A renewal for a Top Secret security clearance became career threatening for an Ifrah client’s CFO when the renewal application was denied due to foreign influences concerns. As the CFO of a defense contractor whose continued employment was a condition for the company’s line of credit, maintaining a security clearance was critical for both the CFO and the company. After the Statement of Reasons was issued, the CFO submitted his own letter challenging the decision but it was denied. The CFO then retained Ifrah Law who, on behalf of the client, drafted a written response and successfully mitigated the security concerns. This resulted in the withdrawal of the Statement of Reason and the ultimate renewal of the CFO’s security clearance.
Ifrah’s defense of its clients, Torres Advanced Enterprise Solutions LLC (“TAES”) and Scott Torres, who were charged in a retaliatory discharge case, not only turned out to be a victory for the defendants, but it was also a resounding victory for employers and the court system. The ruling, made in the United States District Court for the District of Columbia, set important precedent regarding federal pre-emption in worker’s compensation issues overseas and retaliatory discharge charges.
Two former employees of Ifrah’s clients claimed that they were improperly discharged in retaliation for filing a workers’ compensation claim under the Defense Base Act (“DBA”) and Longshore and Harbor Workers Compensation Act. They were working for TAES at Forward Operating Base Shield in Iraq when they were discharged.
Ifrah argued that the DBA provided the exclusive remedy for the plaintiffs’ causes of action and otherwise preempted their case. In a 26-page opinion, the judge dismissed all four counts of the First-Amended Complaint, agreeing with Ifrah’s argument. She further held that plaintiffs’ remaining common-law causes of action, including breach of contract, were preempted under the DBA. Specifically, she noted in her opinion that federal courts across the country have found that the DBA expressly preempts other remedies state law affords to similarly-situated plaintiffs. Accordingly, the doctrine of conflict preemption barred plaintiffs’ common-law claims and mandated their dismissal.
Despite the lack of clear precedent on the issue, the opinion clearly establishes as the law of Washington, D.C. that employees subject to a federal workers’ compensation plan must exhaust their administrative remedies first before filing an action in court. The decision will result in the saving of time and expenses related to litigating complex retaliatory discharge claims that can otherwise be resolved more efficiently in the administrative context.
(Sickle et al v. TorresAdvanced Enterprise Solutions, LLC et al., Case No. 1:11-cv-02224 (U.S. District Court, District of Columbia))
Our client, a long-time government contractor, rightly turned to Ifrah Law when it suspected a competitor had violated FAR regulations. Our client submitted a proposal in response to a government RFP to provide seminars and library services to detainees at the U.S. Naval Station Guantanamo Bay. The RFP stated that this would be a “lowest price technically available” (LPTA) contract.
Our client’s proposal was unsuccessful, and they moved to challenge the award. Our critical review of the record revealed that the successful bidder may have utilized unbalanced pricing. We successfully argued that our client’s pricing was balanced and potentially fairer to the government – a difficult argument to make in LPTA solicitations because of the discretion granted to contracting officers. Our challenge was successful and following the court’s order granting a preliminary injunction, the government was forced to take corrective action.
(Torres AES v. United States, 1:13-cv-00898 (Damich, J.))
Having spent over 30 years in the environmental and renewable energy industry, our client was dismayed when he received a Notice of Suspension and Proposed Debarment (the Notice) from the EPA. Facing the possibility of a three-year debarment, our client knew that such a black mark would mean not only the end of his company, but also the end of his career.
Ifrah Law set to work on contesting the Notice and addressing the mitigating and aggravating factors. While our written response was strong, the bold and clearly reasoned advocacy we provided during the oral argument had the biggest impact on the case. Ifrah argued that this was a one-time oversight during an alleged emergency situation, for which our client was truly remorseful. But we took the additional step of arguing that that our client never should have been prosecuted in the first place, and that he was the victim of an overzealous prosecutor.
After the record closed, we were told that a settlement of two years was feasible, but we refused to settle. When the decision was rendered, our client faced no debarment whatsoever, allowing him to resume his government contracting business immediately. The EPA legal counsel involved in this matter told us that the advocating we did on our client’s behalf was one of the best she has ever seen.
A government contractor was awarded a 100% small-business set-aside IDIQ contract, but its success was soon jeopardized. Shortly after contract award, a competitor filed a size protest that challenged the contract award and alleged the government contractor was not a small business because of its affiliation with a larger company. Because of the potentially crippling loss of the entire contract award, the government contractor quickly turned to the expertise and advocacy of Ifrah Law to represent the company before the SBA.
