Trump Swings His Wrecking Ball at Social Security

NEIL H. BUCHANAN

Neil H. Buchanan—UF law professor and economist—dispels some common misunderstandings about the future of Social Security but explains why President Trump’s recent comments are cause for concern. Buchanan explains why, contrary to claims by reporters and politicians, Social Security is not at the brink of insolvency, but points out that if Trump were to permanently eliminate payroll taxes, that would doom the program on which tens of millions of retirees depend.

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Texas Workforce Commission v. United States Department of Education

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-50283

Opinion Date: August 31, 2020

Judge: Kurt D. Engelhardt

Areas of Law: Arbitration & Mediation, Government Contracts, Military Law

The Commission alleged that the Army violated the Randolph-Sheppard Act by failing to give priority to blind vendors in the bidding process for a vending facility services contract at an Army base cafeteria. After the arbitration panel found in favor of the Army, the Commission appealed the panel's decision. The Fifth Circuit affirmed the district court's grant of summary judgment in favor of the Commission. The court held that the statutory language is ambiguous; applied the presumption against ineffectiveness; supported a broader interpretation of "operate" in the context in which it is used within the Act; and held that the district court did not err in holding that the Act may apply to Dining Facility Attendant (DFA) contracts generally. In this case, the DFA contract at issue is subject to the Act and the Army violated the Act by not giving the Commission priority in the bidding process.

United States v. Bailey

Court: US Court of Appeals for the Sixth Circuit

Dockets: 18-5903, 18-5607, 18-5901

Opinion Date: September 1, 2020

Judge: Gibbons

Areas of Law: Criminal Law, Government Contracts, Health Law, White Collar Crime

A jury convicted Sandra, Calvin, and their son Bryan Bailey of conspiring to commit healthcare fraud and other related crimes (18 U.S.C. 371, 1343, 1347; 42 U.S.C. 1320a-7b). The three, working for medical equipment companies, used fraud, forgery, and bribery to sell power wheelchairs and other equipment that was not medically necessary. The district court sentenced Sandra to 120 months’, Calvin to 45 months, and Bryan to 84 months’ imprisonment. The Sixth Circuit affirmed the convictions and the sentence imposed on Bryan. The court rejected challenges to the sufficiency of the evidence and to various evidentiary rulings and upheld the admission of certain out of court statements made in furtherance of the conspiracy. The district court miscalculated Sandra’s Guidelines-range sentence when it erroneously imposed a two-level increase in her offense level for using “mass marketing” in her scheme and incorrectly calculated the loss amount for which Calvin was responsible—and by extension, his Guidelines-range sentence—by holding him responsible for losses beyond those he agreed to jointly undertake.

Kellogg Brown and Root Services, Inc. v. Secretary of the Army

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1683

Opinion Date: September 1, 2020

Judge: Timothy B. Dyk

Areas of Law: Government Contracts

KBR contracted with the government to provide trailers to house coalition personnel at military camps in Iraq. KBR claimed that the government breached the contract by failing to provide “force protection” to the trucks delivering the trailers to the military camps. KBR sought to recover payments made to its subcontractor, Kuwaiti, for costs caused by the government’s alleged breach. The administrative contracting officer in large part denied the claim. The Armed Services Board of Contract Appeals found that KBR was not entitled to any additional recovery. The Federal Circuit affirmed. The Board properly determined that KBR’s costs had not been shown to be reasonable. The court did not reach the question of whether the government breached the “force protection” provision of the contract. The burden is on the contractor to establish the reasonableness of its costs; there is no presumption of reasonableness nor any presumption that a contractor is entitled to reimbursement “simply because it incurred . . . costs.”

Oracle America Inc. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2326

Opinion Date: September 2, 2020

Judge: William Curtis Bryson

Areas of Law: Aerospace/Defense, Government & Administrative Law, Government Contracts

The Joint Enterprise Defense Infrastructure Cloud procurement is directed to the long-term provision of enterprise-wide cloud computing services to the Defense Department. Its solicitation contemplated a 10-year indefinite-delivery, indefinite-quantity contract with a single provider. The JEDI solicitation included “gate” provisions that prospective bidders would be required to satisfy, including that the contractor must have at least three existing physical commercial cloud offering data centers within the U.S., separated by at least 150 miles, providing certain offerings that were “FedRAMP Moderate Authorized” at the time of proposal (a reference to a security level). Oracle did not satisfy the FedRAMP Moderate Authorized requirement and filed a pre-bid protest. The Government Accountability Office, Claims Court, and Federal Circuit rejected the protest. Even if Defense violated 10 U.S.C. 2304a by structuring the procurement on a single-award basis, the FedRAMP requirement would have been included in a multiple-award solicitation, so Oracle was not prejudiced by the single-award decision. The FedRAMP requirement “constituted a specification,” not a qualification requirement; the agency structured the procurement as a full and open competition. Satisfying the gate criteria was merely the first step in ensuring that the Department’s time was not wasted on offerors who could not meet its minimum needs. The contracting officer properly exercised her discretion in finding that the individual and organizational conflicts complained of by Oracle did not affect the integrity of the procurement.