The 1996 Congressional Review Act has been getting a lot of use since President Trump’s inauguration. On March 27, 2017, President Trump signed House Joint Resolution 37, revoking the “blacklisting regulations” put in place following former President Obama’s July 2014 Executive Order on Fair Pay and Safe Workplaces (EO 13673). As we discussed in an earlier post, the EO and the regulations implementing it directed federal agencies to take into account an employer’s workplace safety and other labor law violations as part of the their procurement decisions.

The CRA is an obscure legislative tool that can rescind recent executive actions, and thereby limit agency authority. Under the CRA, Congress has 60 legislative days (which are counted differently than calendar or business days) to pass a “joint resolution of disapproval” in the House and Senate. Joint resolutions of disapproval cannot be filibustered. A simple majority in both houses of Congress can overturn agency rules and regulations if the president signs the joint resolution.

There were significant questions regarding due process concerns with the blacklisting regulations. Industry strongly criticized the regulations because they allowed agencies to exclude contractors based on mere accusations, such as safety citations that had not yet gone through any adjudicatory proceedings.

Revoking the blacklisting regulations was the first of several actions President Trump and his allies in Congress intend to pursue to reduce the administrative/regulatory burdens on employers.

Continue Reading Will the rollback of Obama’s executive orders be permanent?

postalTransportation contractors once again dominate the top spots in our annual list of the Top 150 U.S. Postal Service Suppliers. In fiscal year 2016, USPS spent over $14 billion on outside purchases, about half of that for transportation. As it has since 2002, Federal Express Corporation lands atop the list, this year with $1.678 billion in revenues – about a $300 million increase from last year. FedEx carries package and letter mail for the Postal Service. FedEx’s air cargo network contract with the Postal Service was recently renewed for a five-year period, extending the contract until September 29, 2024. Continue Reading Transportation Contractors Lead List of Top U.S. Postal Service Suppliers

The Missouri Court of Appeals decision in Penzel Constr. Co. v. Jackson R-2 School District, No. ED103878 (Mo. Ct. App. Feb. 14, 2017), is an important development for public construction contracting in Missouri. The decision adopts the Spearin Doctrine and approves the use of the Modified Total Cost method for proving damages. While these concepts have been used widely in federal construction contracting, the Penzel decision is the first published decision recognizing them in Missouri.

The Penzel case involved additions to a public high school. The School District hired an architect. The architect retained an electrical engineering sub-consultant. When the project went to bid, the School District furnished bidders with the architect’s plans and specifications. Penzel Construction Company submitted a bid as the general contractor.

Penzel’s electrical subcontractor was Total Electric. Total’s bid was $1,040,444. Neither Penzel nor Total “noticed” any errors, omissions, or other problems with the plans and specifications during the bidding process.

Total encountered delays totaling 16 months, which Total attributed to “defects and inadequacies” in the electrical design. Under a liquidating agreement between Penzel and Total, Penzel sued the District. Penzel alleged that the District impliedly warranted the design. Penzel claimed the design was not adequate for completing the project.

In addition to proving liability, Penzel needed to prove the damages associated with its loss of productivity claim. To do so, Penzel sought to use the Modified Total Cost Method. The claimed damages were comprised of additional project management and supervision costs, wage escalation, unpaid change order work, and consultant’s fees. Continue Reading The Spearin Doctrine and Modified Total Cost claims on Missouri public projects

The Congressional Review Act of 1996 may be an effective tool for rolling back recent federal regulations implementing President Obama’s policy initiatives. But it is limited. It applies only to very recent rules. It requires action by both houses of Congress and the President’s signature. It is strongly limited by political factors. In the 21 years since it was adopted, it has been used only once.

Congress is seeking stronger weapons. H.R. 5, the “Regulatory Accountability Act of 2017,” represents a substantial rewrite of the existing Administrative Procedure Act. H.R. 5 includes provisions that would allow courts to review agency rules on a “de novo” basis, without any deference to the agency’s interpretation of Constitutional or statutory requirements and other regulations.

H.R. 26, “Regulations from the Executive in Need of Scrutiny Act of 2017,” introduces a new mechanism for Congressional review of a broad category of Federal agency regulatory actions defined as “major rules.” Basically, the mechanism in H.R. 26 is designed to prevent a broad class of actions by Executive Branch agencies and independent regulatory agencies from becoming effective without a Joint Resolution of approval passed by Congress and signed by the President within a narrowly prescribed period (70 legislative days).

Even if these bills get through Congress and are signed by President Trump, they will likely face challenges in the Supreme Court. H.R. 26 in particular faces an uphill climb. For the reasons discussed in this article, the Joint Resolution mechanism in H.R. 26 suffers from the same Constitutional infirmities as the “one-House veto” that was popular in the 1970s but declared unconstitutional in INS v. Chadha, 462 U.S. 919 (1983). Continue Reading Why Congress can’t have the one-House veto in H.R. 26

According to Shakespeare, “What’s done cannot be undone.” This may not be true with respect to many of the regulations implementing President Obama’s Executive Orders.