We successfully defended the company against the size protest and the SBA issued a determination that our client qualified as a small business. The outcome of the matter ensured that the contract award remained in place.
How long should your past haunt you? A client of Ifrah Law faced that question when it was confronted with a potentially crippling debarment from a federal agency.
The government contractor had participated in a conspiracy to bribe a public official for a contract award. However, it was the first to cooperate in the resulting federal investigation, which led to a successful conviction. Fast forward four years, and the Department of Defense moved to debar our client. The DoD had already placed the contractor on the Excluded Parties List System (EPLS) but wanted to go a step further. Debarment would have been devastating for our client’s business, resulting in an almost complete loss of revenue.
Presenting the client’s strong performance record since the bribery incident (we even got the prosecutor from the contract bribery case to write a letter to the court on our client’s behalf), Ifrah Lawyers successfully represented the contractor in the debarment proceeding. We obtained a decision of no debarment period at all.
A client contractor participated in a procurement competition over a multi-award contract with the Department of the Army that was valued at almost half a billion dollars. After submitting a proposal, our client (along with other bidders) was excluded from the competition because of a deficiency in a proposed labor rate. The other excluded parties protested to the Government Accountability Office, and the Army permitted five of the protesting parties to rejoin the bidding process.
With just a week left before the final proposal revisions were due, our client asked us for help. We filed a U.S. Court of Federal Claims protest asking to reverse the exclusion based on irregularities in the procurement process. We also asked for an injunction to prevent the bidding process from ending.
As a result of our filing and subsequent negotiations with the Department of Justice, our client was permitted to rejoin the bidding and to submit a revised bid.
(Platinum Business Corporation, et al. v. United States, 1:12-cv-00001, Court of Federal Claims, Bid Protest (2012))
Public schools and libraries in the U.S. can save a lot of money on Internet service by applying for the Schools and Libraries Program, a federal subsidy better known as E-Rate.
E-Rate funding, capped yearly at $3.9 billion, helps eligible institutions cover costs of Internet service. Participants can save anywhere from twenty to ninety percent of their Internet expenses—the precise amount being dictated by the economic standing of both the participating institution and the school district where it is located.
E-Rate and three other programs are part of the Universal Service Fund (USF), a system of subsidies born out of the Telecommunications Act of 1996 as a way to ensure affordable telecom rates across the country. Although the Federal Communications Commission (FCC) oversees the USF, the fund is managed by a nonprofit corporation called the Universal Service Administrative Company (USAC).
Detailed information on how to apply for E-Rate can be found in the Schools and Libraries Program overview. Basically it works as a bidding process. An applicant fills out FCC Form 470, requesting specific services, and submits it to the USAC. The USAC then issues an RFP for telecom providers who want to bid for the requested services. After 28 days, the applicant can study the bids. When it selects one, it requests E-Rate funding by filing FCC Form 471 within a deadline set by the FCC (for FY2016 it is May 26).
The discount rate is generally determined by the size of the population, in the applicant’s school district, that qualifies for the National School Lunch Program. The applicant must also file Form 486, listing services for which funds are requested and ensuring compliance with the Children’s Internet Protection Act.
There are limits to what E-Rate can cover. The applicant is solely responsible for end-user equipment, like hardware and software, and also for any non-discounted portions of Internet services.
While it is a great opportunity to save money, E-Rate isn’t a free-for-all. To discourage abuse and misuse of the program, the FCC requires applicants to comply with a series of rules, notably:
- Compliance with state and local law. It’s not enough to follow the FCC standards only.
- Applicants cannot seek discounts for services not requested. In other words, services listed on Form 471 must match (or not exceed) services requested on Form 470.
- Fair, competitive bidding. Applicants are responsible for ensuring an open, fair, and competitive bidding process to select the most cost-effective provider.
- Document retention. Applicants must save all competing bids for services to demonstrate they selected the most cost-effective bid, with price being the primary consideration. Records should be kept for at least ten years after the last date of service delivered.
- CIPA compliance. Applicants must confirm compliance with the Children’s Internet Protection Act, which requires schools and libraries that receive federal funding to employ Internet filters that protect children from harmful content.
