Offeror's Flip-Flop On Berry Amendment Compliance Dooms Award
Client Alert | 1 min read | 03.06.06
Sidestepping the question of whether pesticide impregnation in China of U.S. domestic fabric for bed nets actually violated the Berry Amendment, GAO held in MMI-Federal Marketing Service Corp. (Feb. 8, 2006, http://www.gao.
gov/decisions/bidpro/297537.pdf), that the agency's evaluation of the awardee's proposal was unreasonable because it failed to verify the awardee could in fact impregnate the fabric at a domestic facility as required under the agency's interpretation of the Berry Amendment requirements. Although the agency -- knowing that the awardee, on another contract, had insisted that the impregnation could, by license, only occur in China -- looked beyond the awardee's certification and requested additional information concerning where it would occur, the GAO found the additional information was insufficient to confirm that the awardee had made the necessary arrangements to shift the process to a U.S. domestic facility.
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Client Alert | 3 min read | 11.21.25
On November 7, 2025, in Thornton v. National Academy of Sciences, No. 25-cv-2155, 2025 WL 3123732 (D.D.C. Nov. 7, 2025), the District Court for the District of Columbia dismissed a False Claims Act (FCA) retaliation complaint on the basis that the plaintiff’s allegations that he was fired after blowing the whistle on purported illegally discriminatory use of federal funding was not sufficient to support his FCA claim. This case appears to be one of the first filed, and subsequently dismissed, following Deputy Attorney General Todd Blanche’s announcement of the creation of the Civil Rights Fraud Initiative on May 19, 2025, which “strongly encourages” private individuals to file lawsuits under the FCA relating to purportedly discriminatory and illegal use of federal funding for diversity, equity, and inclusion (DEI) initiatives in violation of Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025). In this case, the court dismissed the FCA retaliation claim and rejected the argument that an organization could violate the FCA merely by “engaging in discriminatory conduct while conducting a federally funded study.” The analysis in Thornton could be a sign of how forthcoming arguments of retaliation based on reporting allegedly fraudulent DEI activity will be analyzed in the future.
Client Alert | 3 min read | 11.20.25
Client Alert | 3 min read | 11.20.25
Client Alert | 6 min read | 11.19.25
