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November 12, 2019 By cs

DOJ issues new guidance for treatment of confidential information under recent Supreme Court FOIA decision

Last month, the Department of Justice Office of Information Policy issued new guidance on the definition of confidential information under Exemption 4 of the Freedom of Information Act.

This new guidance addresses the meaning of “confidential” in light of the Supreme Court’s decision in Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019). While not determinative, this DOJ Guidance offers contractors critical insight into how agencies will respond in the first instance to FOIA requests for information that may be subject to Exemption 4. This exemption protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).

As noted by the Covington law firm earlier this year, in Food Marketing Institute, the Supreme Court jettisoned 40 years of established FOIA case law on how agencies defined confidential under Exemption 4.  It rejected the well-established “competitive harm” test from National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974) based on the lack of support in the statutory language. In its place, it adopted a “plain language” interpretation of confidential, finding two potential definitions: (1) information “customarily kept private, or at least closely held,” by the submitting party; and (2) information disclosed when the receiving party provides “some assurance that it will remain secret.”  The Supreme Court held that the first condition was mandatory but expressly left open whether confidential information could lose that status if provided to the government “without assurances that the government will keep it private.”  As a result, contractors and agencies alike were left without clear guidance as to whether, or when, a government “assurance” may be required.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/11/doj-issues-new-guidance-for-treatment-of-confidential-information-under-recent-supreme-court-foia-decision/

Filed Under: Government Contracting News Tagged With: confidential information, disclosure, DOJ, FOIA, guidance, Supreme Court, trade secrets

November 16, 2018 By AMK

CDC senior contracting officer sentenced for failing to disclose payments from contractor

As a result of his Nov. 8, 2017 indictment, Carlos Smiley was sentenced to federal prison on Nov. 15, 2018 for making false statements in his annual conflict of interest certification. 

Smiley was a long-time federal employee, having served in positions at NASA’s Marshall Space Flight Center in Huntsville, Alabama and at DoD’s Army Aviation Systems Command in St Louis, Missouri.  At the time of his indictment, he was a senior contracting branch chief at the Centers for Disease Control and Prevention (CDC) in Atlanta, and the president of the Atlanta chapter of the National Contract Management Association.

According to U.S. Attorney Byung J. “BJay” Pak, the charges and other information presented in court are:

  • On February 16, 2012 and January 7, 2013, Smiley completed Confidential Financial Disclosure Reports required by his position as a CDC Contracting Officer.  Both times, Smiley answered “no” to the question asking whether he had received outside income.
  • Between September 2011 and January 2012, Smiley received several payments from A-TEK, a Virginia-based holding company that was seeking to do business with the CDC during that time.
  • CDC previously granted Smiley’s request to operate a company called Charisma III, Inc. as an outside business activity. After that, Smiley ostensibly received payments through Charisma III for real estate investment advice.
  • In 2012, A-TEK was awarded a single-source contract for the staffing of CDC field stations overseas.  Smiley signed the contract as the approving contracting officer for CDC.  A-TEK turned down the contract after learning of the relationship between Smiley and a representative of its holding company, who was also an A-TEK employee until fired for his conduct.  Smiley failed to disclose six payments for a total of $30,600.
  • In 2015, CDC investigators confronted Smiley about the payments.  He admitted to receiving them and to having invented the Charisma III officer whose fictitious name appeared on the purported agreement between Charisma III and the holding company for real estate investment advice.

Carlos Smiley of Roswell, Georgia was sentenced to three months in federal prison by U.S. District Judge Thomas W. Thrash, Jr. on November 15, 2018.

Smiley was also sentenced to one year of supervised release and 200 hours community service following his release from prison. He was also fined $5,000.

Smiley was convicted of the charge on July 19, 2018, after pleading guilty to making false statements.

The case was investigated by the Department of Health and Human Services, Office of the Inspector General.

Source: https://www.justice.gov/usao-ndga/pr/cdc-senior-contracting-officer-sentenced-failing-disclose-payments-contractor 

Filed Under: Government Contracting News Tagged With: CDC, conflict of interest, conviction, disclosure, DOJ, false statements, financial disclosure, HHS, indictment, Justice Dept., kickback, outside source of income

November 13, 2017 By AMK

CDC contracting official indicted by federal grand jury

A federal grand jury has criminally indicted a top contracting official with the Centers for Disease Control and Prevention in Atlanta.

According to the Nov. 8, two-count indictment filed in federal court in Atlanta, Carlos Smiley, who was a branch chief in the CDC’s Office of Acquisition Services, is charged with not reporting that he had outside sources of salary or other income greater than $200 “when defendant Smiley knew that such statement and representation was false,” the indictment states.

Keep reading this article at: https://www.bizjournals.com/atlanta/news/2017/11/10/cdc-contracting-official-indicted-by-federal-grand.html

Filed Under: Government Contracting News Tagged With: CDC, conflict of interest, disclosure, false statements, indictment, outside source of income

January 26, 2016 By AMK

Of politics and procurement

How best to say this?  “Here we go again?”  

US CongressOnce more, a group of well-intentioned members of Congress are pushing the president to issue a directive that would mandate that contractors disclose all of their political contributions upon being awarded a government contract.  Transparency, we are told, is essential to the integrity of the procurement process.

Odd as it may sound, they are half right.  The integrity of the process is essential. But in this case, the “transparency” being discussed actually risks opening the door to the very kind of malfeasance the acquisition system is designed to avoid. It is a poorly conceived proposal that should be set aside — for good.

So, what is the big deal?  There are several reasons to strongly oppose the proposal.

Keep reading this article at: http://www.govexec.com/excellence/promising-practices/2016/01/politics-and-procurement/125053/

Filed Under: Government Contracting News Tagged With: campaign contributions, Congress, disclosure, ethics, influence, political contributions, politics, transparency

July 2, 2013 By AMK

FEMA official gets two years’ probation for revolving-door relationship with contractor

Private industry frequently considers hiring existing and former federal government employees for their experience, knowledge base and skill set. As a reaction to the continuing perception that high-level federal employees jump from government to private industry and take sensitive government information with them, over the years Congress has introduced complex and often overlapping revolving-door legislation that imposes post-government employment restrictions on certain employees. While many government employees successfully transition to the private sector, failure to observe revolving-door laws and regulations can result in severe consequences for both contractors and government employees. A recent example of what can go wrong for both such parties is the case of Timothy Cannon and the Gallup Organisation.

On April 9 2013 Judge Jackson of the District Court for the District of Columbia sentenced Timothy Cannon, former director of the human capital division at the Federal Emergency Management Agency (FEMA), to two years of probation for conflict of interest violations.

According to Cannon’s plea, he helped Gallup to acquire a $6 million contract, while at the same time pursuing employment with the company. As a result of its alleged employment discussions with Cannon and related conduct, Gallup faces potential liability for civil damages and penalties under the False Claims Act and the Procurement Integrity Act, including treble damages and disgorgement of all money received under the contract. Moreover, these types of case always raise the risk of the contractor’s suspension or debarment, which would preclude any new contract awards for up to three years. This case serves as a reminder for private contractors wishing to hire existing or former government employees that they must have rigorous internal controls in place in order to ensure compliance with post-government employment requirements.

Keep reading this article at: http://www.internationallawoffice.com/newsletters/detail.aspx?g=cb1ea107-d51f-4ad7-b375-00f8a3dad2d7&redir=1 

Filed Under: Government Contracting News Tagged With: conflict of interest, contract administration, corruption, debarment, disclosure, employment restrictions, ethics, False Claims Act, FEMA, post-government employment, procurement integrity, Procurement Integrity Act, SOW, suspension

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