Government Contracts Legal Forum

June 1, 2015 OFPP Memorandum “Effective Use of Reverse Auctions”

Posted in Legal Developments
Dalal Hasan

On June 1, 2015, the Office of Federal Procurement Policy (“OFPP”) released a Memorandum for Chief Acquisition Officers and Senior Procurement Executives to provide guidance on “Effective Use of Reverse Auctions.”[1] Reverse auctions are a web-based procurement tool that allows sellers to compete with successively lower bids to obtain awards for products and services. Although the use of reverse auctions by contracting agencies has been steadily increasing (nearly tripling from 7,193 actions to 19,688 between FY 2008 and FY 2012, reaching a value of $828 million), the tool is not currently addressed under the Federal Acquisition Regulations (“FAR”). A December 2013 Government Accountability Office (“GAO”) report highlighted the growing trend in use of this tool and called upon OFPP to issue comprehensive government-wide guidance.[2] In response, OFPP’s June 1, 2015 memorandum provided a set of “reminders” to help contracting officers maximize the potential benefits of this tool.

This article briefly explains how reverse auctions work, identifies trends in use, and summarizes highlights of OFPP’s recommendations that may impact future use of reverse auctions.

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Join Crowell & Moring for a Webinar on the New “Fair Pay and Safe Workplaces” Proposed Rule and Guidance

Posted in Employment, Ethics & Compliance, Labor, Reporting and Disclosure, Responsibility, Small Business
Angela B. StylesKris D. MeadeSteve McBradyRebecca SpringerJason M. Crawford

Please join us on Wednesday, June 10, 2015, from 1:00 p.m. – 2:00 p.m., as Crowell & Moring presents the webinar, “Fair Pay and Safe Workplaces Proposed Rule and Guidance: What You Need to Know.”

On May 28, 2015, the Obama Administration published the highly-anticipated proposed FAR rule and proposed DOL guidance implementing the Fair Pay and Safe Workplaces Executive Order (EO).  The proposed rule and guidance trigger a 60-day public comment period and provide details as to the onerous compliance and reporting burdens that contractors and subcontractors will face after final rulemaking. Implementing what is often referred to as the “Blacklisting” EO, the new rule and guidance – if implemented – will inject subjectivity into the contract award process, as “Agency Labor Compliance Advisors” make recommendations to contracting officers with respect to responsibility determinations, based on new and ambiguous standards set forth in the proposed guidance.

A panel of Crowell & Moring attorneys with experience in government contracts and employment law will discuss key elements of the proposed rule and guidance, including:

  • The applicability and implementation of “Fair Pay Safe Workplaces”
  • The “labor law violation” disclosure process
  • Analysis of the rule’s effect upon responsibility determination
  • The three categories of violations that can trigger a negative responsibility finding, including “administrative merits determinations” that are reached before a hearing on the merits

We hope you can join us as we discuss these issues and more during next week’s webinar.

Obama Administration Issues Proposed Rule and Guidance for Implementing “Fair Pay and Safe Workplaces”

Posted in Employment, Labor
Angela B. StylesKris D. MeadeSteve McBradyRebecca SpringerJason M. Crawford

On May 28, 2015, the Obama Administration published the highly-anticipated Proposed Rule and Proposed Guidance implementing the “Fair Pay and Safe Workplaces” Executive Order, (E.O.) which President Obama issued on July 31, 2014. The proposed rule adds a new subpart to the Federal Acquisition Regulations (FAR) – subpart 22.20 “Fair Pay and Safe Workplaces” – which “incorporate[s]” proposed guidance issued by the Department of Labor (DOL) titled “Guidance for Executive Order 13673, ‘Fair Pay and Safe Workplaces.’ ” (“Proposed Guidance”). These regulations will not take effect until the final rule and final guidance are issued, but the proposed rule and guidance trigger a 60-day period to comment on the proposed rule and guidance, and offer insight into the onerous compliance and reporting burdens that contractors and subcontractors will face under the Proposed Rule. Below is a summary of several key provisions.

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Crowell & Moring Launches Whistleblower Watch Blog

Posted in False Claims, Labor
Jason C. Lynch

Earlier this year, Crowell & Moring assembled an interdisciplinary team of attorneys to begin reporting on legal developments regarding whistleblowers. The result is the Whistleblower Watch blog (, on which more than 15 contributing authors post about everything from the False Claims Act to Sarbanes-Oxley to the SEC. They monitor legislation and case law at the federal and state levels, and keep tabs on agency actions that affect whistleblowers and their employers.

We hope you will find Whistleblower Watch a valuable resource as you navigate the complex areas of whistleblower law. You can also follow the blog’s updates on Twitter: @CMWhistleblower.

OOPS 2015 Conference – Registration is Now Open!

Posted in Claims, Cybersecurity, Ethics & Compliance, Intellectual Property, Legal Developments
Adelicia R. Cliffe

Congress v. White House – who will win the fight?  As they duke it out on policies and legislation that will impact government contractors, our legal team will help you identify vulnerabilities as well as possible opportunities.  We will cover a variety of topics, including:

  • The New Fair Pay and Safe Workplaces Executive Order
  • Developments and trends for contractor claims and terminations
  • The changing landscape of internal investigations
  • Protecting your intellectual property
  • Cybersecurity risk management
  • And so much more!

Our keynote speaker will be Professor Steven Schooner who will discuss “ A Decade of Ethics Scandals.”

