations period applicable to civil FCA actions is the later of:  (1) 6 years after the date on which the violation is committed; or (2) 3 years after the date when the material facts giving rise to the cause of action are known or reasonably should have been known by the U.S. official responsible for acting on FCA violations (i.e. DOJ official), but in no event more than 10 years after the date on which the violation is committed.

But these may not be real deadlines. Even without the tolling that that may be available under the Wartime Suspension of Limitations Act, the government may get several additional years to make a decision on whether to intervene in a whistleblower’s qui tam suit. If the whistleblower’s original action is timely under § 3731(b), the government’s intervention complaint “relates back” to the date of the initial complaint. Even if the government takes three years to file its intervention complaint, it is deemed to have been filed on the date of the original suit. The relation back provision appears in 31 U.S.C. § 3731(c).

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U.S. Postal Service to boost capital spending in FY 2015

Posted in Postal Service Contracting

USPS Integrated Financial Plan FY 2015Capital spending is making a comeback at the Postal Service from dangerously low levels. The Postal Service plans on tripling its capital spending commitments in Fiscal Year 2015. Under its recently issued Integrated Financial Plan for FY 2015, the Postal Service projects $2.2 billion in new capital commitments. This contrasts sharply with capital spending over the last five years, which was annually below $1 billion.

Capital spending commitments will be concentrated on previously deferred investment needed for aged and end-of-life equipment. Planned spending includes $800 million for mail processing equipment; $500 million for vehicles; $500 million for customer service and support equipment; and $400 million for facilities.

Total capital spending in FY 2014 was just $700 million, an anemic level for an entity that had $66 billion in total annual expenses. Postal Service capital spending has been limited to cash on hand as the agency long ago reached its statutory $15 billion debt limit. The agency also owes the U.S. Treasury $22 billion for unpaid retiree health care pre-funding mandates.

But the outlook for revenues in FY 2015 allows room from increased capital spending. Based on a projected 13 percent increase in package volume, and a moderate rise in Standard Mail volume, the Postal Service projects a $1.8 billion revenue increase from last year, with annual total revenue of $69.6 billion.

The Postal Service also expects to spend slightly more on transportation, supplies and services, and rents and utilities. Spending in these areas will increase from $13.3 billion to $14.9 billion. Transportation is projected to increase by $200 million to $6.6 billion as savings from transportation cost-reduction initiatives are offset by costs associated with network consolidations and increased volume.

More cases, more settlements at the ASBCA in FY 2014

Posted in Claims and Disputes, Litigation

The docket of the Armed Services Board of Contract Appeals continued its steady growth last year, according to the Board’s FY 2014 statistical report. In fact, the 1,066 appeals pending on the date of the report is slightly more than twice the number pending on the same date in 2009.

ASBCA's Docket (2009-2014)

The Board closed more cases this year than in past years. It closed 535 appeals in 2014. But the number of new appeals increased even more, meaning that the number of pending appeals also increased.

The Board has implemented several measures to accommodate the demand for its services. Contractors with small claims ($50,000 or less) may elect expedited or accelerated appeals procedures under Board Rule 12. The Board also offers Alternative Dispute Resolution services, including nonbinding mediation and binding summary procedures before an Administrative Law Judge. The Board’s ADR program has proven valuable and productive. According to the Board’s April 2014 ADR summary, parties agreed to use ADR in 82 appeals in FY 2013. All of them were successfully resolved.

Of the 535 appeals closed in FY 2014, the Board sustained only 60 in whole or in part. This does not mean that contractors prevail only 11 percent of the time. Forty nine of the 535 appeals closed in FY 2014 were denied. Including the appeals resolved through ADR and traditional two-party settlement agreements, the Board continues to be an effective forum for the resolution of contract disputes.

Related entries:

Daubert motions at the ASBCA (Oct. 28, 2014)

Contractor appeals of negative past performance evaluations (Dec. 13, 2013)

“Accrual” of government claims under the Contract Disputes Act (Dec. 2, 2013)

 

Daubert motions at the ASBCA

Posted in Claims and Disputes, Litigation

Cases at the Armed Services Board of Contract Appeals often require scientific or other technical evidence that is best explained by an expert witness. Though it conducts no jury trials and the rules do not expressly require it, the board generally considers itself the gatekeeper of junk scientific evidence. The board regularly considers motions challenging the admissibility of expert testimony. It also regularly grants them.

In the appropriate case, a pretrial motion to exclude an expert’s testimony can be an effective tool. Here we address the most common grounds for challenges to expert testimony at the ASBCA.

Expert testimony must be reliable.

