• How to Get Some of Remaining Recovery Act Money• Recovery Act-Funded Contracts: Some Legal Issues

Presented by

Ira E. HoffmanShulman, Rogers, Gandal, Pordy & Ecker, P.A.

12505 Park Potomac Avenue, Sixth Floor, Potomac, Maryland 20854301-231-0948 / www.shulmanrogers.com / ihoffman@shulmanrogers.com

Ira E. Hoffman, Esq.

Ira E. Hoffman, who has been practicing law for more than 25 years, is the Chair of the Government Contracts and International Practice Groups at Shulman Rogers, a 100-lawyer, full-service law firm in the Washington, DC suburb of Potomac, MD.  He represents large and small contractors in bid protests at the GAO and Court of Federal Claims, and in claims and disputes with more than a dozen agencies. He also advises U.S. exporters and multi-national corporations whose products and services range from military items under the ITAR to dual-use technology under the EAR. In addition, he teaches courses on “International Government & Commercial Contracting,” “Changes and Equitable Adjustments,” and “The Federal Acquisition Regulation” for Federal Publications Seminars/West, and is a regular contributor on Government Contracts and Export Controls for the Legal Research Network’s Ethics & Compliance Alliance.  

Previously, Mr. Hoffman served as a Court Law Clerk at the U.S. Court of Appeals for the D.C. Circuit; as Counsel to the Vice Chairman of the U.S. International Trade Commission; and as Counsel to the Israeli Ministry of Defense Mission to the United States.  He also practiced with the nationally prominent large law firms Fried Frank and Howrey & Simon; and was an Adjunct Professor at the George Mason University School of Law.  He is a graduate of the University of Michigan (B.A., 1973), the London School of Economics (M.Sc 1975), and the University of Miami School of Law (J.D., cum laude, 1983), where he was an editor on the Law Review.

09/15/08 Lehman Brothers goes under 10/03/08 Pres. Bush signs Emergency Economic

Stabilization Act of 2008 (EESA) ($700B primarily for TARP)

01/21/09 Pres. Obama inaugurated 02/17/09 American Reinvestment & Recovery Act

(“ARRA” or “Recovery Act”) signed 02/18/09 Initial OMB Guidance released 04/03/09 Updated Implementing Guidance issued 10/01/09 Recipient Reporting Begins

Remaining Opportunities for Recovery Act Funding

2009 - $285 billion 2010 - $333 billion 2011 - $169 billion

Total - $787 billion

Source: Council of Economic Advisers, “The Economic Impact of the American Recovery and Reinvestment Act of 2009,” First Quarterly Rep. (Sept. 10, 2009) (citing CBO, “Cost Estimate for [Recovery Act],” (Feb. 13, 2009))

Recovery Act-Funded Contracts:

Some Legal Issues

New Part 176 added to 2 CFR to provide guidance for grants, cooperative agreements & loans awarded with Recovery Act funds

◦ New Reporting & Registration requirements◦ Buy American Act requirements◦ Wage rate requirements◦ Single audit information for recipients

Buy American Requirements for Construction Materials

Reporting Requirements Publicizing Contract Actions Increased GAO/IG Audit Access Whistleblower protections

Reporting of Recovery Act spending will be separate from all other reporting

All Federal agency guidance must be immediately posted on the agency’s Recovery Act web page

Agencies required to provide weekly funding reports to OMB

Creation of Recovery Act Accountability and Transparency Board – consists of Agency IGs

Fixed-price contracts to be used to “maximum extent practicable”

J & As for noncompetitive awards in fbo.gov

Maximum practicable opportunities for small business participation

New FAR 3.907 prohibits “non-Federal employers” – i.e., recipients of Recovery Act funds -- from discharging, demoting, or otherwise discriminating against an employee as a reprisal for disclosing “covered information” to Government officials

“Covered information” means (1) “gross mismanagement” of the contract, (2) “gross waste,” (3) a “substantial and specific danger to public health,” (4) “abuse of authority” related to use of Recovery Act funds, or (5) violation of a law, rule or regulation related to a Government contract

§ 1605 (Buy American Act) provides (with certain exceptions) that "[n]one of the funds appropriated or otherwise made available by this Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.“

§ 1606 (Davis-Bacon Act) requires the payment of not less

than the prevailing wages under the Davis-Bacon Act to "all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government” with Recovery Act funds

All Recovery Act-Funded Contracts and Grants require heightened levels of

1) Transparency: prompt & complete disclosure of:a) Contract performanceb) Job creation and retention

2) Oversighta) Whistleblower rightsb) GAO and IG audit access