In spite of these rules, the wealth of funds in the E-Rate program can attract abuse. In response, the FCC created the USF Strike Force in 2014 and tasked it with combatting waste, fraud, and abuse of the USF programs. Federal agents have shown that they are serious about investigating alleged abuses. One widely publicized case in Ramapo, NY, recently led to several raids. We will look at that case and others like it in upcoming posts.
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Many small business government contractors may have to rethink the way they do business. The Small Business Administration issued a proposed rule at the end of December to implement provisions of the National Defense Authorization Act of 2013. The NDAA, which was signed into law in January 2013, requires several significant modifications to the rules for small business concerns, including changes to the Limitations on Subcontracting Rule (13 C.F.R. 125.6).
The proposed rule suggests a number of changes that would impact small businesses qualifying under one or more of the size or socioeconomic categories for set-aside contracts. These changes would (1) require companies to change how they determine compliance under §125.6, (2) require them to certify compliance in the bidding process, and (3) impose steep monetary penalties for delinquencies.
The Limitations on Subcontracting rule limits the extent to which prime contractors may subcontract obligations to outside entities, say to large companies that would not themselves qualify for a government set-aside. Under the current rule, a cost-based metric controls what prime contractors on set-aside contracts can subcontract to other entities: the prime must incur a certain percentage of the contract costs. For instance, for services contracts, a prime contractor must “perform at least 50 percent of the cost of the contract incurred for personnel with its own employees.” Section 125.6 currently provides different cost-base ratios based upon the type of contract (e.g., services, supplies, construction) and the type of set-aside (e.g., 8(a), SDVOB, HUBZone).
The proposed rule, if implemented, would alter how limitations are calculated, using an income-based, as opposed to a cost-based, metric. Under the proposed rule, prime contractors on set-aside contracts would be required to keep in-house a certain percentage of income—including passive income—paid by the government. For services and supply contracts, no more than fifty percent of the amount paid under the contract could be passed on to subcontractors; for construction no more than eighty-five percent; and for specialty trade, no more than seventy-five percent. (note that these are the same ratios used under the current cost-based metric, but now apply to the income-based metric). There no longer would be a distinction in ratios based upon type of set-aside, however.
An important exception to the rule would exist for “similarly situated entities.” Maintaining the philosophy behind the set-aside program, the proposed rule would allow prime contractors to contract out to companies who also qualify under their set-aside category without that relationship counting towards the income limit. In other words, the entities would be treated the same for purposes of the Limitations on Subcontracting rule. For instance, an SDVOB could subcontract out a services contract to another SDVOB and that contract relationship would not count towards the fifty percent income limit. However, the subcontractor must qualify under the same set-aside category as the prime in order to take advantage of this exception.
Another exception is that the rule would not apply to contracts valued under $150,000.
Closing a former loophole, the revised §125.6 would count all levels of subcontractor relationship, not just to the first prime-sub relationship. So companies could not get around the subcontract limitation through subcontracting out under the subcontractor.
In order to satisfy the new Limitations on Subcontracting rule, companies would need to address the rule in their contract bids for set-aside contracts. They would be required to certify that they can satisfy the rule. They would further be required to identify any similarly situated entities they planned to subcontract with and to what extent (percentage) they planned to subcontract with them. Any post-award changes would need to be presented to the contracting officer.
Unlike in the past, the proposed rule would institute steep penalties for non-compliance with the Limitations on Subcontracting rule. Companies found violating the rule would be subject to fines “the greater of either $500,000 or the dollar amount spent in excess of the permitted levels for subcontracting.”
The SBA’s proposed changes may seem staggering to small businesses that have carefully defined their business relationships to remain compliant under the current cost-based regime. But the changes could ultimately help to ensure the viability of the SBA’s set-aside programs. When small and disadvantaged prime contractors subcontract the bulk of their work to large businesses, they call into question the purpose of the set-aside structure. Those interested in presenting comments on this proposed change may submit their comments through regulations.gov by February 27, 2015.
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When it comes to a conviction, or even an arrest, the collateral consequences that are sometimes overlooked by client and counsel can be extremely damaging, especially when dealing with government agencies and programs.
