Government Contracts Legal Round-Up | 2022 Issue 19 – Government Contracts, Procurement & PPP

Welcome to Jenner & Block’s Government Contracts Legal
Round-Up, a biweekly update on important government contracts
developments. This update offers brief summaries of key
developments for government contracts legal, compliance,
contracting, and business executives. Please contact any of the
professionals at the bottom of the update for further information
on any of these topics.

Enforcement News

Deputy Attorney General Announces Revisions to DOJ’s
Corporate Criminal Enforcement Policies and Practices (September
15, 2022)

On September 15, 2022, Deputy Attorney General (DAG) Lisa Monaco
issued a memorandum and delivered a speech, announcing several
revisions to the Department of Justice’s (DOJ)’s corporate
criminal enforcement policies and practices. The new revisions
reflect input from DOJ’s Corporate Crime Advisory Group, which
DOJ convened in late 2021 to review and recommend improvements to
DOJ’s approach to prosecuting corporate crimes, and the imprint
of DOJ’s compliance-minded leadership. The new revisions, which
will apply to current and future corporate defendants, include:

• Emphasizing that a corporation’s cooperation with DOJ must
  be timely and not strategically delayed if the corporate seeks
  maximum cooperation credit;




• Clarifying how prosecutors should evaluate a company’s
  record of prior misconduct when deciding how to resolve a criminal
  investigation;




• Requiring the development of additional written guidance to
  govern the Department’s overarching approach to voluntary
  self-disclosure, the selection of independent compliance monitors,
  and policies governing mobile devices and ephemeral messaging
  platforms; and




• Heightened attention to DOJ’s evaluation of the
  effectiveness of corporate compliance programs, including detailed
  guidance on how prosecutors should assess employee compensation
  systems and the impact of compliance programs on corporate
  culture.

Overall, the new revisions reinforce DOJ’s commitment to the
principles announced in DAG Monaco’s October 28, 2021
memorandum, while clarifying areas of potential confusion and
promoting consistency across the Department on corporate crime
issues. Taken together, they reflect the consistent DOJ trends of
broadcasting aggressiveness against corporate crime; developing
more guidance for the exercise of prosecutorial discretion; and
centralizing departmental attention, if not control, over corporate
prosecutions.

To read more about the memo
here.

Leonard Francis Update (September 21, 2022)

For those following the Leonard Francis (a.k.a. “Fat
Leonard”) saga, he has been apprehended on his way to Russia.
U.S. fugitive known as ‘Fat Leonard’
apprehended in Venezuela after weeks on the run
(nbcnews.com)

Supply Chain and Software Developments

NIST Certification for Federal Software Providers (September
14, 2022)

• The Office of Management and Budget issued a memo titled Enhancing the Security of the
  Software Supply Chain through Secure Software Development
  Practices, M-22-18 (Sept. 14, 2022).




• The key takeaway is OMB’s directive that: “Federal
  agencies must only use software provided by software producers who
  can attest to complying with the Government-specified secure
  software development practices, as described in the NIST
  Guidance.”




• The operative term “NIST Guidance” refers to two
  publications from the National Institute of Standards and
  Technology (NIST): (1) the Secure Software Development Framework
  (SSDF), SP 800-213 and (2) the Software Supply Chain Security
  Guidance.




• Agencies will be required to obtain a self-attestation of
  NIST-compliance from software producers before using their
  software. In order to use software from a producer that cannot make
  the complete attestation, agencies will need to obtain a Plan of
  Action & Milestones documenting the practices to which the
  producer cannot attest and those in place to mitigate any
  risks.

This is the latest in a long series of steps the federal
government is taking to harmonize and improve agencies’
cybersecurity and software licensing practices. The requirement for
affirmative certifications from software providers is sure to
create all manner of compliance and implementation challenges over
the next several years. Stay tuned.

Protest Cases

STG International,
Inc., B-420759.4; B-420759.8 (August 24, 2022) (published
September 15, 2022)

• GAO denied a protest alleging that the agency unreasonably
  excluded the offeror, an incumbent contractor, from the competitive
  range.




• The protester raised multiple challenges to the evaluation
  judgments by the Department of Homeland Security, Immigrations and
  Customs Enforcement (ICE), in connection with a procurement for
  medical staffing support services for detainees at ICE Health
  Service Corps clinic sites.




• For example, the protester argued that the agency unreasonably
  evaluated its response to a hypothetical scenario which would be
  evaluated on, among other things, the extent to which it
  demonstrated creative and innovative techniques.




• GAO concluded that the firm did not effectively respond to the
  scenario promptly, and found unobjectionable ICE’s conclusion
  that the firm did not articulate “new and innovative
  techniques,” instead pointing only to existing processes.

GAO will not disturb an agency’s evaluation of proposals
where reasonable and consistent with the solicitation’s
evaluation criteria, and protesters must demonstrate that protest
grounds do not constitute mere disagreement with the agency’s
evaluation. In cases such as this one where an agency evaluates a
solution under inherently subjective factors (innovation and
creativity), that burden is particularly acute. Here, the
protester’s proposal had not identified its techniques as
“new or innovative,” but even if it had, the protester
would have had to demonstrate that ICE unreasonably determined that
these new techniques were not innovative or creative. Ultimately,
offerors are responsible for submitting a well-written proposal
with adequately detailed information that allows meaningful review
by an agency.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.