The basic test for the admissibility of expert testimony in federal courts is set forth in Rule 702 of the Federal Rules of Evidence, which codifies the Supreme Court’s decisions in Daubert v. Merell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Under Rule 702, expert testimony must not only be helpful, it must be based on sufficient facts or data, and be the product of reliable principles and methods.

Parties in litigation at the ASBCA are not exempt from the reliability requirement. The board frequently refers to the standards set forth in Rule 702 as a prerequisite to the consideration of expert testimony. Even without a jury, the board will exclude expert testimony that the board finds unreliable. Board rules are generally more flexible than the federal rules when it comes to the admissibility of evidence, but an expert’s opinion must be sufficiently reliable for the board to consider it. Universal Yacht Services, Inc., ASBCA No. 53951, 04-2 BCA ¶ 32648 (May 24, 2004) [pdf].

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Amendments to the Federal Rules make discovery better, faster, cheaper

Posted in Claims and Disputes, Litigation

Photo Credit:  NASAContractors know that discovery is the most time-consuming and expensive part of litigation. Until now, the Federal Rules of Civil Procedure have done little to address the problem. Parties that preserve too much data are burdened with the cost of collecting and reviewing it. Parties that preserve too little risk not having access to key evidence or being penalized for spoliation.

While we’re not sure the problem can be fixed with a few changes to the procedural rules, reducing discovery costs appears to be a key goal of the recently-proposed amendments to the Federal Rules of Civil Procedure [pdf]. The revised rules were passed by the Judicial Conference of the United States in September 2014 and are now awaiting approval by the Supreme Court. Assuming they are approved, the amendments will become effective on December 1, 2015.

The proposed amendments have three primary objectives: (1) improve early and active judicial case management; (2) enhance the importance of proportionality in the discovery process; and (3) encourage greater cooperation among litigants. The amendments would also resolve an apparent circuit split over when sanctions may be imposed for failing to preserve electronically stored information. The changes aimed at accomplishing these objectives appear in the proposed amendments to Rules 1, 4, 16, 26, and 37.

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What every Postal Service contractor should know

Posted in Postal Service Contracting

Cover page - Nov 2014 postal seminarEvery Postal Service contractor should know the answer to certain fundamental questions: What procurement rules apply to the Postal Service and how do they differ from other agencies? What contract provisions are most likely to cause problems during performance? How do I identify and respond to changes and changed conditions? What recourse do I have when disputes arise?

That’s why our firm is presenting a full-day seminar on “Postal Service Contracting: What Every Contractor Should Know,” at the Westin Tysons Corner hotel on Thursday, November 6, 2014.

We start with the basics

We start with a primer on the creation, structure, and current management of the Postal Service. We provide vital background and statistical information that all postal contractors should know. We explore the pressing issues confronting the Postal Service today, its plans for the future, and how these issues will impact contractors. We conclude the session by setting out the 23 most important “culture pointers” encountered in the unique Postal Service contracting environment.

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Eight ways to cut the cost of ediscovery

Posted in Claims and Disputes, Compliance, Contract Administration, Litigation

Controlling legal spend is a frequent and important topic of discussion, especially among in-house counsel and their litigation teams. Much of the discussion focuses on the problem of soaring discovery costs driven by the proliferation of electronic data. As an eDiscovery attorney, I employ early case assessment strategies and tools, technology-assisted review, and even low-cost outside staff attorneys to try and curtail the cost of discovery. In the end, the effectiveness of these cost-reduction alternatives hinges on whether clients have done their part to reduce the volume of data upstream.

Beyond implementing a formal records retention plan, there are a number of fairly simple steps that companies can take to help reduce litigation costs. Items 1-5 help reduce the volume of data that needs to be collected and reviewed. Items 6-8 will help ensure that your litigation budget is not exhausted on spoliation or sanctions motions.

1.   When implementing an email archive, be mindful of how it will impact litigation costs.

An email archive is not a cure to your litigation woes. Storing every company email that was sent or received in an email archive may make preservation easy, but it may also be contributing to your soaring discovery costs. Despite claims to the contrary, most archives have poor search and export features. It is also very difficult to pull out only responsive email from an archive.  Instead, you end up overspending on attorney review of irrelevant data or producing mounds of irrelevant data.

One way to control this issue is to tailor the archive for your own business and legal needs from the beginning. Do you really need every employee’s email messages for the last 10 years? Very few industries have regulatory requirements that require such broad retention. Even those that do usually only apply to a small subset of employees. Confirm any applicable regulatory requirements and consider your own business and legal needs. Consider creating email groups with different retention cycles.

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