Government Contracts Legal Forum

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 dmosones@crowell.com 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.”

DCAA Issues (Mis)Guidance on Expressly Unallowable Costs

Posted in Cost Accounting
Terry L. AlbertsonSteve McBradySkye Mathieson

On January 7, 2015, DCAA issued guidance to auditors for determining whether certain costs are “expressly unallowable” – and therefore subject to penalties – even when the regulations “do not state in direct terms that the cost is unallowable.” This guidance, which is intended to “enhance” the equally troubling December 18 guidance to similar effect, is inconsistent with the CAS 405 definition of “expressly unallowable cost” (i.e., “a particular item or type of cost which, under the express provisions of an applicable law, regulation, or contract, is specifically named and stated to be unallowable“) and will likely lead to confusion in the audit process and undoubtedly result in DCAA auditors assessing more penalties against contractors on dubious grounds.

Federal Circuit Permits Contractor to Add New Claim to Pending Complaint

Posted in Claims
Government Contracts Legal ForumSteve McBrady

On February 12, 2015, the Federal Circuit issued an opinion in K-CON Building Systems, Inc. v. United States, addressing jurisdiction over contractor claims under the Contract Disputes Act (“CDA”).

Specifically, K-CON Building Systems explores the implications of claim identification, and whether a contractor can add a new claim to a pending matter when the new claim seeks a different remedy or is based upon a different legal theory.  In this case, K-CON Building Systems, Inc. (“K-CON”) contracted with the federal government to construct a “cutter support team building” for the U.S. Coast Guard.  The contract included a liquidated damages clause and obligated K-CON to pay $589 for each day of delay.  When K-CON completed the building 186 days after the contract’s completion date, the Coast Guard withheld $109,554 in liquidated damages due to alleged delay. Continue Reading

Cyber Executive Order Continues the Push for Public-Private Partnerships

Posted in Cybersecurity, Homeland Security, Legal Developments, Public-Private Partnerships
Evan D. WolffPeter B. MillerMaida Oringher LernerKate M. Growley

In conjunction with his remarks at the White House Summit on Cybersecurity at Stanford University earlier this month, President Obama signed Executive Order 13691, entitled “Promoting Private Sector Cybersecurity Information Sharing.”  Published in the Federal Register last week, the Order is intended to encourage and facilitate cybersecurity information sharing within the private sector, and also between government and the private sector.  The Order emphasizes that, because a large majority of the nation’s critical infrastructure is privately owned, cybersecurity is necessarily a shared public-private mission.  At the same time, however, it also recognizes that cybersecurity must balance the exigency of security against the privacy and civil liberties of the American people.

For a complete summary of the Order and its implications, continue reading here.

U.S. Access Board Proposes Update to Section 508 Standards

Posted in Legal Developments
Olivia Lynch

On February 18, 2015, the Architectural and Transportation Barriers Compliance Board (“Access Board”) released a proposed rule revising and updating the standards for electronic and information technology developed, procured, maintained, or used by federal agencies covered by section 508 of the Rehabilitation Act of 1973.

Why Section 508 of the Rehabilitation Act Matters to Contractors

Section 508 of the Rehabilitation Act of 1973, as amended, requires federal agencies to make their electronic and information technology (“EIT”) accessible to individuals with disabilities.  Specifically, Section 508 mandates that federal agencies develop, procure, maintain or use EIT in a manner that ensures (1) federal employees with disabilities have comparable access to and use of information and data relative to other federal employees, and (2) that members of the public with disabilities have comparable access to publicly-available information and services – except when either would impose an undue burden on the agency. Continue Reading