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At 1:00 pm (Eastern) on January 30, 2013, Crowell & Moring attorneys Addie Cliffe, Dj Wolff, and J.J. Saulino will conduct a webinar on behalf of L2 Federal Resources entitled “Export Controls, Economic and Trade Sanctions: The Challenges and Risks.” This 90-minute webinar will provide an overview of the two primary sets of regulations governing exports: the Export Administration Regulations (“EAR”), and the International Traffic in Arms Regulations (“ITAR”). It will also cover country-specific and non-country specific regulations to describing implementing economic trade sanctions and embargoes promulgated in the interest of U.S. foreign policy and national security. In addition these regimes, and how they are likely to apply to companies with international supply chains and/or international sales, the webinar will provide practical guidance on steps companies can take to evaluate and minimize risk.

Further details and registration information are available at http://l2federalresources.com/2013/export-controls-economic-and-trade-sanctions-the-challenges-and-risks/.

L2 Federal Resources requires a registration fee for its webinars.

Here they go again. Undeterred by the failure of the EO Survey five years ago, on August 10, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) published an Advance Notice of Proposed Rulemaking (“ANPRM”) soliciting public feedback on development of a new compensation data collection tool.  According to the ANPRM, this data collection is intended to identify “potential problems of compensation discrimination . . . that warrant further review or evaluation by OFCCP . . . as well as to identify and analyze industry trends, Federal contractors’ compensation practices, and potential equal employment related issues.” This latest initiative is consistent with OFCCP’s long-standing focus on compensation issues, and is illustrative of the Agency’s recent aggressive efforts to significantly augment its investigative “toolbox” and broaden the obligations imposed on federal contractors and subcontractors. 

The ANPRM seeks input on a series of fifteen questions that address the types of data to be collected, the manner in which such data would be organized, and the intended uses of the data. The fifteen questions  indicate the OFCCP is considering the following:

  • Collecting data used on a very broad definition of compensation, which could include starting salary, current salary, bonuses, commissions, stock options, shift differentials, paid leave, and health and retirement benefits.
  • Collecting the data on an individualized basis or aggregated by salary grade or band, EEO-1 categories, job groups, or census occupational codes.
  • Using the tool to target specific industries for “industry-focused compensation reviews.”
  • Using the data to conduct nationwide reviews of a contractor’s compensation system, across multiple establishments.
  • Requiring businesses to submit compensation data as part of the initial bidding process for future government contracts to enable OFCCP to better “target[] contractors for post-award compliance”.
  • Expanding the scope of this data collection tool to include construction contractors as well as service and supply contractors.

While it is too early to predict the precise scope and structure of the compensation data collection tool the OFCCP will ultimately adopt, the one sure bet is that this initiative will have a significant impact on the affirmative action reporting obligations of all federal contractors and subcontractors.  We will keep you updated as the OFCCP continues to develop this tool. 

Moving beyond faxes into the digital age, the Court of Federal Claims in Watterson Constr. Co. v. U.S. (Mar. 29, 2011) found that a contractor’s late proposal should be excused when the delay was caused solely by a “mail storm” at the agency which overloaded and slowed down its servers. The contractor had submitted a proposal by email at 11:01 AM in advance of a 12:00 PM submission deadline. The email was “received” by the first of the Army Corps of Engineers’ servers at 11:29 AM. But, after several employees had hit “reply all” to an email sent to a large number of users, the agency’s servers experience a “mail storm” which delayed the transmission of the email from the server to the Contracting Officer’s inbox until 12:04 PM. As a result, despite earning a higher rating and being $2 million cheaper, the contractor’s proposal was rejected for having been untimely.

Judge Braden found the contractor’s untimely submission to be excused in these circumstances on three independent grounds. First, she found that the proposal was not late as it had been “received by the Government’s e-mail servers before the due date,” even if it had not yet reached the CO’s inbox. Second, even if the proposal was late, Judge Braden found unpersuasive both GAO precedent and CFC dicta to find that the FAR’s “government control” exception applied to e-mail proposals, thus excusing the contractor’s late submission. Finally, Judge Braden analogized the “mail storm” to a more traditional weather emergency, finding that it was an “emergency or unanticipated event which interrupts normal Government processes,” thus entitling the contractor to a 1-day extension under the FAR.

This final holding will likely be the most useful for contractors going forward. By demonstrating its willingness to treat network interruptions as legitimate impediments to timely filing, the CFC cracked the door for contractors whose proposals may previously have been barred as untimely.