The relationship between gig economy businesses such as Uber and Lyft and the people who do their work has come under considerable scrutiny as state and local governments have struggled over whether their wage and hour laws should apply to gig economy workers. But what happens to gig businesses if they have federal contracts? Will their workers be entitled to prevailing wages and benefits? Well—perhaps yes.
Read MoreWe’ve all heard the old adage that a deal’s a deal. The Armed Services Board of Contract Appeals recently demonstrated how this adage can cost a federal contractor a fair chunk of change when it comes to the cost of increasing wages owed to service contract employees—especially for work performed overseas. Bottom line - carefully determine what your contract requires for service employee wages and benefits. Then, make sure your proposal meets those requirements and ensure that you’re protected from the shock of increased costs.
Read MoreFor many who are working remotely, it feels like decades since they’ve strolled down to the break room where they can view many notices required by various employment laws such as the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), the Service Contract Act (“SCA”), and the Employee Polygraph Protection Act (“EPPA”). A recent bulletin issued by the Department of Labor provides much needed guidance about how employers may use electronic posting to fulfill their posting obligations in the remote working world.
Read MoreThe canon of bid protest decisions is littered with many, many cases in which the Government rejected a proposal due to a technical glitch. A recent decision issued by the Government Accountability Office (“GAO”) demonstrates, once again, that little things can consign a proposal to the waste bin.
Read MoreThe triangular relationship between the Government, prime contractors, and their subcontractors provides fertile ground for disputes to arise. How parties allocate the risk of losses caused by Government acts can cause a claim to disappear. The recent ASBCA decision in Appeal of JAAAT Technical Services, LLC, ASBCA No. 62373 (Oct. 26, 2020) reminds us how to prevent claims from disappearing in a contractual Bermuda Triangle.
Read MoreRegardless of the ultimate outcome of the electoral process, government contractors wonder whether there will be wholesale changes for them, particularly with respect to their employment policies. Well, as with most things, the unsatisfactory answer is yes and no. Here are some examples of what might be on the horizon.
Read MoreThe Department of Labor recently issued an FLSA opinion letter that addressed whether highly educated part-time executive trainers are exempt learned professionals. The opinion provides a useful reminder that, while there are many nuances that complicate the assessment of FLSA exemptions, the analysis always requires the consideration of duties, method of payment, and the amount of pay. Hence, the answer to whether a particular employee might be exempt often may be yes—but no.
Read MoreThe 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.
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