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   Labor Update

In Alutiiq Commercial Enterprise, LLC (Jan. 9, 2020), the Armed Services Board of Contract Appeals held that a contractor is entitled to an equitable adjustment under the Service Contract Act Price Adjustment Clause, FAR 52.222-43, for increased labor costs associated with a new Collective Bargaining Agreement executed after an option period is exercised when the contracting officer failed to provide the 30-day notice required by FAR 22.1010(b), which requires the contracting officer to notify the contractor and the collective bargaining agent in writing of the forthcoming option exercise and the applicable acquisition dates. The Board reached this conclusion despite the fact that the parties exercised the option via a bilateral modification. The Board was unwilling to find that the bilateral modification waived FAR 22.1010(b)’s notice requirement when a clear and unequivocal intention to do so was not present. The dissent stated that the option referred to in “FAR 22.1010, FAR 52.222-43, and FAR 52.217-9 means an option exercised unilaterally” and thus the notice requirement in FAR 22.1010(b) did not apply to the parties’ bilateral modification.

 

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Photo of Nicole Owren-Wiest Nicole Owren-Wiest

Nicole Owren-Wiest is a partner and member of the Steering Committee of Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office. Nicole is nationally ranked by Chambers USA in Government Contracts and a recognized leader in two of the most…

Nicole Owren-Wiest is a partner and member of the Steering Committee of Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office. Nicole is nationally ranked by Chambers USA in Government Contracts and a recognized leader in two of the most complex areas in government contracting: accounting, cost, and pricing, and intellectual property/data rights. With over 20 years’ experience, Nicole has a broad counseling and dispute-resolution practice and leads the Group’s cost accounting practice, which focuses on helping clients navigate the government’s complex cost and pricing rules, including the FAR Part 31 cost principles, the Cost Accounting Standards (CAS), and Truth in Negotiations Act/Truthful Cost or Pricing Data (defective pricing).

Photo of Trina Fairley Barlow Trina Fairley Barlow

Trina Fairley Barlow is co-chair of the firm’s Labor and Employment Group and a member of the firm’s Government Contracts Group. She devotes a substantial portion of her practice to helping government contractors navigate and comply with the myriad laws, regulations, and Executive…

Trina Fairley Barlow is co-chair of the firm’s Labor and Employment Group and a member of the firm’s Government Contracts Group. She devotes a substantial portion of her practice to helping government contractors navigate and comply with the myriad laws, regulations, and Executive Orders which impact employers who are also government contractors. Trina’s experience includes advising federal contractors on the requirements of the Service Contract Act, as well as the Davis Bacon Act, and assisting clients with developing compliance strategies that reduce legal risks. In addition, Trina has defended and advised clients in False Claim Act (FCA) whistleblower retaliation cases and has led large internal investigations that frequently encompass a complex combination of labor and employment, government contracts, and ethics and compliance issues. In connection with such investigations and in other contexts, clients also frequently call upon Trina to assist them with developing compliant policies and internal practices that achieve business objectives while simultaneously reducing potential legal risks and exposure.

Photo of Michelle Coleman Michelle Coleman

Michelle D. Coleman is a partner in Crowell & Moring’s renowned Government Contracts Group in the firm’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and…

Michelle D. Coleman is a partner in Crowell & Moring’s renowned Government Contracts Group in the firm’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and requests for equitable adjustments, terminations, prime-sub disputes, other transaction authority, and AI.

Michelle also has an active pro bono practice, representing clients as an attorney volunteer with the Washington Legal Clinic for the Homeless. Michelle has helped multiple clients receive long term housing through the Rapid Rehousing Program and other permanent voucher programs. In addition to being a volunteer, Michelle serves as an ambassador and as co-chaired the firm’s fundraising campaign for the Clinic for the last two years.

Prior to working at Crowell & Moring, Michelle served as an attorney in the Air Force’s Acquisition Law and Litigation Directorate, where she provided acquisition and litigation risk advice on procurements valued over $14 billion on major Air Force procurements. She also served as a trial attorney in the Air Force Legal Operations Agency, Commercial Law and Litigation Directorate. As a trial attorney, Michelle litigated complex contract disputes before the Armed Services Board of Contract Appeals (ASBCA) and bid protests before the Government Accountability Office (GAO).

As an Air Force litigator, Michelle litigated a broad range of issues before the ASBCA, including organizational conflicts of interest; small business issues; price realism analysis; past performance; NAICS code issues; technical acceptability; nonmanufacturing rule, brand name, or equal issues; construction claims; commercial items; terminations; assignment of claims; reprocurement; limitation of funds; release; differing site conditions; setoffs/withholding; and evidentiary issues. Among the construction cases, Michelle litigated a $28 million Air Force design-build construction claim involving complex differing site conditions and delay issues, and she also litigated and won a claim for alleged defective specifications, undisclosed information, constructive interpretation, and technical impossibility for a contract for the design and construction of an Air Force dynamic break test stand.

Before her Air Force career, Michelle was employed by a defense contractor, where she gained valuable government contract experience in her roles as a business analyst and a subcontracts administrator. Michelle’s government and contractor experience gives her the unique ability to take both parties’ perspectives into consideration when providing advice on government contract issues.