Winter 2020

    Volume 55 Issue 1  

    National Security

    Cost or Pricing Data Requirements: Emerging Developments & Risk Areas

    by Alexander O. Canizares

    One of the recurring challenges facing companies that do business with the government is having to turn over cost or pricing data to the government during contract negotiations. Under the Truthful Cost or Pricing Data Act, commonly referred to by its former name, the Truth in Negotiations Act or TINA, the government may, in certain circumstances, obtain certified (or uncertified) cost or pricing data from contractors as a means of verifying that prices are reasonable. Enacted in 1962 in response to reports of widespread overcharging by defense contractors, TINA was intended to protect the taxpayer by giving contracting officers more information when negotiating prices with offerors. But cost or pricing data submissions may result in administrative burdens and delays in the acquisition system that can frustrate other policy goals.

    In this Issue

    Government

    Counting Employees for HUBZone Purposes: The Clear Line of Fractured Standard

    by John Mattox

    Certification in SBA’s1 HUBZone Program requires firms, among other things, to meet two employee- based conditions. So, to ensure compliance, a firm must first grasp how SBA counts “employees.” In addition, an applicant firm must also realize that, in some cases, SBA will count the employees of its affiliates (for size purposes under SBA’s regulations)2 as if they were the applicant firm’s own employees. Indeed, SBA, using the totality of the circumstances, will aggregate a firm’s employees with its affiliate’s employees unless a clear line of fracture separates the two.

    Federal Government

    Equitable Adjustments for Volunteered Contractor Performance: Confusion about the Burden of Proof

    by Steven W. Feldman

    Where the government, in defending a claim for an equitable adjustment, argues the contractor acted as a volunteer, I always thought the contractor simply had the burden of proof to show otherwise. As it turns out, this issue is more nuanced and there are conflicting approaches within the Federal Circuit and in its lower tribunals. To date, no court or board has remarked upon the split of authority or suggested a resolution of the precedents. This article will cover the following topics: the meaning of volunteered contractor effort; relation of the Anti-Deficiency Act; the strict and lenient approaches to volunteered contractor performance; “burden of proof” and “rebuttable presumption” explained; and the flaws in the lenient approach.

    Federal Government

    Imputation of False Claims Act Liability to Prime Contractors

    by Sandeep N. Nandivada & David R. Allman

    The specter of the civil False Claims Act (FCA) is, by now, well known to companies doing business with the federal government. The FCA creates liability for any entity that “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval,” or that “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.”1 In Fiscal Year 2018, the U.S. Department of Justice recovered over $2.8 billion in FCA matters, including over $107 million from the defense industry.2

    Topics of Interest

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