Two dates and locations:
Washington, DC on May 5-6 (for information and registration, click here)
Marina del Rey, CA on May 14 (for information and registration, click here)

Obama Administration Mandates New Federal Agency Sustainability Objectives

Posted in Legal Developments
Cameron PrellSteve McBradyPeter J. EyreMatthew B. Welling

Federal agencies (and their government contractors) are about to embark on a second generation of sustainability upgrades to federal government facilities, procurement and operations.  On March 19, 2015, President Obama released an executive order titled “Planning for Federal Sustainability in the Next Decade” (“EO”).  The EO establishes next generation greenhouse gas (GHG) reduction and sustainability targets and mandates that agencies develop plans to deploy clean energy and resource efficiency measures to improve resilience and environmental performance throughout their supply chains.  The EO mandates the establishment of a new Chief Sustainability Officer for each agency charged with overseeing implementation and compliance with EO.  The 7 largest federal procuring agencies will also be required to submit a plan to implement at least five new procurements each year that will include requirements considering government contractor GHG profiles and management practices.

Climate Risk Management.  Within 90 days of the EO (approximately June 16th), the head of each federal agency must propose agency-wide, 2025 GHG emission reduction plans for scope 1 (direct greenhouse gas emissions from sources owned controlled by the agency), scope 2 (direct greenhouse gas emissions resulting from the generation of electricity, heat, or steam purchased by the agency) and scope 3 (greenhouse gas emissions from sources not owned by the agency but related to agency activities, including vendor supply chains).  The targets will not include emissions from certain vehicles and equipment, and electric energy generation produced and sold commercially to other parties as the primary business of the agency. Continue Reading

C&M Joins Forces With the Litigation and Government Contracts Forums at ACC National Capital Region for April Forum on Sponsored Claims

Posted in Claims
Steve McBradySkye MathiesonJason M. Crawford

On April 8, Crowell & Moring lawyers will present “The World of Sponsored Claims – Being Caught in the Middle,” at a forum hosted by the Association of Corporate Counsel of the National Capital Region.  This forum will be of interest to prime contractors and subcontractors alike, and will focus on some of the key considerations that companies face with respect to litigating a sponsored claim.  Join us for a lively discussion, CLE credit, and a refresher on the jurisdictional and practical elements of a sponsored claim from the prime and subcontractor perspective.

ACC members and other in-house counsel can click here to register for the webcast or to attend in-person. Clients of Crowell & Moring who are interested in attending, please contact Dean Mosones at for complimentary registration.

GSA Announces Changes in its Contractor Assistance Visits

Posted in GSA Schedule
Angela B. StylesAlan W. H. GourleyAdelicia R. CliffeOlivia Lynch

The General Services Administration (“GSA”) is rolling out two modifications to its Contractor Assistance Visits (“CAVs”), in-person or virtual meetings between GSA’s Industrial Operations Analysts (“IOAs”) and GSA Schedule holders to assess compliance, identify potential problems, and test the contractor’s system controls and processes.  Tom Brady, the Director of the Supplier Management Division, GSA Office of Acquisition Management, presented on these changes during The Coalition for Government Procurement’s webinar on March 12, 2015.

First, GSA will no longer grade contractors on report cards.  GSA’s current practice is to issue a MAS Administrative Report Card following each CAV.  This grade was supposed to reflect how well a contractor was complying with its contract’s terms and conditions.  But contractors had expressed concern that some interpreted the grade more generally to contract performance.  In response to this concern, GSA will discontinue grading its contractors on report cards (and relatedly, commits to providing contractors feedback from the CAV more expeditiously). Continue Reading

OMB and DoL Direct Agencies to Appoint Labor Compliance Advisors Pursuant to “Fair Pay” EO

Posted in Employment, Ethics & Compliance, Labor, Responsibility, Suspension & Debarment
Steve McBradyAngela B. StylesKris D. MeadeJason M. Crawford

On March 5, OMB and DoL circulated a Memorandum to federal agencies regarding the “Fair Pay and Safe Workplaces” Executive Order (previously discussed here, and here), providing “guidance” with respect to the Labor Compliance Advisor role created by the EO, and directing agencies to designate within 90 days a senior-level official to serve as LCA.  The memo, which reiterates the troubling scope and nature of the new position (i.e., “providing assistance to contracting officers” during the procurement process, “advising … contracting officers and other agency officials regarding recommended actions to be taken in response to labor law violations,” and “sending any relevant information to suspending and debarring officials”), also states that GSA will create a new web site for the labor compliance reporting requirements identified in the EO, and indicates that FAR Council regulatory action and additional DoL guidance will be forthcoming.

Contractor Logs Victory in Termination Case at Federal Circuit

Posted in Legal Developments
Steve McBradyBrian T. McLaughlin

In EM Logging v. Department of Agriculture, 2014-1227 (Feb. 20, 2015), the Federal Circuit reversed the Civilian Board of Contract Appeals, holding that substantial evidence did not support the Board’s conclusion that the US Forest Service had properly terminated a timber sale contract for the Kootenai National Forest in Northern Montana for “flagrant disregard” of the terms of the contract.  On appeal, the court found that the record supported only four instances of route deviation, load limit violations, or delayed notifications, and held that the contractor’s actions did not justify termination because termination for “flagrant disregard” must be “predicated on more than technical breaches of minor contract provisions or isolated breaches of material contract provisions which caused no damage.”