In addition to our panels, we also had the good fortune to secure a phenomenal luncheon speaker, Craig Whitlock, an investigative reporter with The Washington Post. In a sold-out “fireside chat” interview with David Robbins (Jenner & Block LLP), Craig spoke about his recent books touching on issues directly relevant to PCL members: Fat Leonard: How One Man Bribed, Bilked, and Seduced the U.S. Navy and The Afghanistan Papers: A Secret History of the War. It was a fascinating, albeit sometimes disheartening, discussion of two recent incidents that reveal challenges and flaws in serving our country’s national security interests, especially as those national security interests intersect with public contracting. Craig also graciously brought books to sign after his talk and easily sold them all—a testament to the attendees’ enthusiasm for the fireside chat.
The Fall Forum also featured the Section’s first-ever Armed Services Reception, honoring the uniformed and civilian government contracting professionals who work every day to support the common mission of keeping our nation safe. We were honored to have the George Mason University Color Guard post the colors during the playing of the National Anthem and to receive welcome remarks from Mr. Dean Berman, senior executive service (SES), assistant general counsel (Research, Development & Acquisition), and chief acquisition attorney for the Department of the Navy. We would like to extend a tremendous “thank you” to Brooke Didier, assistant counsel, F-35 Lightning II Joint Program Office (JPO), for her invaluable assistance in facilitating Mr. Berman’s participation. Of course, while we honored our civilian and uniformed government partners at this reception, we also continued the Section’s long tradition of providing a forum for those in private practice, government service, and in-house positions to network and enjoy the collegiality for which the Section is well known.
From beginning to end, the Forum was a smashing success. Attendance topped more than 300 registrants—the largest ever for a fall conference—and the location in the Washington, DC, area was a significant factor in our success. Many attendees provided feedback complimenting the diverse panel topics, the fun “no-host dinners” that fostered connection between Section members, and the convenient location.
Here is a summary of what we talked about at the 2024 Fall Forum.
There Is No “I” in Team: Practical Strategies for Drafting and Negotiating Teaming Agreements and Subcontracts
Moderator Amba Datta (Steptoe LLP), joined by panelists Kara Daniels (Arnold & Porter LLP), Shamir Patel (Guidehouse), and Andrew Sakallaris (Logistics Management Institute), provided a deep dive into the complexities of teaming agreements. The session began by focusing on enforceability and how ambiguity in teaming agreements could lead to disputes. The panel emphasized the importance of clear language when defining the scope and workshare of each party to reduce the risk of such disputes. The panel also addressed potential antitrust concerns that could arise from teaming agreements, suggesting strategies for mitigating those concerns through careful drafting. The session then transitioned to a discussion of critical subcontracting considerations, such as distinguishing between mandatory and nonmandatory flow-down provisions; negotiating key terms such as termination clauses and limitations of liability; and implementing robust confidentiality agreements to protect sensitive information exchanged between the parties. The panel highlighted the importance of anticipating potential disputes and proactively addressing them through well-defined dispute resolution mechanisms in the teaming agreement and the eventual subcontract. Attendees gained practical guidance on crafting effective teaming agreements and subcontracts fostering successful collaborations, while simultaneously minimizing legal risks.
The US Supreme Court: Recent Decisions and Upcoming Cases Important to Government Contractors
The second panel focused on two landmark cases from the US Supreme Court’s 2023–2024 term and two cases to be decided in the 2024–2025 term, as well as the potential implications these cases could have on the government contracting landscape. The panel included moderator Will Havemann (Hogan Lovells) and panelists Mel Bostwick (Orrick), Lisa Mathewson (Mathewson Law LLC), Patricia McCarthy (US Department of Justice), and Tejinder Singh (Sparacino PLLC). Ms.Mathewson and Mr. Singh graciously joined the panel even though both are counsel of record on two of the cases that were scheduled for argument on the Court’s November and December 2024 calendars.
First, the panel discussed the far-reaching consequences of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned the long-standing doctrine of Chevron deference. The Loper Bright decision significantly shifts the balance of power between federal agencies and the courts, impacting how courts review agency interpretations of ambiguous statutes. Under Loper Bright, courts are no longer obligated to defer to an agency’s reasonable interpretation of an ambiguous statute, but the court must instead independently determine the best interpretation of the law. In the second case from last term, Corner Post, Inc. v. Board of Governors of the Federal Reserve System,the Supreme Court held that the statute of limitations governing challenges under the Administrative Procedure Act (APA) begins to run when a plaintiff is harmed—not when the rule takes effect. Under Corner Post, plaintiffs are now empowered to challenge rules finalized long ago if the rule recently injured them within the APA’s six-year statute of limitations. With Chevron deference gone and a more open-ended APA statute of limitations, the panel discussed whether challenges to agency regulations, interpretations, and enforcement actions could become more frequent, and potentially more successful, or whether government contracting will see less of an impact.
The two pending cases for the current term that the panel discussed were Wisconsin Bell, Inc. v. United States, ex rel. Todd Heathand Kousisis v. United States. Wisconsin Bell involves how the False Claims Act (FCA) applies to the E-rate program, an important federal program for providing affordable telecommunications services to schools and libraries. While E-rate is a federal program, it is funded by private parties that pay annual fees to a nonfederal entity called the Universal Service Administrative Company (USAC) that administers the fund. The case presents the question whether a request for reimbursement from USAC involves federal funds for purposes of the FCA, such that an allegedly knowingly false request for reimbursement under the E-rate program could be a false claim. The panel’s discussion of the Kousisis case presented an opportunity to discuss the application of federal criminal wire fraud liability in the context of government contracts. The panel explained that Kousisis raises important questions about whether violating contractual (or even pre-contractual) promises could constitute federal criminal wire fraud, even if those promises do not directly impact the alleged victim’s financial interests.
