The final year of the Obama Administration has seen a flurry of activity that will affect the government contracting community. Appearing on WJLA’s Government Matters program (available here at govtmatters.tv), Crowell & Moring Chair Angela Styles discussed some of the latest changes that will impact industry including the GSA’s final rule on transactional
Fair Pay & Safe Workplaces
Importance of Disclosures and Cooperation During and After Internal Investigations
The rules, regulations, and incentives for government contractors facing investigations (whether internal or external) have changed dramatically in the last year. From the new demands of the “Yates Memorandum” to the Fair Pay & Safe Workplaces proposed rule to the shift from exclusion-driven interactions with Suspending and Debarring Officials (SDOs) to show cause letter and…
Preparing for Fair Pay & Safe Workplaces — Previewing Violation and Remediation Information with the Government
By now, government contractors are largely aware of the information gathering and reporting requirements of the Fair Pay & Safe Workplaces Proposed Rule (“Fair Pay”), but whether and how to package the information proactively for the government has received less attention. Contractors would also be well served to consider their messaging and outreach efforts in proposals and, if necessary, in meetings with Suspending and Debarring Officials (SDOs) before the Fair Pay final rule issues or shortly after its effective date.
Assuming the final Fair Pay rule to be issued later this Spring mirrors the proposed rule, it will require disclosure of a variety of adverse findings, including “administrative merits determination,” “arbitral award or decision,” or “civil judgment” decisions rendered against the contractor within the preceding three-year period for violations of 14 enumerated federal labor laws and “equivalent state laws.” Multiple disclosures are necessary before award and every six months during contract performance. Gathering and reporting this information is a Herculean task and has consumed significant legal department time in recent months. But legal departments should also consider how the government will use the information, and whether proactive outreach and messaging to government customers is also necessary to protect the company.
After the government receives Fair Pay disclosures, the contracting officer will request analysis from a new category of official – a labor compliance advisor – who will focus on whether the violations are serious, repeated, willful, or pervasive. The contracting officer can then decide whether to award a contract, exercise an option, terminate a contract, or refer the matter to the agency SDO.
There are three federal officials of note who will interact with a contractor’s history of labor violations: the contracting officer, the labor compliance advisor, and the SDO. Two of those officials – the contracting officer and the SDO – can materially, directly, and detrimentally impact the contractor. So contractors should be considering how to shape their communications and disclosures to address the needs of both of these officials.
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