Government Contracts Legal Forum

Claims Practice Bulletin: Board Sides With Contractor on CDA Jurisdictional Issue

Posted in Claims
Steve McBradySkye Mathieson

In Appeals of LRV Environmental, Inc., the ASBCA considered the issue of whether or not the Government’s “reconsideration” of a contracting officer’s final decision acts to re-set the 90-day clock for jurisdictional purposes under the CDA.  In LRV, the CO issued a final decision, and subsequently reconsidered a portion of that decision, leading the Board to conclude that “the decision was not truly final” and that “[w]hile there are no procedures set forth in the CDA for reconsideration of a decision, it is a well established principle that an administrative agency may reconsider its own decisions,” so the contractor’s 90-day appeal window as to the reconsidered claim runs from the latter decision.

 

(This post is part of the Claims series on the Government Contracts Legal Forum – have a question or an idea for a future topic? E-mail us at smcbrady@crowell.com and smathieson@crowell.com.)

Congressional Committee Chairs Request that OFPP and DoL Withdraw “Fair Pay” Proposed Rule and Guidance

Posted in Employment, Labor
Steve McBradyKris D. MeadePeter J. EyreJason M. Crawford

On July 15, 2015, the Chairmen of the House committees of jurisdiction sent a letter to Labor Secretary Tom Perez and OFPP Administrator Anne Rung regarding the “Fair Pay and Safe Workplaces” Proposed Rule and Guidance.  Citing the myriad legal, procedural and substantive flaws in the EO and resulting Proposed Rule and Guidance (previously discussed here), the letter requests that the agencies withdraw the Proposed Rule and Guidance, or, at a minimum, extend the public comment period by an additional 90 days beyond the current August 11, 2015 deadline.  The letter, signed by 8 Committee and Subcommittee Chairmen, is available here.

FAR Council and DOL Extend “Fair Pay and Safe Workplaces” Comment Period

Posted in Employment, Ethics & Compliance, Labor, Legal Developments, Reporting and Disclosure, Small Business
Angela B. StylesSteve McBradyKris D. MeadeJason M. CrawfordGlenn D. Grant

In response to several requests from industry to extend the a 60-day comment period for the proposed rulemaking (NPRM) and guidance implementing the “Fair Pay and Safe Workplaces Executive Order,” the FAR Council and the DoL have extended the comment period to August 11, 2015 (from the current date of July 27, 2015). As discussed previously here, the NPRM and related DOL guidance (available by PDF here and here and explained in more detail on our government contracts blog) would add onerous labor compliance reporting requirements for all contractors and subcontractors on contracts valued over $500,000 (and on non-COTS subcontracts valued over $500,000) and inject uncertainty and subjectivity into the procurement process through the addition of “Agency Labor Compliance Advisors” advising the CO with respect to responsibility determinations based upon a review of the contractor or subcontractor’s labor compliance data over a 3-year period, which has prompted many contractors and trade associations to express their concerns about the scope and potential impacts of the Proposed Rule and Guidance.

Bad News for Contractors: ASBCA Decision Bars Offsets of Simultaneous Accounting Changes Under FAR 30.606

Posted in Claims, Cost Accounting
Terry L. AlbertsonSteve McBradySkye Mathieson

In Raytheon Co., ASBCA Nos. 57801 et al. (May 7, 2015), the Board held that under FAR 30.606 contractors may not offset cost impacts from simultaneous accounting changes within the same business segment, which if not reversed on appeal will cause major disruptions when contractors make multiple changes in cost accounting practices made after 2005 (the date of the FAR change), effectively giving the Government the benefit of decreased costs without offsetting them against increased costs of simultaneous accounting changes.  The Board decision ignores the language of CAS 9903.306(b)-(c), which states that when there is a change in accounting practice the Government should not pay more than the “contract costs, price, or profit” that “would have been agreed to” had the accounting changes been known, which would logically include all simultaneous changes, not just changes that decrease the costs.

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 (whistleblowerwatch.com), 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