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Court Orders Opening of Pandora's Box

Client Alert | 1 min read | 03.12.14

In U.S. ex rel. Barko v. Halliburton Co. (D.D.C. Mar. 6, 2014), the court ordered the defendants in a qui tam FCA case to produce internal reports and other documents that were prepared during the course of internal investigations initiated in response to "tips" regarding potential misconduct, even when the tips were made directly to the defendants' Law Department, the reports were transmitted to the Law Department, and the investigations were initiated and managed by senior in-house attorneys. The court concluded that the materials were not protected by the attorney-client privilege because the investigations were "undertaken pursuant to regulatory law and corporate policy"— i.e., the contract clause required by the FAR Mandatory Disclosure rules, which set forth requirements for a contractor's code of business ethics and conduct, compliance program, and internal controls system—"rather than for the purpose of obtaining legal advice," and that they were not protected by the work product doctrine because they were not prepared in anticipation of litigation.


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Client Alert | 4 min read | 10.30.26

Two Wrongs Don’t Make a Right: GAO Sustains Protest Where Agency Tried to Fix PIA Violation with a Second PIA Violation

Recent sustain decisions by the U.S. Government Accountability Office (GAO) in Fluor Federal Solutions, LLC and Reliance Test & Technology send a clear message: when an agency tries to fix a Procurement Integrity Act (PIA) violation by committing a second one, the cure can be just as fatal as the disease. The cases involved the U.S. Air Force’s $1.8 billion procurement for O&M services at Elgin Air Force Base. During discussions, the Air Force inadvertently released a pricing overview slide with all offerors’ bottom-line evaluated costs to Reliance Test & Technology, which immediately notified the agency of the error. In response, the Air Force decided to level the playing field by providing the same information to all the other offerors in the procurement, stating, “[o]fferors may consider this disclosure in their [final proposal revision].”...