Let’s look at the fate of the rules implementing Executive Order 13673 (July 2014), formally called “Fair Pay and Safe Workplaces.” The DOL guidance and the FAR provisions implementing this Order were commonly referred to as “the blacklisting rules.”

The final blacklisting rules were published on August 25, 2016. Industry moved quickly to challenge them. An October 24, 2016 preliminary injunction issued by United States District Judge Marcia Crone stopped most of them from going into effect. Judge Crone’s order cites two constitutional problems with the blacklisting rules. First, they likely violate contractors’ due process rights because they require contractors to report mere allegations of labor law violations without the benefit of judicial or quasi-judicial safeguards to contest them. Second, they likely violate contractors’ First Amendment rights because they require contractors to “to report that they have violated one or more labor laws and to identify publicly the ‘labor law violated’ along with the case number and agency that has allegedly so found” even when there had been no adjudication. Continue Reading The fate of “Fair Pay and Safe Workplaces” under President Trump

GAO’s recent decision in HP Enterprise Services, LLC illustrates the challenges resulting from the recent changes to GAO’s task order protest jurisdiction. It also provides a useful overview of the current scope of GAO’s jurisdiction over such protests.  HP Enterprise Services, LLC—Reconsideration, B-413382.3 (January 26, 2017).

Here is a bit of background on the recent jurisdictional changes that led to the decision. GAO lost its jurisdiction over protests of civilian task and delivery orders valued at over $10 million on September 30, 2016. This was the “sunset date” established in the 2008 National Defense Authorization Act. GAO’s jurisdiction over such protests for military agencies or departments, or for protests alleging increased scope, period, or maximum value of the underlying contract, remained undisturbed in 2016.

For approximately three months, contractors had no forum (and therefore, no remedy) for protests of civilian task orders valued over $10 million. That changed on December 14, 2016, when the Government Accountability Office Civilian Task and Delivery Order Protest Authority Act of 2016 became law. See Public Law No. 114-779 (Dec. 14, 2016). This law restored GAO’s civilian task order protest jurisdiction to its pre-October 1, 2016 scope.

Less than two weeks later, the scope of GAO’s jurisdiction over task order protests changed yet again. On December 23, 2016, the 2017 National Defense Authorization Act became law. See Public Law No. 114-328 (Dec. 23, 2016). Although major changes aimed at limiting federal bid protests had been under discussion, most of the limiting provisions were not adopted. The 2017 NDAA did not change the $10 million threshold for protests of civilian agency task order awards. But it increased GAO’s jurisdictional threshold for military agency task order protests from $10 million to $25 million. Protests asserting that a task order award was improper because it exceeded the scope, the performance period, or the maximum value of the underlying contract can be filed without regard to the threshold.

HP gets caught in a jurisdictional trap

Like many government contractors, HP Enterprise Services was ensnared in these changes. On July 11, 2016, HP protested the award of a task order to CACI, Inc. The task order was issued by GSA, but it required the delivery of IT support services to DoD. GSA took corrective action soon thereafter, and the protest was dismissed as academic. Continue Reading When can a contractor protest a task order at GAO?

https://www.transportation.gov/fastlane/enbridge-updateIn a Presidential Memorandum issued January 24, 2017, President Trump directed the Secretary of Commerce to develop a plan within 180 days to require that pipelines in the United States use materials and equipment produced in the United States “to the maximum extent possible and to the extent permitted by law.” The plan will extend to newly constructed pipelines as well as to those that are “retrofitted, repaired and expanded . . . inside the borders of the United States.”

With respect to iron or steel products, the Memorandum makes it clear that all stages of the manufacturing process must occur in the United States. The Memorandum states:

“Produced in the United States” shall mean:

(i)        With regard to iron or steel products, that all manufacturing processes for such iron or steel products, from the initial melting stage through the application of coatings, occurred in the United States.

(ii)       Steel or iron material or products manufactured abroad from semi-finished steel or iron from the United States are not “produced in the United States” for purposes of this memorandum.

(iii)      Steel or iron material or products manufactured in the United States from semi-finished steel or iron of foreign origin are not “produced in the United States” for purposes of this memorandum.

The notions that iron and steel products must be manufactured in the United States and that all of the manufacturing processes must occur in the United States are not new. Substantially similar requirements are used in the “Buy America” provision of the Surface Transportation Assistance Act of 1982. See 49 U.S.C. § 5323(j)The Federal Transit Administration and the Federal Highway Administration have used this approach for state and local highway and transit projects funded wholly or partially with federal funds. See, e.g., 49 C.F.R. § 661.5. Continue Reading President Trump mandates “Buy American” for construction of US pipelines

U.S. Air Force and Honduran doctors work together to remove a diseased gallbladder from a patient at the Doctor Salvador Paredes Hospital in Trujillo, Honduras, July 2, 2015.The 2017 National Defense Authorization Act, Pub. L. No. 114-328 (Dec. 23, 2016), introduces major changes to the Defense Department healthcare program known as TRICARE. By this time next year, we’ll see a new program to contain the cost of prescription drugs at retail pharmacies, contractual incentives for improving the quality of healthcare and reducing “per-capita cost,” and the first major step toward privatizing the delivery of healthcare to military members. Here are the key statutory provisions:

