All posts by brgexpert

DOJ Announces Formal Guidance in Justice Manual for Considering Disclosure and Cooperation by Contractors on False Claims Act Matters

On May 7, 2019, the US Department of Justice (DOJ) announced new guidelines for awarding credit to contractors or individuals who voluntarily disclose False Claims Act (FCA)−related misconduct, actively cooperate with the DOJ on FCA investigations, or take effective remedial measures to mitigate or rectify FCA-related misconduct. The release represents the first formally published guidance from the DOJ on the guidelines it will consider in awarding cooperation credit. Assistant Attorney General Jody Hunt stated, “False Claims Act defendants may merit a more favorable resolution by providing meaningful assistance to the Department of Justice – from voluntary disclosure, which is the most valuable form of cooperation, to various other efforts, including the sharing of information gleaned from an internal investigation and taking remedial steps through new or improved compliance programs.”[1]

Though the guidelines do not explicitly discuss or categorize the credit afforded to cooperating contractors, they represent the first memorialized guidelines and steps contractors can take to potentially lessen penalties and damages in an FCA actions. The guidelines are located in the Justice Manual, Section 4-4.112.

The guidelines state, “Entities or individuals that make proactive, timely, and voluntary self-disclosure to the Department about misconduct will receive credit during resolution of a FCA case.” Other examples of cooperation with government investigations include identifying individuals responsible for the misconduct, disclosing relevant facts relevant to the government’s investigation, and preserving and collecting pertinent documents and other evidence related to the alleged misconduct.

For remedial measures taken by the contractor or individual, the government will consider “a thorough analysis of the cause of the underlying conduct,” whether a contractor implemented or improved an effective compliance program, and whether appropriate disciplinary actions were taken against those responsible for the misconduct, among other steps.

Impact on Contractors and Individuals

These guidelines provide greater clarity and specifics on the types of conduct the DOJ values related to FCA actions and describe, more explicitly than any prior guidance, the credit the DOJ is prepared to grant. Though the DOJ will retain discretion when awarding credit to contractors and individuals, these new guidelines offer a roadmap for contractors looking to reduce penalties and damages in FCA actions.


[1] DOJ, Department of Justice Issues Guidance on False Claims Act Matters and Updates Justice Manual (May 7, 2019), available at: https://www.justice.gov/opa/pr/department-justice-issues-guidance-false-claims-act-matters-and-updates-justice-manual

US Foreign Investment Policy Gets a Tougher but More Transparent CFIUS

Harry Broadman writes about Committee on Foreign Investment in the United States (CFIUS) policy toward greater restrictions on foreign investment and more transparency into the rules and procedures governing US inbound foreign investment. Continue reading US Foreign Investment Policy Gets a Tougher but More Transparent CFIUS

False Claims Act Recoveries in FY 2018: A Quantitative Review

On December 21, 2018, the US Department of Justice (DOJ) released its False Claims Act (FCA) recovery results for the fiscal year ending September 30, 2018. It was another strong year for FCA judgments and settlements for the DOJ, which recovered over $2.8 billion from civil cases involving false claims and other related fraud. There were 767 new FCA matters initiated in FY 2018, a decrease of fifty-eight from FY 2017. Continue reading False Claims Act Recoveries in FY 2018: A Quantitative Review

Naiveté about CFIUS’ National Security Policy Towards Foreign Investment in the US

Harry Broadman writes about foreign direct investment, potential involvement by governments whose agendas may be perceived to extend beyond commercial objectives, and US scrutiny of national security risks. Continue reading Naiveté about CFIUS’ National Security Policy Towards Foreign Investment in the US

Government Shutdown: Day 24

The partial government shutdown began at midnight on December 21, 2018. As the shutdown entered its twentieth-fourth day, many government contractors were rightfully concerned about the status of negotiations between Congress and the president, the length of the shutdown, and its impact on their current and future contracts. As for the status of White House/Capitol Hill negotiations and the likely length of the shutdown, it is hard to say. Continue reading Government Shutdown: Day 24

Civilian Board of Contract Appeals’ 2018 Annual Report – A Review and Quantitative Snapshot

The US Civilian Board of Contract Appeals (CBCA)[1] released its FY 2018 Annual Report in December 2018.[2] Significant developments in FY 2018 included the institution of new board procedural rules, the transition to all-electronic files from a combination of electronic filings and paper file-based systems, and the addition of Disaster Disputes stemming from damages caused by Hurricanes Katrina, Rita, and Gustav.

From a case-load perspective, the number of cases filed at the CBCA ticked up to 409 in FY 2018 from 385 in FY 2017. The number of CBCA cases appealed to the US Court of Appeals for the Federal Circuit also increased 69 percent in 2018 to twenty-seven from sixteen in 2017. Continue reading Civilian Board of Contract Appeals’ 2018 Annual Report – A Review and Quantitative Snapshot