CHANGING TRENDS IN GOVERNMENT CONTRACTS & CLAIMS
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1 CHANGING TRENDS IN GOVERNMENT CONTRACTS & CLAIMS
2 MODERATOR James G. Zack, Jr. Executive Director, Navigant Construction Forum
3 SESSION OVERVIEW Panel will discuss some trends in areas of Efforts to criminalize construction site safety incidents Government contract compliance when dealing with quasi-governmental agencies Performance Bond trends Current issues in EPC contracting & government contracts Trends related to False Claims Act Strategies for managing cost of data production
4 Fourth level Michael G. Serafino PRESENTERS Chief Compliance & Litigation Officer, Lendlease Bobby Brown, Jr. Assistant General Counsel Energy Kiewit Energy Group Laura Rehfeldt Deputy District Attorney, Office of Clark County District Attorney Shelly Ewald Senior Partner, Watt, Tieder, Hoffar & Fitzgerald Kelly Heuer Managing Director, Navigant Consulting
5 Michael G. Serafino Chief Compliance & Litigation Officer Lendlease Americas Inc
6 Criminalization of Safety Incidents Recent trend to try to criminalize construction site safety incidents Department of Justice (DOJ) & Department of Labor (DOL) cooperative effort Charged with increasing the frequency of criminal prosecutions OSHA empowered to refer alleged violations to DOJ for potential criminal prosecution The government (Federal, State and Local) believe that individual prosecutions are the key to effective deterrence The landscape is changing and now specifically designed to criminally punish safety violations Recommendations: Adopting a Safety Culture Accountability Training
7 Bobby Brown, Jr. Assistant General Counsel Energy Kiewit Energy Group
8 Government Contract Compliance Quasi-governmental entities QGEs? Identifying applicable rules & regulations Identifying conflicts between contracts & rules & regulations Specific areas of concern Diversity contracting Audit Claim processes Others
9 Laura Rehfeldt Deputy District Attorney Civil Division Office of the Clark County District Attorney
10 Performance Bonds Performance bonds Triggering bond obligations (notice/default) Trends in negotiating takeover agreements Pros/Cons Timing Ownership & use of funds (earned & unearned) Claims for Liquidated Damages Remedies
11 Shelly L. Ewald Senior Partner Watt, Tieder, Hoffar & Fitzgerald
12 EPC Contracting Update on current issues in EPC contracting & government contracts Risk allocation clauses in EPC contracts Differing Site Conditions, Permits, Access, Changes, Scheduling & Delays US ex rel Escobar Supreme Court decision on Implied False Certification
13 Kelly Heuer Managing Director Global Construction Practice Navigant Consulting
14 Managing Cost of Litigation Strategies for managing costs of data production in litigation Technology Assisted Review ( TAR AKA Predictive Coding ) Practical measures Producing in native format Targeted collection and processing Centralizing data and removing duplicates
15 Managing Cost of Litigation Case Study: Electric Utility Company Dispute between our client and a contract vendor hired to build a facility Key Issues / Goals In response to the arbitration, both parties agreed to produce relevant documents for the specified custodians in under four months Our client began with a starting population of 1.8 million documents for review after isolating key custodians and timeframes Solution Using the TAR approach, our client only reviewed 41k documents out of the entire population of 1.8 million documents in order to achieve 80% recall with 84% precision Based on the TAR model, our client was able to produce 750k responsive documents to the opposing side by the deadline TAR was also used to surface potentially privileged documents prior to production Our client is now using the TAR model to analyze the files produced TO them by the opposing side and quickly isolate documents related to the various deficiency issues
16 QUESTIONS? Kiewit Energy US Bobby Brown, Jr. Assistant General Counsel - Energy Kiewit Energy Group Bobby.Brown@Kiewit.com Clark County, Nevada Laura C. Rehfeldt Deputy District Attorney Clark County District Attorney Laura.Rehfeldt@clarkcountyda.com Watt Tieder Shelly L. Ewald Senior Partner Watt, Tieder, Hoffar & Fitzgerald sewald@wthf.com Lendlease Michael G. Serafino Chief Compliance & Litigation Officer Lend Lease Americas Inc. Michael.Serafino@lendlease.com Kelly Heuer Managing Director Navigant Consulting Kheuer@navigant.com James G. Zack, Jr. Executive Director Navigant Construction Forum jim.zack@navigant.com /
17 THANK YOU
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