All posts by Michael J. Schrier

Have a VA contract responsive to COVID-19? Ask your Contracting Officer for FAR 52.250-1 Indemnity!

By Matt Freeman  and Michael Schrier

On April 10, President Trump invoked his authority under 50 U.S.C. 1431 et seq. to authorize the VA to indemnify contractors “with regard to transactions directly responsive to the COVID-19 national emergency.”  This statutory authority may provide FAR 52.250-1 contractual indemnity protection for VA contractors against insurance coverage gaps related to COVID-19.

Contractors manufacturing or distributing PPE, testing kits, medical treatments, and ventilators for the government may already receive legal protection from the Public Readiness and Emergency Preparedness (PREP) Act.  The President’s order, however, may protect VA contractors providing other goods and services not currently eligible for PREP Act protection.  The broad language of the President’s April 10th memo may provide contractual indemnity from the federal government concerning any COVID-19 related work for the VA.

In order to request COVID-19 related contractual indemnity for goods or services provided to the VA – either in a new contract or through a contract modification – contractors must identify insurance gaps, provide required information, and submit a request to the contracting officer under FAR Part 50.  If approved, the contracting officer will incorporate FAR Clause 52.250-1 (Indemnification under Public Law 85-804) into the contract.  It is also possible that a prime contractor may, with prior written approval from the Contracting Officer, provide FAR 52.250-1 indemnification to its subcontractors. Continue reading Have a VA contract responsive to COVID-19? Ask your Contracting Officer for FAR 52.250-1 Indemnity!

Fair Pay and Safe Workplaces Regulations and Executive Orders Are Rescinded

On March 27, 2017, President Trump took two coordinated actions to permanently eliminate the Fair Pay and Safe Workplaces (“FPSW”) regulations promulgated last summer and the underlying Executive Orders. Continue reading Fair Pay and Safe Workplaces Regulations and Executive Orders Are Rescinded

Portions of Fair Pay and Safe Workplaces Regulations and Guidance Preliminarily Enjoined

On October 24, 2016, the mandatory disclosure and arbitration provisions of the Fair Pay and Safe Workplaces (“FPSW”) Regulations and Guidance were preliminarily enjoined by the United States District Court for the Eastern District of Texas in Associated Builders and Contractors of Southeast Texas v. Rung, No. 1:16-cv-425-MAC. The paycheck transparency provisions remain, unaltered and in full force effective January 1, 2017. Continue reading Portions of Fair Pay and Safe Workplaces Regulations and Guidance Preliminarily Enjoined

Federal Contractor Minimum Wage Rises to $10.20

Effective January 1, 2017, the minimum wage to be paid to workers performing work on or in connection with Federal contracts covered by Executive Order 13658 will be $10.20 per hour.  The U.S. Department of Labor announced the increase in the federal contractor minimum wage in today’s Federal RegisterContinue reading Federal Contractor Minimum Wage Rises to $10.20

Fair Pay and Safe Workplaces Final Rule and Final Guidance to be Published Tomorrow

Today, the FAR Council and the Department of Labor issued final regulations and final guidance implementing Executive Order 13673 – Fair Pay and Safe Workplaces. https://www.dol.gov/newsroom/releases/opa/opa20160824  The interlocking final regulations and final guidance, with an effective date of October 25, 2016, impose new requirements on federal contractors and subcontractors, including:

  • Contractors, when bidding on new federal contracts valued at more than $500,000, will be required to disclose a three year look-back of all “labor law violations” (involving defined administrative merits determinations, civil judgments, and arbitral awards) arising under 14 different federal statutes and comparable state laws to the contracting officer. The contracting officer, with the assistance of a newly created Agency Labor Compliance Advisors, will review the labor law violations, determine whether the violations are serious, repeated, willful, or pervasive, and based on those determinations, decide whether the contractor is “responsible” enough to be awarded a federal contract.
  • Subcontractors, with subcontracts worth more than $500,000, will be required to make similar three year look-back disclosures of labor law violations to the U.S. Department of Labor for that federal agency to make a determination as to whether the subcontractor’s history of labor law violations are serious, repeated, willful, or pervasive.  The prime contractor is then required to making its own decision as to whether its subcontractors are “responsible” based on the Department of Labor’s determinations.
  • Contractors and subcontractors with serious, repeated, willful, or pervasive labor law violations may be required to enter into labor compliance agreements – either before or after contract award – with designated federal agencies to mitigate or remediate histories of non-compliance as a condition to being deemed “responsible” to receive a federal contract or subcontract.

