Accrual of contractor claims after KBR v. Murphy

Contract Disputes Act claims are subject to a six-year statute of limitations. While the math involved in calculating when that limitations glass-time-watch-businessperiod runs seems easy, determining when a CDA claim accrued is not always so simple. FAR 33.201 defines “accrual of a claim” as the date when the party with the claim knew or should have known all of the events that “fix the alleged liability” of the other party. But the Federal Circuit’s decision in Kellogg Brown & Root Services, Inc. v. Murphy, No. 2015-1148 (Fed. Cir. May 18, 2016) [PDF], shows that the date of accrual is not always clear.

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Court orders Postal Service to justify lawfulness of three standard clauses

Leslie Arkansas Post Office

The termination of a $34,000 mail delivery contract serving this post office in Leslie, AR could result in three standard clauses being declared unlawful on thousands of USPS transportation contracts.

Three standard clauses used in virtually all Postal Service surface transportation contracts are now on the chopping block. In an interim ruling, the Court of Federal Claims ordered the Postal Service to show why these three clauses should not be declared unlawful and unenforceable. Tabetha Jennings v. U.S., Fed. Cl. No. 14-132C, May 29, 2016.

The case involves the default termination of a $34,000 contract to provide mail delivery between Leslie and Timbo, Arkansas. Tabetha Jennings, the sole proprietor contractor, had provided service for seven years without any issues. Then, during a heavy volume Christmas season, a postmaster accused her of using a vehicle with insufficient capacity. The postmaster was wrong, but this charge led to other accusations. Eventually, the postmaster accused Jennings of conducting herself “in an unprofessional manner” and disrupting mail processing operations. These accusations, in turn, led the contracting officer to rescind Jennings’s security clearance and her access to postal premises and the mail.

Jennings disputed the accusations against her and presented statements from a different postmaster and from another contractor that backed her up. But the contracting officer was unmoved and did not lift the suspension of her security clearance. When Jennings failed to provide a substitute carrier to continue the service she had been barred from performing herself, the contracting officer terminated her contract for default. Continue Reading

Contractor guide to compliance with OFCCP’s new final rule on sex discrimination

A new Final Rule addressing sex discrimination in employment by federal contractors and subcontractors will go into effect on August 15, 2016. The new Final Rule was published by DOL’s Office of Federal Contract Compliance http://www.contractorsperspective.com/construction-contracting/dc-circuit-rules-that-the-davis-bacon-act-does-not-apply-to-public-private-partnership-project/Programs. It implements Executive Order 11246, which has been essentially unchanged since it was first issued in 1970. OFCCP’s new rules and guidelines include several significant changes from the 1970 version, but the changes are primarily intended to update DOL requirements so that they conform to well-established federal caselaw and other more recently enacted federal requirements.

Who is affected?

OFCCP’s new Final Rule on sex discrimination applies to any business or organization that (1) holds a single Federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has Federal contracts or subcontracts that, combined, total in excess of $10,000 in any 12-month period; or (3) holds Government bills of lading, serves as a depository of Federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount.

What does the Final Rule address?

As they have for many years, DOL’s regulations require contractors to ensure nondiscrimination in employment on the basis of sex and to take affirmative action to ensure that they treat applicants and employees without regard to their sex. The new Final Rule is much more specific.

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Universal Health v. Escobar: the new standard of proof for implied certification liability under the False Claims Act

Photo by Sgt. Sara WoodThe Supreme Court’s unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar, No. 15-7 (U.S. June 16, 2016), upholds the viability of the implied certification theory of False Claims Act liability. But it also makes cases arising from minor instances of noncompliance much harder to prove. The Court held that a knowing failure to disclose a violation of a material statutory, regulatory, or contractual requirement can create False Claims Act liability. The requirement need not be an express condition of payment, but it must be material to the Government’s decision to pay.

The requirement for proof of a misleading half-truth

Those hoping that the Court would eliminate implied certification altogether will be disappointed with the decision. It opens up the possibility of new False Claims Act cases in the Seventh Circuit and in other jurisdictions that had rejected the implied certification theory or limited its application to conditions of payment. Some cases that might have been thrown out on a motion to dismiss might stand a better chance of surviving through discovery and trial.

