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Double Take: The DoD OIG Recommends Attempting to Recoup $43 Million in Purportedly Expressly Unallowable Costs Not Previously Disallowed

Client Alert | 1 min read | 02.13.20

On January 14, 2020, the Department of Defense (DoD) Office of Inspector General (OIG) released a report examining whether Defense Contract Management Agency (DCMA) contracting officer (CO) rejections of recommendations by the Defense Contract Audit Agency (DCAA) to assess penalties on $43 million in unallowable costs identified in 18 DCAA audit reports complied with the Federal Acquisition Regulation (FAR), DoD Instructions, and agency policy. The OIG did not take issue with the fact of the COs’ disagreements, nor did it take a position on the merits of the COs’ determinations. But the OIG did conclude that the COs did not adequately document their reasons for rejecting DCAA’s penalty recommendations. Accordingly, the OIG recommended that DCMA reevaluate the COs’ decisions not to assess penalties on the $43 million, take actions to reclaim any expressly unallowable costs not previously disallowed, and collect from the contractors any penalties due to the Government. DCMA stated that it would review the audit reports and attempt to recoup costs and/or penalties and interest that DCMA COs previously decided not to pursue, as appropriate.

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Client Alert | 2 min read | 11.14.25

Defining Claim Terms by Implication: Lexicography Lessons from Aortic Innovations LLC v. Edwards Lifesciences Corporation

Claim construction is a key stage of most patent litigations, where the court must decide the meaning of any disputed terms in the patent claims.  Generally, claim terms are given their plain and ordinary meaning except under two circumstances: (1) when the patentee acts as its own lexicographer and sets out a definition for the term; and (2) when the patentee disavows the full scope of the term either in the specification or during prosecution.  Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).  The Federal Circuit’s recent decision in Aortic Innovations LLC v. Edwards Lifesciences Corp. highlights that patentees can act as their own lexicographers through consistent, interchangeable usage of terms across the specification, effectively defining terms by implication....