There are also new requirements concerning (1) Paycheck Transparency (what information must be listed on an employee’s or independent contractor’s paycheck); and (2) prohibitions on the use of arbitration to resolve employee claims unless the employee and contractor agree to use arbitration after the employee has a claim (effectively negating many pre-employment or company-wide arbitration agreements and plans).

The regulatory requirements outlined above have varied phase in periods, beginning October 25, 2016 through October 25, 2017.  The final regulations and guidance will be published in tomorrow’s Federal Register.

We will be issuing a comprehensive Alert, with a more detailed analysis of this intricate and complicated regulatory scheme, soon.

Department of Labor’s Expansive Interpretation Of The Davis-Bacon Act Is Struck Down

In District of Columbia v. Department of Labor, No. 14-5132 (D.C. Cir. April 5, 2016), the U.S. Court of Appeals for the District of Columbia Circuit struck down the U.S. Department of Labor Administrative Review Board’s overly expansive and unsupported interpretation of that statute as applied to the construction of a private high end commercial, retail, and residential project on land leased from the D.C. Government. The D.C. Circuit, applying the plain language of the statute that mandates prevailing wages for construction workers on government projects, stated that in order for the Davis-Bacon Act to apply there must be (1) a construction contract entered into by the District of Columbia or the United States Government involving (2) a public work. Continue reading Department of Labor’s Expansive Interpretation Of The Davis-Bacon Act Is Struck Down

Protective Legends On Proprietary Data: Use Them Or “Waive” Your Rights Goodbye

On the one hand, federal contractors must always be judicious in what data they mark as “Proprietary” under applicable data rights FAR clauses. If contractors over-designate data as “proprietary”, the Government may be able to disregard those designations. See 48 C.F.R. § 52.227-14(e). On the other hand, data “delivered to the Government without any restrictive markings shall be deemed to have been furnished with unlimited rights.” 48 C.F.R. § 52.227-14(f)(1).  DynCorp International, LLC v. United States, No. 15-1397C (March 7, 2016), a recent U.S. Court of Federal Claims decision, provides a practical example of the perils of not designating certain profit and pricing data as “proprietary.” Continue reading Protective Legends On Proprietary Data: Use Them Or “Waive” Your Rights Goodbye

Establishing Paid Sick Leave for Federal Contractors: New Proposed Regulations

On February 25, 2016, the U.S. Department of Labor published a Notice of Proposed Rulemaking implementing Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors. The proposed rule (Proposed 29 C.F.R. Part 13) creates an employee right – for both hourly and salaried employees – to accrue and use paid sick leave while working on federal contracts. The proposed rule also imposes a complex regulatory scheme, with new federal contracting clauses created by the Department of Labor, on contractors to enforce the newly created employee rights. The salient points of the proposed rule are as follows: Continue reading Establishing Paid Sick Leave for Federal Contractors: New Proposed Regulations

Properly E-mailed Proposal That Never Made It To The Contracting Officer’s Inbox Found Timely Submitted Under Government Control Exception

Government contractors know to follow the instructions in solicitations, particularly instructions about when and how to timely submit proposals. But, what happens if the contractor follows the solicitation’s instructions to the letter and sends its proposal via e-mail to a government e-mail address but the proposal is rejected by the second in a chain of government servers before reaching the appropriate government e-mail inbox? According to the U.S. Court of Federal Claims (“COFC”) (and coming the opposite conclusion of the U.S. Government Accountability Office (“GAO”) on the same bid protest), the Government Control exception under FAR § 52.215-1(c)(3)(ii)(A)(2) applies and the improperly rejected proposal must be considered timely. Continue reading Properly E-mailed Proposal That Never Made It To The Contracting Officer’s Inbox Found Timely Submitted Under Government Control Exception

Protest Sustained In Impaired Objectivity OCI Case Involving Development Of VA Mobile Apps

As the U.S. Government Accountability Office (“GAO”) recently explained, “[a]n impaired objectivity [organizational conflict of interest] OCI . . . arises [under FAR subpart 9.5] when a firm’s ability to render impartial advice to the government would be undermined by the firm’s competing interests. The concern in such impaired objectivity situations is that a firm’s ability to render impartial advice to the government will be undermined by its relationship to the product or service being evaluated.”  (citations omitted). Continue reading Protest Sustained In Impaired Objectivity OCI Case Involving Development Of VA Mobile Apps