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President Trump’s DEI Certification for Federal Contractors Creates Significant FCA Risk

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On January 21, 2025, President Trump signed an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based...

We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

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On January 21, 2025, President Trump signed an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”), rescinding affirmative action under Executive Order 11246 and other anti-discrimination policies applying to federal contractors. We provided an in-depth review of that Order, while noting that much remains to be seen given the Order’s minimal execution details and the current legal challenges to the Order. We focus here on one particular feature of the Order: its threat of proactive—and unprompted—private sector enforcement through the civil False Claims Act (“FCA”).Read the <a href="https://govcon.mofo.com/topics/president-trump-s-dei-certification-for-federal-contractors-creates-significant-fca-risk" target="_blank">full blog post</a>.

President Trump’s DEI Certification for Federal Contractors Creates Significant FCA Risk

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Sandeep Nandivada is a partner in the Litigation Department of Morrison Foerster’s Washington, D.C. office. Sandeep’s practice focuses on civil litigation, complex internal investigations, and government contracts compliance, including matters related to cybersecurity and data breaches.Sandeep’s civil litigation practice focuses on bid protests, contract claims, subcontract disputes, and False Claims Act matters. He has litigated numerous protests before the Government Accountability Office, U.S. Court of Federal Claims, and the Small Business Administration Office of Hearings and Appeals across an array of subject matters—including some of the largest and most-high profile public procurements. Sandeep also has supported clients on significant claims, requests for equitable adjustments, and subcontract disputes involving a variety of performance or cost related issues.In addition, Sandeep has extensive experience conducting investigations with False Claims Act, Anti-Kickback Act, Procurement Integrity Act, and suspension and debarment implications. He has advised clients regarding procurement fraud, anti-corruption, procurement integrity, defective pricing, and cybersecurity, and has assisted clients with voluntary and mandatory disclosures under the FAR. Sandeep also was seconded to Northrop Grumman as Investigations Counsel.Sandeep also regularly advises clients on FAR and DFARS compliance issues, particularly issues related to cybersecurity, commercial item contracting, Buy American Act and Trade Agreements Act compliance, and organizational conflicts of interest. He also works with clients to evaluate and develop ethics and compliance programs.Sandeep has been named a “Rising Star” in 2020 by Law360 and National Law Journal, as well as DCA Live in 2018. He also has been named a Recommended Lawyer by The Legal 500 and as “One to Watch” by Best Lawyers. He is active in the American Bar Association’s Public Contract Law Section, currently serving as Vice-Chair on both the Cybersecurity, Privacy, and Emerging Technology Committee and the Procurement Fraud and False Claims Committee.Sandeep graduated With Honors from the George Washington University Law School, where he was Editor-In-Chief of The George Washington Journal of Energy and Environmental Law, Vice President of Internal Competitions for the Moot Court Board, a legal writing fellow, and a member of the Alternative Disputes Resolution Board. He received his undergraduate degree from Cornell University with Distinction in all Subjects in History.Sandeep is admitted to practice in Virginia, the District of Columbia, and before the U.S. Court of Federal Claims, the U.S. District Court for the Eastern District of Virginia, the U.S. Court of Appeals for the Federal Circuit, and the U.S. Court of Appeals for the Fourth Circuit.<h4>Representative Experience</h4><h5>Litigation</h5><ul><li>Successfully protested award of $45B Department of Energy contract for nuclear waste cleanup at the Hanford site in Washington State on behalf of Hanford Tank Disposition Alliance, LLC.</li></ul><ul><li>Successfully protested award of $10B Joint Enterprise Defense Infrastructure (“JEDI”) Contract on behalf of Amazon Web Services, Inc. </li><li>Successfully resolved notice of potential debarment for Department of Defense contractor without any administrative penalties or sanctions.</li><li>Successfully defended award of LOGCAP V contract and associated task orders to Vectrus Systems Corporation.</li><li>Successfully protested $87.4 million contract award based on agency’s failure to identify organizational conflicts of interest for the awardee.</li><li>Successfully defended award of IDIQ contract for Transformation Twenty-One Total Technology Next Generation procurement.</li><li>Successfully resolved False Claims Act and Procurement Integrity Act allegations, without litigation, on behalf of government contractor.</li><li>Represented large defense contractor in response to agency show cause letter and in certified claim against agency, and successfully negotiated favorable settlement.</li></ul><h5>Investigations</h5><ul><li>Conducted internal investigations for multiple clients concerning data breaches, including counseling such clients on remediation and reporting obligations.</li><li>Conducted internal investigation regarding major defense contractor’s accounting and business systems practices, including representing client’s interests with the Defense Contract Audit Agency and advising client executives regarding proposed changes and remedial actions.</li><li>Conducted internal investigation concerning allegations of fraudulent billing, including submission of mandatory and supplemental disclosures to agency inspectors general.</li><li>Conducted internal investigation for major defense contractor responding to subpoena from federal agency seeking commercial cost data, including successfully negotiating the scope of the subpoena.</li><li>Conducted internal investigation regarding major defense contractor’s compliance with export control laws and regulations.</li><li>Conducted internal investigation for major defense contractor regarding contract performance issues.</li><li>Conducted internal investigation for major defense contractor concerning Procurement Integrity Act compliance.</li><li>Conducted Foreign Corrupt Practices Act investigation for multinational corporation.</li></ul><h5>Compliance</h5><ul><li>Conducted multiple multi-national government contracts compliance review and associated risk assessment for a Global Fortune 500 company, including recommending process improvements and policy changes.</li><li>Conducted multinational compliance review regarding conflicts of interest and anti-kickback policies.</li><li>Counseled major government contractor regarding cybersecurity disclosure obligations.</li><li>Counseled clients regarding compliance with applicable Pay-to-Play, Lobbying, and Revolving Door restrictions.</li></ul>

