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!
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 Continue reading Fair Pay and Safe Workplaces Regulations and Executive Orders Are Rescinded
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
Duane Morris special counsel Michael J. Schrier of the firm’s Washington, D.C. office will present on the “Prevailing Wage Requirements in Government Construction Contracts” during the American Bar Association (ABA) Section of Public Contract Law Annual Meeting on Friday, August 5, 2016, in San Francisco, California. Mr. Schrier’s presentation will take place from 7:00 a.m. to 8:30 a.m.
For more information on this program, please see the event listing on DuaneMorris.com.
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
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
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
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
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”
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.