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"Excessive" Pass-Through Charges Defined And Prohibited

Client Alert | 1 min read | 10.15.09

Implementing statutory requirements, FAR has been amended with interim rules (74 Fed. Reg. 52852 (Oct. 14, 2009)) that prohibit "excessive" pass-through charges on cost-reimbursement contracts with civilian agencies in excess of the simplified acquisition threshold and on all types of contracts with DOD in excess of $650,0000 (except for fixed-price contracts awarded based on adequate price competition or for commercial items), to require that the provisions be flowed down to subcontractors, to require that covered contractors and subcontractors report specific information about pass-through charges (indirect costs and profit) either in their proposals when they intend to subcontract more than 70 percent of the contract or subcontract effort or after award when they actually subcontract more than 70 percent of the effort, and to provide that excessive pass-throughs are "unallowable" on flexibly-priced contracts and justify a price adjustment when included in the price of fixed-price contracts. "Excessive" pass-through charges exist when a covered prime contractor or higher-tier subcontractor adds no or negligible value and charges indirect costs or profit (other than indirect costs and profit for managing the subcontractor) on work performed by a subcontractor and the contracting officer makes a determination that the pass-through costs are excessive, normally in evaluating the proposal, but also in evaluating information that contractors and subcontractors are required to report after award when subcontracting plans change sufficiently to exceed the 70 percent reporting threshold.

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Client Alert | 3 min read | 04.14.26

DOJ’s False Claims Act Resolution Against IBM Signals Heightened Risk for Federal Contractors with DEI Programs

On Friday, April 10, 2026, the U.S. Department of Justice (DOJ) announced that International Business Machines Corporation (IBM) has agreed to pay just over $17 million to resolve allegations that it violated the False Claims Act (FCA) by failing to comply with federal anti-discrimination requirements incorporated into its federal contracts due to allegedly discriminatory diversity, equity, and inclusion (DEI) employment practices. This resolution marks the first FCA settlement secured by the DOJ under its Civil Rights Fraud Initiative, created in May 2025, and announced by then-Deputy Attorney General Todd Blanche as part of the administration’s coordinated efforts to target allegedly unlawful DEI practices. Per the agreement, the settlement is neither an admission of liability by IBM nor a concession by the United States that its claims are not well founded....