Sandeep Nandivada

Partner

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as:<ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:<ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.<h4>Federal Contractor Experience</h4><ul><li>Defended numerous OFCCP audits, including closing audits with a finding of no violations against a major accounting firm, a language learning software provider, and a technology consulting company</li><li>Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company</li><li>Performed mock SCA audits for various contractors</li><li>Led labor and employment diligence for $1 billion acquisition of international security firm</li><li>Developed and overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed subcontractor status for numerous companies to determine OFCCP coverage, including for a large semiconductor manufacturer</li><li>Conducted E-Verify and I-9 audit for a national dispute consulting contractor</li><li>Performed “single entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay equity audits for contractors, including for a software and consulting company</li><li>Obtained DOL approval under the SCA for self-funded fringe benefit program of an aviation and space contractor</li><li>Advised a multinational package delivery company on establishing program to conduct denied party screening under lists maintained by OFAC and BIS while minimizing risk of discrimination claims and compliance with background check laws</li><li>Advised a global coffee and coffeehouse chain on establishing hiring processes to avoid discrimination claims while complying with ITAR/EAR</li><li>Developed business ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education association against claims by former employers of two executives alleging breach of restrictive covenants and theft of trade secrets and confidential information</li><li>Obtained preliminary injunction enforcing a noncompetition agreement and other restrictive covenants against a former senior sales executive of a technology firm</li><li>Led internal investigation of sexual harassment claims against COO of a public real estate firm</li><li>Advised a global food manufacturer in avoiding litigation while terminating employee threatening whistleblower claims based on employer’s confidential information</li><li>Defended former senior executives of a global manufacturer of performance fabrics against allegations of misappropriation of trade secrets and breach of noncompetition agreements</li><li>Advised an entrepreneur in creating startup while minimizing risk of his former employer pursuing enforcement of restrictive covenants </li><li>Assisted a property management firm in navigating internal investigation of whistleblower claims related to alleged fraud, ethics violations, and sexual harassment by senior executive</li><li>Won motion for reconsideration convincing court to grant summary judgment in gender discrimination and retaliation case against a large DC employer </li><li>Obtained terminating sanctions and attorneys’ fees and costs for discovery violations in a discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software company in claims by former executive alleging breach of his employment agreement</li><li>Advised a company board in navigating termination of CEO and successfully defended CEO’s breach of contract and wage claims</li><li>Defended numerous EEOC charges, including against a national event planner, a multinational professional services company, and an operator of research and development centers for the government</li><li>Defended and settled over 30 unfair labor practice charges against a national call center operator</li><li>Negotiated new collective bargaining agreements with four separate unions in bankruptcy of an international maritime shipping company</li><li>Awarded pro bono achievement award for defending a non profit in litigation and several administrative audits before the EEOC and state agencies related to a former employee’s whistleblower and discrimination claims, including defending multiple onsite investigations</li><li>Oversaw validation of pre-employment tests for a national food service distributor</li></ul>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.<h4>Rankings</h4><ul><li>Recommended for Government Contracts – Legal 500 US 2019 </li></ul>