The Department of Justice (DOJ) under the Trump administration issued a new memo limiting the use of agency guidance documents in affirmative civil enforcement cases. The memo aligns with the administration's movement to limit agency guidance documents under its broader goal of decreasing regulation.

The memo, issued on January 25, 2018, by the Office of the Associate Attorney General, instructs the DOJ to cease its reliance on agency guidance documents to establish violations of regulations or statutes in civil enforcement cases. The memo specifically states "[g]uidance documents cannot create binding requirements that do not already exist." While agencies under the DOJ may continue to use agency guidance documents "for proper purposes," such as explaining or paraphrasing legal mandates from existing states/regulations, the DOJ may not "treat a party's noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation."

The effect on contractors is that they will no longer be automatically liable for noncompliance with agency guidance, reducing liability in civil enforcement cases. For example, agency guidance is sometimes used in False Claims Act suits to support the government's argument that a contractor's claims were false because they did not comply with agency guidance. This change will limit the government's ability to use agency guidance in support of False Claims Act suits.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.