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News/Resources: Blog

Brown Rudnick BLOGS

Welcome to Brown Rudnick’s blog page.  Below you will find our Emerging Technologies and Government Contracts blogs.  To read our Real Estate blog, Get Real! Keeping Real Estate Professionals Ahead, please visit www.getrealestatelawblog.com.

The views expressed herein are solely the views of the author(s) and do not represent the views of parties represented by the blogger(s) or the views of Brown Rudnick LLP or parties it represents.

Mobile App Privacy: Five Things Businesses Can Do To Stay Out Of Trouble

Posted on Friday, Dec 21, 2012

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The business case for offering a mobile app can be compelling: an app can give a business a constant presence on its customers’ mobile desktop, building brand awareness and allowing easy and direct interaction.  But businesses that roll out apps need to pay attention to privacy rules, too, as the recent enforcement action by California’s Attorney General reminds us.

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A New Wave Of GPL Enforcement? Samba and Linux kernel copyrightholders join the fight

Posted on Friday, Jun 29, 2012

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Talk about unintended consequences: Rob Landley, a lead developer of BusyBox, announced that he was rewriting that program solely to disarm GPL enforcers. In response, several other copyright holders came forward to hand the enforcers some bigger and more effective weapons.

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Investigators Zero In On Allegations Of Widespread Corruption In Federal Disability Employment Program

Posted on Monday, Aug 3, 2015

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Over the last week, allegations of corruption have rocked the federal disability employment agency, AbilityOne, and the SourceAmerica program it administers.  As a sign of how serious the allegations are, no less than four federal agency investigators general and the Department of Justice have launched investigations into claims of widespread fraud, bid-rigging,  lax or non-existent oversight, and conflict of interest at the program.  Moreover, following public disclosure of the allegations, on July 28, 2015, displaced workers and supporters of disability rights staged a demonstration on Capitol Hill calling for sweeping reforms.

The origins of the federal disability employment program that is now AbilityOne reach back to 1938 and the passage of the Wagner-O’Day Act under President Franklin D. Roosevelt.  The Act offered employment for people who are blind in manufacturing mops and brooms for use by the federal government.  In 1971, the Act was amended and expanded to offer employment for people with severe disabilities and to allow the program to offer additional services to the government.   Today, AbilityOne is the nation’s largest source of employment for people who are blind or severely disabled, providing jobs for more than 45,000 workers and distributing roughly $3 billion of federal money annually through the two programs its administers: National Industries for the Blind and SourceAmerica.

Yet, if there is any truth to the recent allegations (which, it must be mentioned, derive from as-yet unnamed sources and program insiders) something has gone seriously wrong over the agency’s 70+ year history.  Anonymous sources cited in the media have painted a picture of a far-too-cozy relationship between SourceAmerica and its supposed overseer, AbilityOne, with insiders at SourceAmerica funneling contracts to their friends or affiliated businesses and AbilityOne rubberstamping those arrangements with virtually no investigation or oversight.  In recent years, sources allege, a vastly disproportionate share of SourceAmerica contracts have been awarded to only ten companies, many of which (allegedly) have connections to SourceAmerica officials.

As if the potential misuse of $2.3 billion of taxpayer funds (SourceAmerica’s share of the roughly $3 billion administered by AbilityOne) weren’t bad enough, sources also have alleged gross lapses in AbilityOne’s compliance monitoring of SourceAmerica, i.e. ensuring that the jobs set aside for people with disabilities actually go to those persons.  Among other things, tipsters claim that SourceAmerica contract awardees openly flout the requirement that 75% of their workers be persons with severe disabilities and that the program watchdog, AbilityOne, is not stopping that conduct.

One telling illustration of the current state of “oversight”, media sources allege, is that in a sample of 80 letters sent by AbilityOne to contractors asserting non-compliance with program requirements, only half the recipients bothered to respond and in no case was a non-compliant company disciplined by the agency.  The same sources claim that AbilityOne, which is required to carry out regular compliance inspections of its contractors, has not sent investigators to some locations for years or decades.  If true, that watchdog is looking pretty toothless.  More importantly, it means that the people who are supposed to be able to find work under the program—people who may be discriminated against when they try to find work elsewhere—likely are being cheated out of the jobs set aside for them.

We are sure to hear more about these allegations over the coming months as the IG and DOJ investigations unfold.  Here’s hoping the reports prove unfounded and that the program begun by President Roosevelt—perhaps the nation’s most prominent advocate for disability rights—is not being used as a slush fund at the expense of the people it was meant to help.

Recent CNN coverage of the AbilityOne/SourceAmerica allegations is available at:  <<http://www.cnn.com/2015/07/27/us/disabled-work-program-investigation/>> and <<http://www.cnn.com/2015/07/28/us/disabled-work-program/>>.

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Failure to exhaust administrative remedies may doom claims

Posted on Wednesday, Jul 8, 2015

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Americans like to sue. But, there are many laws that require the aggrieved party to follow certain procedures before heading to court against a government agency. This process of jumping through agency hoops is known called “exhausting administrative remedies.”

A recent case in point is Florida Agency for Health Care Administration v. Bayou Shores SNF, LLC (No. 8:14-bk-9521-MGW, M.D. Fla., June 26, 2015). Bayou operated a nursing home, which was shut down by the government for “conditions [that] constituted immediate jeopardy to residents’ health and safety.” Bayou sought and obtained a temporary restraining order allowing it to stay open, but the government convinced the court to dissolve the TRO because Bayou had failed to exhaust administrative remedies under the Medicare Act. Bayou declared bankruptcy and again got a TRO, but again, the government convinced the court to dissolve the TRO because Bayou had still failed to exhaust administrative remedies under the Medicare Act. The court said that instead of seeking the TROs, Bayou should have requested a hearing before, and a final decision by, the Secretary of Health and Human Services (or his designee).

Why should government contractors care?

The Contract Disputes Act is one of those laws that requires contractors to exhaust administrative remedies before heading to court. For example, if a contractor believes that the government has made a constructive change to the contract, the contractor has to jump through various hoops before suing for additional compensation. Those hoops may include giving timely notice of a constructive change (see, for example, Federal Acquisition Regulation 52.243-4) and filing a claim under the CDA. If the claim is for more than $100,000, it must be certified as specified in FAR 33.207. Contractors need to know, as well, the difference between a certified claim and a request for equitable adjustment and when to use–or not use–each one.

Remember, taking a shortcut by not exhausting administrative remedies may actually be the longer route.

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