One such set of consequences is unique to contractors who do business with federal or state governments. Because even a plea to a criminal conviction represents a person’s affirmative statement of the underlying facts, that can lead to a proceeding to suspend or debar (that is, prohibit) the contractor from federal or state business. A government agency may issue a notice of suspension or debarment based on the criminal conviction alone, if the statute provides for such a basis of debarment. Moreover, in some circumstances, a government agency may issue a notice of suspension or debarment based on the underlying conduct (which the plea or conviction affirms as true) that poses a risk to the integrity of government contractors. Thus, even if a government contractor facing serious charges and a lengthy trial enters a plea to a less serious charge, that plea may cause the debarment of the government contractor and possibly deal a fatal blow to its business based on the conduct on which it was based.
Another example of an unforeseen consequence is when a person applies for one of the various government programs that are a “privilege” and not a right. The U.S. Customs and Border Protection (CBP) has implemented Trusted Traveler Programs, such as the Global Entry program, which allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. There is no right to participate in that program; rather, it is a privilege granted to individuals upon acceptance by the CBP. There is an application process for entry into the program, and, the CBP explicitly warns that applicants may not qualify if they have been convicted of any criminal offense or have pending criminal charges or outstanding warrants. Notably, as with similar statutes or prohibitions, there is no end date for when the CBP will stop considering the criminal conviction. Therefore, the criminal conviction will likely act as a lifetime bar to gaining acceptance into this program and into similar types of programs.
Collateral consequences are increasingly becoming an important area of law due to the fact that the total number of collateral consequences has increased tremendously in recent years. This requires a broad understanding of many areas, which is contrary to the trend in law practice of specialization in niche practice areas. Unfortunately, counsel are often completely unaware of the potential collateral consequences in practice areas outside their scope of practice. With funding provided by a DOJ grant and other sources, the ABA has developed an interactive tool called the National Inventory of the Collateral Consequences of Conviction (available at www.abacollateralconsequences.org), which provides a database of the sanctions and restrictions in each state. This is a useful tool for both counsel and client in understanding the full gamut of collateral consequences resulting from a criminal conviction.
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Career Education Corporation, like a host of other for-profit education companies, has found itself spinning on the courthouse revolving door. The latest legal challenge for CEC: a False Claims Act suit filed in federal court in New Jersey on May 16. The lawsuit alleges that CEC defrauded the federal government by (1) falsifying job placement statistics to exaggerate the number of graduates working in their fields of study, (2) misrepresenting accreditation status of some of its programs to remain eligible for federal funding, (3) admitting students who did not have high school diplomas or GEDs, could not speak English, or were mentally handicapped, and (4) paying bonuses to admissions staff based on enrollment numbers. Many of these allegations are familiar to CEC as well as others in the industry. Unfortunately CEC – like many other for-profit education companies – just can’t seem to free itself from the yoke of enforcement agencies and plaintiffs’ attorneys.
Last August, CEC entered a settlement agreement with the New York Attorney General’s office following an investigation into allegations of inflated job placement rates and allegations of inadequate disclosures regarding accreditation status. That agreement cost CEC $10.25 million and imposed significant reporting requirements.
The allegation of inappropriate incentive compensation for college recruiters is a popular basis for lawsuits against the for-profit education industry. In May, the Department of Justice filed a False Claims Act suit against Stevens-Henager College, Inc. for allegedly illegally compensating recruiters. These suits follow similar False Claims Act suits filed against the University of Phoenix (which settled in 2009 for a whopping $67.5 million, plus $11 million in attorneys’ fees) and Oakland City University (which settled in 2007 for $5.3 million) for their incentive compensation structures. There is also a pending False Claims Act case against Education Management Corporation with claims that largely mirror those faced by CEC.
Unfortunately for CEC and its fellow for-profit educators, settling with one entity does not necessarily mean freedom from future suits by other regulators or supposed whistleblowers. The more common scenario follows the camel under the tent: once an investigation is initiated – and publicly announced – follow-on actions ensue. The host of False Claims Act cases against the industry is a perfect example.
Part of the problem is the nature of False Claims Act cases. These suits, which are brought on behalf of the federal government by private plaintiffs (known as “relators”), are intended to help root out fraud against the government. Whistleblower relators are given incentive to file claims as they can receive significant compensation should the lawsuit succeed (or settle). For instance, the whistleblowers in the U. Phoenix settlement received $19 million in compensation; the whistleblower in the Oakland City U. settlement received $1.4 million.