The Court nevertheless takes strong steps to limit misuse of the implied certification theory. According to the opinion in Escobar, liability under the implied certification theory can be imposed only when two conditions are satisfied. First, the claim for payment must make “specific representations about the goods or services provided.” An invoice that makes no affirmative statement about the quality of a contractor’s goods or services cannot be the basis for an implied certification.

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DOL’s new salary level tests for overtime pay

The Department of Labor has issued its final rule amending the overtime and exemption regulations of the Fair Labor Standards Act. Although the final rule differs in some ways from the July 2015 proposed rule, it will have significant administrative and budgetary impacts on most employers. The new rule becomes effective December 1, 2016, and will update automatically every three years thereafter.

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New bid protest procedures at GAO

Image by William Warby

GAO has announced a series of proposed amendments to its bid protest regulations. The changes are prompted by the Consolidated Appropriations Act for Fiscal Year 2014, one section of which required GAO to establish an electronic filing system. But the amendments are not limited to implementing electronic filing, and many of the other proposed adjustments warrant attention.

Electronic filing and new filing fee

Many of the proposed amendments address GAO’s proposed “Electronic Protest Docketing System,” or EPDS. Once adopted, EPDS will be the sole means for filing a bid protest at GAO, replacing the “protests@gao.gov” email method. Protests containing classified information will not use EPDS.

Some protest-related communications will also be required to be submitted through EPDS under the proposed amendment to Section 21.3(a). GAO has stated that it will post instructions on its website as to which communications should be submitted through EPDS and which will continue to be exchanged through email. While this guidance is not yet available, the text of the proposed rule does not suggest a substantive change in existing practice, under which certain communications are distributed to all parties (and GAO, but parties may also have separate contact about some protest-related issues.

A filing fee in the amount of $350—the first of its kind at GAO—will be imposed to cover the costs of supporting EPDS. The fee is to be paid by the protester upon initiating the protest. GAO has not addressed how the filing fee will be paid, a potentially important consideration in light of GAO’s short and strictly enforced filing deadlines.

Other important amendments

GAO’s proposed amendments include substantive changes unrelated to EPDS. Many, but not all, of these changes are intended to formally adopt rules announced in GAO’s decisions. Here are some of the signifcant changes. Continue Reading

How the Supreme Court will limit False Claims Act liability for implied certification

[UPDATE: The Supreme Court resolved the Escobar case in a unanimous decision published on June 16, 2015. A link to our discussion of the Court’s opinion is available here.]

In some courts in the United States today, a government contractor or a healthcare provider seeking reimbursement from a federal program can violate the False Claims Act even when its work is satisfactory and its invoices are correct. Under the theory of “implied certification,” a minor instance of non-compliance with one of the thousands of applicable statutes, regulations, and contract provisions can be the basis for a federal investigation, years of litigation, as well as fines, penalties, suspension and debarment, even imprisonment of company personnel.

This week, the Supreme Court heard oral arguments in Universal Health Services, Inc. v. United States ex rel. Escobar, Docket No. 15-7, a case involving the viability of the implied certification theory. Here, we look at the questions posed during oral argument to see if we can infer how the Court might resolve the case.

The Supreme Court agreed to consider two questions posed in Escobar. First, the Court agreed to address the current split in the circuits as to the viability of the implied certification theory. The First Circuit’s decision in United States ex rel. Escobar v. Universal Health Services, Inc., 780 F.3d 504 (1st Cir. 2015), broadly adopts implied certification. The Seventh Circuit’s decision in United States v. Sanford-Brown, Ltd., 788 F.3d 696 (7th Cir. 2015), firmly rejects it.

