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

Army’s Market Research On Commercial Waste Contractors Is “Garbage” And Solicitation Is “Thrown Out”

Garbage in, garbage out. That was essentially the U.S. Government Accountability Office’s (“GAO”) opinion of the Army’s market research in a commercial items procurement for solid waste management services when sustaining a contractor’s pre-award protest in Red River Waste Solutions, LP, B-411760.2 (Jan. 20, 2016). Continue reading Army’s Market Research On Commercial Waste Contractors Is “Garbage” And Solicitation Is “Thrown Out”

Proposed Regulations Attempt To Bar Contractor Employee Internal Confidentiality Agreements

On January 22, 2016, the FAR Council promulgated proposed regulations that prohibit contractors and subcontractors from contractually barring their employees and subcontractors from reporting fraud, waste, or abuse to federal authorities concerning nonclassified information or programs. Continue reading Proposed Regulations Attempt To Bar Contractor Employee Internal Confidentiality Agreements

Government Contractors Do Not Enjoy “Governmental Immunity” When They Violate Both Federal Law And Explicit Government Instructions

Government contractors, while performing work under their federal contracts, may enjoy a form of “derivative sovereign immunity” from private litigation provided certain prerequisites are met. However, as explained in a recent Supreme Court case, no immunity may be had from suits by allegedly injured third parties when “a contractor violates both federal law and the Government’s explicit instructions.” Continue reading Government Contractors Do Not Enjoy “Governmental Immunity” When They Violate Both Federal Law And Explicit Government Instructions

File Your VETS 4212 Forms

On December 7, 2015, the FAR Council issued a new interim rule requiring federal contractors covered by the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) to file VETS 4212 forms instead of the old VETS 100 or VETS 100A forms. The interim rule takes effect on February 26, 2016 and applies to all federal contracts and contract modifications issued after that date.

In September 2014, the U.S. Department of Labor rewrote the VEVRAA compliance requirements when it rescinded 41 C.F.R. Part 61-250 and replaced it with the new 41 C.F.R. Part 61-300. Among the changes in the new Part 61-300 was to replace the old VETS 100 and VETS 100A forms with a new VETS 4212 form.

The FAR Council’s recent interim rule updates the FAR (particularly Subparts 22.13 and Part 52) to reflect the new VEVRAA compliance requirements adopted by the Department of Labor back in 2014. Of particular note, the interim rule states:

Except for contracts for commercial items or contracts that do not exceed the simplified acquisition threshold, contracting officers must not obligate or expend funds appropriate for the agency for a fiscal year to enter into a contract for the procurement of personal property and nonpersonal services (including construction) with a contractor that has not submitted the required annual VETS-4212, Federal Contractor Veterans’ Employment Report (VETS -4242 Report), with respect to the preceding fiscal year if the contractor was subject to the reporting requirements of 38 U.S.C. 4212(d) for that fiscal year.

80 Fed. Reg. 75910 (amended and interim 48 C.F.R. 22.1302(b)).

So, if you haven’t already made the switch and your company is required to comply with VEVRAA, be sure to file the required VETS-4242 form this year.

Supreme Court Review of Bid Protest?

This Friday, May 1, 2015, the government is expected to submit its response to the petition for certiorari filed by Kingdomware Technologies, Inc., which seeks to reverse the Federal Circuit’s 2-1 ruling that the VA may use FSS without considering available VOSBs and/or SDVOSBs to fulfill the requirement.  Please click here for a fantastic summary of the issues drafted by  Duane Morris appellate counsel Luke McLoughlin and Kristina Caggiano.