Allowability of Legal Costs: Understanding the Rules and Their Practical Applications
The second day of the 2024 Fall Forum began with a comprehensive session on the allowability of legal costs. Erin Rankin (Crowell & Moring LLP) moderated a panel featuring Tom Burke (SAIC), Adrianne Goins (Defense Contract Management Agency), and Mark Meagher (Meagher GC Law, LLC). This panel began by providing a practical understanding of FAR Part 31 cost principles, which govern the allowability of costs incurred by government contractors. The panel dove into an examination of essential caselaw, focusing on landmark decisions that have shaped the interpretation and application of cost allowability principles. The panel then explored real-world scenarios, highlighting common situations that raise cost allowability concerns. The discussion centered on situations such as Requests for Equitable Adjustments (REAs), FCA settlements, and the allowability of legal fees incurred in responding to government audits and investigations. The panelists emphasized the importance of meticulous documentation, ensuring the reasonableness of costs, and aligning all charges with government regulations. Attendees gained valuable insights on how contractors can ensure the allowability of their legal costs and navigate potential disputes with contracting officers and auditors.
Avoid Getting Stuck in the Revolving Door: Understanding, Preventing, and Mitigating Conflicts of Interest When Employees Move out of and into Government Service
The next session continued the 2024 Fall Forum’s theme of exploring issues directly relevant to government and in-house counsel. Led by Jennifer Zucker (Greenberg Traurig LLP) and including Joe Moreno (SAP NS2), The Honorable Matthew Solomson (US Court of Federal Claims), Donna Snyder (Lockheed Martin), and Owen Whitehurst (Lockheed Martin), the panel discussed the ethical complexities and potential legal pitfalls arising from the movement of personnel between government and contractor roles. The panelists provided real-world examples of situations where conflicts of interest arise, such as when a former government employee joins a contractor and is involved in work related to their prior government responsibilities. The panel emphasized the importance of being proactive, including thorough vetting of new hires, having a robust ethics training program that educates employees on conflict-of-interest rules and regulations, and implementing internal controls to identify and mitigate potential conflicts. The panel also explored practical strategies for managing identified conflicts, including information firewalls to restrict access to sensitive information, recusals from specific projects or decision-making processes, and limitations on communications with former government colleagues. And the panel also discussed recent bid protest case law regarding “revolving door” conflicts of interest.
Cross-Border Considerations and Compliance Challenges for Government Contractors
Our Day 2 post-luncheon session, moderated by Adelicia Cliffe (Crowell & Moring LLP), included insights from panelists Liza Craig (Goodwin Procter LLP), Matthew Kitzman (Defense Counterintelligence and Security Agency), and Robert Monjay (formerly of Intel), who provided valuable insights into the complex world of international contracting, with an emphasis on the evolving landscape of supply chain security and sourcing restrictions, export control regulations, and sanctions programs. The discussion highlighted the significant impact of recent geopolitical developments, such as the ongoing war in Ukraine, on the US defense industry and the broader government contracting community.
The panel discussed the growing complexities of navigating the interplay between US export controls and sanctions programs, the International Traffic in Arms Regulations (ITAR), and the Export Administration Regulations (EAR). The panel also covered the recent developments under AUKUS, a trilateral security pact between Australia, the United Kingdom, and the United States. This pact focuses on enhancing defense capabilities and technology sharing among the three nations, particularly in areas like nuclear-powered submarines and advanced technologies, and is leading to modification of export control regulations, as well as creating new compliance challenges for government contractors involved in international defense cooperation.
The panel also examined the issue of foreign ownership, control, or influence (FOCI). FOCI mitigation is a process used by the US government to assess and address potential national security risks associated with foreign involvement in companies that handle sensitive information or technologies, including classified information. The discussion covered recent updates to the FOCI rules and the impact of these updates on government contractors operating across borders, including requirements for disclosure and mitigation plans to address identified risks.
Round Table Discussion with In-House General Counsel
We ended the Fall Forum Conference with a high-profile round table discussion between and among general counsels from government contractors of all sizes. Led by moderator Andrea Vavonese (Peraton), the general counsels represented large contractors—Stuart Young (Amentum) and Josh Petty (Booz Allen Hamilton Inc.)—and small contractors—Virginia Robinson (Tlingit Haida Tribal Business Corp.) and Lance Lerman (ThunderCat Technology). The discussion was wide-ranging, starting with the panelists’ career paths and a “typical day in the life” of an in-house attorney, while also discussing the qualities of a successful in-house counsel, such as constant curiosity. The panel explored topics that keep general counsels up at night, including workforce safety and geopolitical impacts on business. They also offered candid advice on how outside counsel can best serve their in-house counterparts (spoiler alert/reminder: long legal memos are not helpful!). Attendees highlighted this panel as one that was insightful, unconventional, and worth repeating.
Thank You and Coming Soon!
The 2024 Fall Forum Director and co-chairs thank everyone who attended our first-ever “DC area” Fall Forum and hope that attendees left armed with practical tips from the panels, made new connections with colleagues during networking events, and walked away with renewed appreciation for the community of procurement law practitioners, all of whom are striving to meet the country’s greatest challenges.
Our next event, the PCL Section Federal Procurement Institute (FPI), will be held from April 2–5, 2025, and is returning to Annapolis, Maryland. Please note that this year, the FPI conference will be at a new venue—the Westin Hotel—so please do not hit the “snooze button” when registering! As in the recent past, the Section’s Council Meeting will be held on the afternoon of Wednesday, April 2, during the conference. We look forward to seeing you there.