The concept of False Claims Act cases seems laudable – the government cannot possibly keep track of all fraudulent claims it pays out to government contractors and other recipients of federal funds; having private actors with personal knowledge come forward to help address the problem should save the government significant sums. But the host of False Claims Act cases against the for-profit education industry defendants has produced little new or damnable information. When False Claims Act cases are brought after the news of alleged problems breaks, or after an investigation is launched, the benefit to the government is substantially diminished. The lawsuits become more about economic opportunity for enterprising litigators and relators.
The U.S. Supreme Court recently held that Sarbanes–Oxley extends whistleblower protection, not just to employees of public companies, but to employees of private contractors and subcontractors that serve public companies. In a 6-3 decision, the Court rejected the First Circuit’s narrow construction of the statute in favor of the Labor Department’s more expansive interpretation. Now more than ever, affected contractors and subcontractors need to ensure they have robust policies in place for addressing whistleblower complaints.
Congress passed the Sarbanes–Oxley Act in 2002, the year after Enron’s collapse. The Act was intended to protect investors in public companies and restore trust in financial markets. It achieved these goals in part by providing whistleblower protection: 18 U.S.C. § 1514A makes it unlawful for employers to retaliate against employees who report suspected fraud. The provision certainly protects employees of publicly traded companies. It was less clear whether § 1514A protects employees of private contractors that service public companies. The plaintiffs in Lawson v. FMR, LLC, claimed it did.
Jackie Lawson and Jonathan Lang were employees of private companies that serviced the Fidelity family of mutual funds. As is often the case with mutual funds, the Fidelity funds were subject to SEC reporting requirements, but had no employees. Private companies contracted with the funds to provide accounting and investment advisory services. In this case, the private companies were Fidelity-related entities referred to collectively as FMR. Lawson was a 14-year veteran and Senior Director of Finance for her employer, Fidelity Brokerage Services. She alleged that she was constructively discharged after raising concerns about cost accounting methods for the funds. Zang was an 8-year veteran of Fidelity Management & Research Co. He alleged that he was fired for raising concerns about misstatements in a draft SEC registration statement related to the funds. Both plaintiffs sued for retaliation under § 1514A.
FMR responded by asking the district court to dismiss the claims on grounds that § 1514A protects employees of public companies, not employees of privately held companies. The trial judge rejected FMR’s argument, but the First Circuit Court of Appeals reversed. Months later, the Labor Department’s Administrative Review Board issued a decision in another case, making clear that ARB agreed with the trial judge. Last year, the Supreme Court agreed to consider the question.
On March 4, the Court issued its opinion that § 1514A shelters employees of private contractors, just as it shelters employees of public companies served by those contractors. Speaking for the majority, Justice Ginsburg explained that the Court’s broad construction finds support in the statute’s text and broader context. As relevant to the plaintiffs’ claims, § 1514A provides, “‘No public company . . . , or any officer, employee, contractor, subcontractor, or agent of such company” may take adverse action “against an employee . . . because of [whistleblowing or other protected activity].’” Boiled down to its essence, the phrase in question states that “no . . . contractor . . . may discharge . . . an employee.” In ordinary usage, the phrase means that no contractor (of a public company) may retaliate against its own employees. After all, those are the people contractors have power to retaliate against. According to the Court, if Congress had intended to limit whistleblower protections to employees of publicly traded companies, as FMR argued, Congress would have said “no contractor may discharge an employee of a public company.” The statute doesn’t say that because Congress was not attempting to remedy a nonexistent problem. Enron did not collapse because its private contractors retaliated against Enron employees who tried to report the company’s fraud.
The Lawson Court explained further that its interpretation flows logically from the statute’s purpose to prevent another Enron debacle. Often, the first-hand witnesses of corporate fraud are employees of private companies that service a public company—law firms, accounting firms, and business consulting firms, for example. Without adequate protections against retaliation, contractor employees who come across fraud in their work for public companies will be less likely to report misconduct. The Court’s point was particularly relevant with respect to the Fidelity funds. Like most mutual funds, the Fidelity funds had no employees. A narrow reading of § 1514A would insulate a $14 million industry from retaliation claims. Congress could not have intended that result.
Given the Court’s decision in Lawson v. FMR, LLC, privately held companies that service public companies should consider how best to deal with whistleblower complaints. At a minimum, robust whistleblower policies will (i) safeguard whistleblower anonymity to the extent possible; (ii) encourage whistleblowers to exercise discretion without discouraging them from reporting misconduct; (iii) address the preservation of evidence relating to putative fraud; and (iv) establish procedures for the conduct of internal investigations into suspected fraud.
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