The 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 MoreDrilling work presents a a perrenial issue of which prevailing wage law is in play. One of the most challenging parts of wage and hour law revolves around the overlap of Service Contract Act (“SCA”) and Davis-Bacon Act (“DBA”) coverage. It is entirely possible for an employee doing the same physical drilling activity to be covered by a different wage law on the next contract.
Read MoreEffective immediately on May 19, 2020, the Department of Labor (“DOL”) published a new final rule repealing some of their old interpretive guidance to clarify which businesses may or may not have a “retail concept.” under the outside sales exemption of the Fair Labor Standards Act (“FLSA”). After criticism from the community and some courts, the DOL has since seen fit to remove the opaque non-exhaustive lists of eligible and ineligible work from their regulations.
Read MoreHere is a short summary of the differing scope of geographical coverage of the various federal wage and hour laws.
Read MoreA final rule amending the FAR to delete the the Executive Order Nondisplacement rules effective June 5, 2020 was finally issued ending the requirement to offer a first right of refusal for employment on government service contracts to certain workers.
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 MoreHere is how we became government contracts lawyers. We both found a place sheltered from the storm, albeit 37 years apart, in the two greatest moments of economic distress since World War II.
Read MoreUnder The Families First Coronavirus Response Act (“FFCRA”), employers must pay the coronavirus leave in addition to any other leave requried by the prevailing wage laws. There is no credit or offset. As to whether government contractors must also pay additional health and welfare benefits, on top of the virus leave, for the time being that ball is up in the air, awaiting DOL clarification, although prudent employers may decide to pay it nonethless in the interim given the uncertainty.
Read MoreOFCCP issued an exemption for certain new coronavirus related contracts providing “relief” from certain parts of Executive Order 11246 (EO 11246), as amended, Section 503 of the Rehabilitation Act (Section 503), as amended, and Section 4212 of the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), as amended. Generally, contractors performing under a covered contract no longer have to abide by the sections that require affirmative action to ensure the hiring of employees without regard to their sex, sexual orientation, religion, color, race, disability status, or veteran status. However, this waiver only applies to the exempted contracts.
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 MoreThe U.S. Department of Labor (“DOL”) Wage and Hour Division (“WHD”) issued new guidance and posting requirements for the coronavirus leave requirements on March 26, 2020. Earlier this week, Congress enacted legislation which requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Families First Coronavirus Response Act (“FFCRA” or “Act”) requirements go into effect next Wednesday April 1, 2020.
Read MoreOn March 18th, 2020, President Donald Trump signed H.R.6201 or the Families First Coronavirus Response Act (“FFCRA”) into law providing emergency leave benefits for workers unable to perform their job duties due to the pandemic. The law marks a victory for those seeking to expand sick, family and medical leave rights of workers.
Read MoreThe Families First Coronavirus Response Act (FFCRA) bill was passed by the U.S. House of Representatives and sent to the Senate this week. The bill would allow for two weeks of fully paid sick leave and up to 10 weeks of partially paid leave (at two-thirds pay) for workers of small business employers meeting certain conditions. The leave would be financed by a tax credit.
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.
Read MoreHow frequently do employers have to pay their workers? The answer is it depends. Some of the variables it can depend on include wheher the employer is working on a government construction contract, what state the worker is performing labor in, what is the classification of the worker (exempt or nonexempt), and how much is the worker paid.
Read MoreThe Wage and Hour Division (“WHD”) recovered a record of $322 million in back wages that were owed to workers in fiscal year 2019.
Read MoreThe Davis-Bacon Act (“DBA”) still applies to military privitization construction projects, and they are treated differently than the commercial development litigated in the City Center case.
Read MoreUnder the FAR SCA Price Adjustment clause, notice must be furnished to the Government within 30 days of receipt of a new wage determination to be incorporated into a contract in the option or extended period of performance. But that notice proviso is not interpreted strictly and it should not be used to bar price adjustment claims as per se untimely after the 30 day window has past.
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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.
Read MoreWhile the civil money penalty for violation of the overtime laws by federal contractors is suposed to be increased by the rate of inflation every January, this year the $27 penalty is being held steady. However, violation of the overtime laws done in prior years, but uncovered and enforced now, will still be assessed the $27 a day current penalty rather than the lesser fines in existance at the time of the violation.
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