  • Access to private health care providers. Section 701 of the 2017 NDAA establishes TRICARE Select as a new self-managed, preferred provider network option for eligible beneficiaries. TRICARE Select will essentially replace the current TRICARE Extra and TRICARE Standard plans. As of January 1, 2018, all TRICARE Standard and TRICARE Extra beneficiaries will need to be enrolled in either TRICARE Prime or TRICARE Select. The Standard and Extra plans will terminate on that date. Beneficiaries under the new Select plan will have unrestricted freedom of choice in selecting their health care providers.
  • Prior authorization requirements. Section 701 of the 2017 NDAA prohibits managed care support contractors from requiring primary or specialty care providers to obtain prior authorization before referring a patient to a specialty care provider within the contractor’s network.
  • Value-based incentive program for TRICARE contracts. Section 705(a) of the 2017 NDAA requires a “value-based incentive program” to be incorporated into any TRICARE contract for the provision of health care services. These new contractual incentives would encourage health care providers to improve the quality of health care, the health of covered beneficiaries, and the experience of covered beneficiaries. One of the specific elements to be addressed in the contracts and forthcoming contract modifications is lowering the “per-capita cost” of health care. Section 705(c) sets a January 1, 2018 deadline for the program to be implemented. Contracts awarded before the deadline will be modified.
  • Procurement authority. Section 705(b) of the 2017 NDAA requires responsibility for the solicitation and award of “managed care support contracts” to be transferred from the Defense Health Agency to the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics.
  • Privatization of health care services. Section 706 of the 2017 NDAA sets a deadline of January 1, 2018 for DOD to establish “military-civilian integrated health delivery systems” through partnerships with private sector health systems. It calls military treatment facilities and HMOs or other private sector health care providers to enter into contracts or memoranda of understanding that would allow TRICARE members to receive health care services at private sector providers. Section 717 authorizes veterans to receive health care at military treatment facilities.
  • Manufacturer rebates at retail pharmacies. Section 743 gives the Secretary of Defense authority to conduct a pilot program that would allow DOD to capture manufacturer rebates that are payable when TRICARE members have prescriptions filled at retail pharmacies. Under the pilot program, manufacturers would have to pay rebates such that medications are available to TRICARE beneficiaries at the “lowest rate available,” including rates charged to the mail order pharmacy. The pilot program would begin no later than October 1, 2017 and end by September 30, 2018.

More on DOD healthcare contracting—

Incumbency as a factor in the award of TRICARE’s $58 billion managed care support contracts (Nov. 27, 2016)

OFCCP’s five-year moratorium on enforcement actions against TRICARE providers (Apr. 14, 2014)

TRICARE hospitals and pharmacies are not subcontractors (Jan. 9, 2012)

Contractors interested in the application of FOIA Exemption 4 should take note of the Ninth Circuit’s decision in American Small Business League v. Dep’t of Defense, No. 15-15120 (9th Cir. Jan. 6, 2017). The issue in the case was whether a declaration submitted by a Sikorsky Aircraft Corporation employee was sufficient to show the competitive harm necessary to withhold small business subcontracting data obtained from Sikorsky. The Sikorsky declaration was short, but it identified Sikorsky’s competitors and asserted that its small business subcontracting data could be used to gain a competitive advantage.

Soldiers conduct air assault operations on the deck of the 8th Theater Sustainment Command's Logistical Support Vessel-2, the Harold C. Clinger off the coast of Honolulu, Jan. 11, 2016. The soldiers are assigned to the 25th Infantry Division.
Army photo by Sgt. Jon Heinrich

In a November 2014 order, the District Court found the declaration too vague. It lacked “reasonably specific detail” as to the likelihood of competitive injury. It did not show how information found in the subcontracting plan would be “likely to cause substantial competitive injury.” Proof of competitive harm was based only on the fact that a Sikorsky competitor “could” use Sikorsky’s data to cause harm. In the words of District Judge William Alsup, “[t]hat is not enough to grant summary judgment for the agency.” The District Court ordered the government to produce Sikorsky’s master subcontracting plan, subject only to appeal.

Continue Reading The Ninth Circuit sides with DOD on Sikorsky small business subcontract data

Earlier this year we wrote about the final regulation consolidating most of the Federal Small Business Mentor-Protégé program under one office at the Small Business Administration. See 81 Fed. Reg. 48558 (July 25, 2016). The regulation expands the popular Mentor-Protégé program and should provide significant benefits to many more large and small companies. You can read our original post here.

One of the questions raised in comments on the draft regulation was how the SBA would cope with the expected significant increase in its workload. Accuracy and turn-around time are important elements of the SBA’s review role. In the final regulation, SBA generally addressed those concerns by promising to find new and improved ways to deliver the service. They committed to take one step at a time and scale up as needed.

It has now been five months since the final rule was published. We asked SBA Mentor-Protégé Director Holly Schick for a progress report on the transition. Director Schick says that the SBA has moved steadily if incrementally, to ramp-up the program.

Continue Reading Progress Report: SBA Mentor-Protégé Program rolls out and moves forward