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Court Compels Government to Produce Attorney Documents and CO’s Justification for Rescinding Final Decision that Formed Basis of FCA Case

Client Alert | 1 min read | 05.09.17

On April 24, the Eastern District of Michigan compelled discovery in an FCA case, ordering the government to produce documents and testimony supporting the CO’s basis for withdrawing the Army’s final decision and demand for payment underlying an ASBCA appeal that involved "precisely the same facts." Both matters stemmed from a DCAA audit report alleging defendant BAE Systems Tactical Vehicle Systems (BAE-TVS), represented by C&M, provided defective cost or pricing data, which in turn led to the Army’s pursuit of payment and the government’s subsequent fraud claims. As a result of the CO’s rescission of the final decision alleging defective pricing, the ASBCA action was dismissed as moot; but the government persisted with the FCA action while resisting discovery into the CO’s determination. The court rejected the government’s work-product and attorney-client privilege defenses, explaining that: (1) the attorneys involved voluntarily supplied facts that formed the basis of the CO’s decision; (2) the CO’s decision resembled a non-privileged administrative adjudication; and (3) the CO was acting pursuant to "public requirements unrelated to litigation."

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Client Alert | 1 min read | 07.08.26

CAS Board Publishes Final Rule Rescinding CAS 404, 408, 409, and 4117

As part of its ongoing effort to conform the Cost Accounting Standards (“CAS”) to generally accepted accounting principles (“GAAP”), the CAS Board published a final rule rescinding CAS 408 (Accounting for costs of compensated personal absence) and CAS 411 (Accounting for acquisition costs of material).  The CAS Board also rescinded CAS 404 (Capitalization of tangible assets) and CAS 409 (Depreciation of tangible capital assets) but retained certain requirements of CAS 404 and 409, which will be located in new paragraphs of CAS 405 (Accounting for unallowable costs).  Specifically, the CAS Board retained the requirements currently located at CAS 404-50(d)(1), CAS 409-50(e)(5), CAS 409-50(j)(1), and CAS 409-50(j)(4), which the CAS Board explained are necessary to protect the Government’s interests.  Otherwise, the CAS Board determined that the requirements of CAS 404, 408, 409, and 411 overlapped with GAAP such that GAAP “may be applied reasonably as a substitute for CAS to support contract cost and pricing.”...

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