Bradley attorney Aron Beezley was quoted in Law360 on the government contracts case rulings that have taken place thus far in 2020. In March, a decision administered by the U.S. Court of Appeals for the Fourth Circuit in the case of engineering and construction giant Fluor International Inc. stated that the company hadn't waived attorney-client privilege during an internal investigation when it had made a mandatory disclosure to the U.S. government.
"If the decision had come out the other way, in that making a mandatory disclosure to the government necessarily means that you are waiving attorney-client privilege, that would create all sorts of disincentives not to disclose pursuant to the mandatory disclosure rule," Beezley said. "So I think not only did the Fourth Circuit correctly decide it as a matter of law, but as a matter of policy it also makes very good sense."
Beezley also gave his perspective on the Insero Corp. v. U.S. case that took place in June in the U.S. Court of Appeals for the Federal Circuit. The decision effectively expanded the waiver rule beyond patent solicitation concerns to cover non-patent issues that become apparent later in the procurement process, and "fundamentally lacks an appreciation for how things work in practice and in reality for government contractors."
"If that's the new rule, what that's going to do is invite an awful lot of defensive pre-award protests, and perhaps speculative protests," he added. "I don't think that's what the [Department of Justice] wants. I think there's going to be a lot of problems that come out of this decision."
The complete article, "Gov't Contracts Cases Of 2020: Midyear Report," appeared in Law360 on July 1, 2020 (login required).