The Department of Labor (“DOL”) recently issued guidance regarding an employer’s obligation under the FLSA to track the number of hours of compensable work performed by employees who are teleworking. Essentially, employers are required to exercise reasonable diligence in monitoring work hours without discouraging employees from reporting their legimate hours worked. Read on to learn our take on this new guidance.
Read MoreA Contracting Officer’s choice of what industry classification (aka NAICS code) applies to a contract can determine whether a business is or is not eligible to compete for a small business set aside contract. It all comes down to the size standards applicable to the chosen category. Read on to learn more about the implications of such classifications and whether you can do something about a bad choice.
Read MoreThe Small Business Adminstration (“SBA”) recently changed the process by which companies can obtain certification as Women-Owned Small Businesses (WOSB) or Economically Disadvantaged Small Businesses (EDWOSB). Self-certification no longer is an option. Here’s what companies need to know to obtain new certifications or to figure out if your current certification might be in jeopardy.
Read MoreMany service contracts require that certain jobs, i.e., “key positions,” be held by highly qualified personnel dedicated to the project. So, what happens if that rock star project manager you spent months recruiting for a “key position” bails out on you in the middle of the competition to win the very contract the rock star was proposed to manage?
Read MoreThe Government is entitled to procure supplies and services that are carefully focused to meet its needs. However, if a solicitation’s terms preclude otherwise qualified companies from competing for the award, then the solicitation might unduly restrict competition.
Read MoreThe Court of Federal Claims sustained the protest of a contractor that argued that the Government could not hire a replacement contractor through the use of an improperly justified sole source acquisition. The Court set aside the new award—a result that likely will require the Government to continue working with a contractor with which it allegedly was dissatisfied. Should an agency have the ability to make a change using a sole source procurement? In the commercial world, feathers might get ruffled, but a jilted vendor wouldn’t be able to get a court to throw out a replacement. In our world, it’s all different.
Read MoreThe blizzard of COVID-19 related contracting activity poses considerable compliance risks. But, federal contractors shouldn’t be discouraged to be a part of our shared national mission to cope with this pandemic—just hurry up and wait long enough to consider how you’re responding under the circumstances. By doing so, hopefully you can avoid the painful question “what were they thinking?”
Read MoreThe COVID-19 pandemic has thrown virtually every routine out the window as the nation struggles to cope with a crisis that defies description. The routines of government contracting likewise are in a state of suspension where agencies and their contractors are struggling to find a new normal. Indeed, every day sees new guidance and directives regarding how to manage in the COVID-19 environment. On Monday (March 30), the Department of Defense released a memo that urges a reasoned approach to addressing these disruptions by making it clear that Contracting Officers are trusted and empowered to make contract adjustments to address these disruptions.
Read MoreWhen it comes to the timing of negotiating and implementing a Collective Bargaining Agreement (“CBA”), the Service Contract Act (“SCA”) can be unforgiving. Contractors must give timely notice of a newly-minted CBA if they want a price adjustment for the increased costs of SCA compliance under the CBA. A recent decision from the Armed Services Board of Contract Appeals (“ASBCA”) reminds us that there is a vital prerequisite to this general rule: the Government has its own notice obligations.
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A dispute over the obligation to deliver replacement batteries for golf carts illustrates how years of contract performance can create confusion (and discord) over what happens at the end of a contract.
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In tennis, foot faults are minor, yet sometimes game changing, errors. Three recent bid protest decisions demonstrate how seemingly technical glitches in the presentation of key personnel qualifications created potentially insurmountable errors.
Read MoreThe GAO recently found that a contract modification was so far outside the scope of a contract that it should have been the subject of a new procurement. Read on to learn what happened and what to consider when a contract is significantly modified such that it almost seems like a whole new beast.
Read MoreYou just won a contract. You brought that brilliant project manager on board. Then, your competitor files a protest and you have to stop work. What do you do to keep that manager in the stable? A recent case at the Armed Services Board of Contract Appeals denied a contractor the cost of doing something quite reasonable—keeping the manager on board.
Read MoreDOJ has issued guidance about how trade secrets and commercial or financial information should be treated under new Supreme Court precedent interpreting the Freedom of Information Act. This guidance hopefully will achieve the Court’s “fair reading” of the term “confidential” when it comes to determining whether information should be exempt from FOIA disclosures.
Read MoreOrdinarily, a service contractor has the duty to compare the employee positions that will be providing service under a contract with an applicable SCA wage determination so as to ascertain how much the employees should be paid and what benefits they receive. In a recent case, the Civilian Board of Contract Appeals held that that is not always the case.
Read MoreResponding to Department of Labor investigations is not a simple exercise. While you are required to cooperate, provide documents and access to employees, you are not obligated to accept an investigator’s findings and you can question them. But, before you push back, be thoughtful. And,don’t forget to check the math.
Read MoreTeaming arrangements provide great opportunities to corral the expertise and experience of two or more organizations to pursue federal contracts. A recent case illustrates how technicalities can hinder an otherwise qualified team.
Read MoreLast fall, the Supreme Court held in Encino Motorcars LLC v. Navarro that statutes should not be construed so as to achieve perceived legislative goals where there is no “textual reason” why they should be given anything other than a “fair reading.” My colleagues and I wondered whether the “fair reading” concept might show up again. Well, it did. Enter Food Marketing Institute v. Argus Leader Media.
Read MoreFederal contractors frequently face the release of their confidential information as a result of requests for information under the Freedom of Information Act (FOIA). On the surface, FOIA exemption 4 should protect such information from disclosure. However, long-standing precedent required contractors to establish they would suffer substantial competitive harm if their information was released. The Supreme Court today handed down a game-changing decision that could greatly simplify contractors’ efforts to keep their sensitive information secure from disclosure.
Read MoreThe Government usually is a good customer that pays its bills, except when it doesn’t. Can a contractor pursue a claim for an unpaid invoice? It will depend on whether the government had a reasonable time to review and pay the invoice.
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