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DC Circuit rules that the Davis-Bacon Act does not apply to Public-Private Partnership project

We have previously written about the Department of Labor’s effort to expand the scope of its regulatory and enforcement jurisdiction over government contractors against the wishes of Congress and even fellow federal agencies. The United States Court of Appeals for the District of Columbia struck down an attempt by the DOL to significantly expand the Davis-Bacon Act to apply to the construction of a Public-Private Partnership project. The Davis-Bacon Act requires that contractors on federal and DC government construction projects pay prevailing wages and fringe benefits to the workers on such projects. DOL sought to apply the Act to CityCenterDC, which is a mixed-use development on the site of the DC Convention Center. This project includes 60 retail stores, various private offices, approximately 700 residential units, and a 370-room luxury hotel.  Continue Reading

Mandatory paid sick leave for contractor employees

On February 25, 2016, the Department of Labor proposed regulations requiring many government contractors to provide up to seven days of paid sick leave to employees. The proposal seeks to implement Executive Order 13706, which was
issued by President Obama on Labor Day last year. DOL estimates that the new regulatImage: www.flickr.com/photos/pyxopotamusions will provide paid sick leave to nearly 437,000 government contractor employees who had none before.

Here is a look at DOL’s proposal—

The basics

Application:  Government contractors and subcontractors working under covered contracts.

Covered Contracts:  (1) Davis-Bacon Act contracts; (2) Service Contract Act contracts; (3) concessions contracts; and (4) contracts offering services under leases and licenses associated with Federal property.

Affected Employees:  Employees performing work on covered contracts whose wages are governed by the DBA, SCA, or FLSA, as well as exempt employees.

Absences Covered:  Those absences resulting from:

  • Their own illnesses or other physical or mental health care needs, including preventive care.
  • The care of a family member or loved one who is ill or needs healthcare, including preventive care.
  • Purposes resulting from being the victim of domestic violence, sexual assault or stalking, or to assist a family member or loved one who is such a victim.

No Credit:  Paid sick leave under the proposed regulations would not count towards meeting prevailing wage or fringe benefit obligations under the DBA or SCA.

Enforcement:  Complaints of non-compliance would be filed with the DOL’s Wage and Hour Division. There is an investigatory process and an administrative process for resolving disputed questions of fact and law. Contractors found to have violated the regulations may be subject to the withholding of funds, damages, and debarment.

Effective Date:  New or replacement contracts solicited by or otherwise awarded on or after January 1, 2017. Continue Reading

Top U.S. Postal Service Suppliers in FY 2015

Top 150 first page FY 2015Transportation and technology companies dominate the top 10 spots on the list of the Top U.S. Postal Service Suppliers for FY 2015.  Federal Express Corporation again tops the list, a position it has held since 2002. Overall, the Postal Service spent $12.5 billion on outside purchases, about half of it on transportation.

FedEx, now in the third year of a seven-year air cargo network contract, received nearly $1.4 billion in revenue, a 3 percent drop from last year. Package giant United Parcel Service is also among the agency’s top suppliers, earning $154 million in postal revenues and moving up from No. 12 to No. 11.

Other transportation-related companies in the top 10 include trucking company Salmon Companies, Inc. (No. 4, $229 million); Victory Packaging, logistics and distribution services provider for ReadyPost and other packaging supplies programs (No. 5, $212 million); commercial airline United Airlines, Inc. (No. 6, $197 million); and auto-parts supplier Wheeler Bros., Inc. (No. 9, $175 million). Not far behind are trucking company Eagle Express Lines, Inc., No. 12 ($140 million); cargo airline Kalitta Air, LLC, No. 15 ($97 million); and commercial airline Delta Air Lines, Inc., No. 16 ($93 million).

Technology-related companies on the list start with EnergyUnited Electric Membership Corporation, which provides telecommunication and energy billing services. EnergyUnited is again the Postal Service’s second-largest supplier with $440 million in revenue, most of which is paid out to other companies. At No. 3 is Honeywell International, Inc., which received $273 million under its contract to provide 225,000 Mobile Delivery Devices (MDD). Letter carriers use the MDD to scan mail and packages.

HP Enterprise Services, LLC, a provider of computer equipment, ranks No. 7 with $192 million in revenue, about $20 million more than last year. Accenture Federal Services, which provides enterprise technology and consulting services to the agency, is ranked No. 8 with $188 million. International Business Machines Corporation (IBM) and AT&T Corporation again placed in the Top 20. EMC Corporation, which recently won a Postal Service contract to provide information storage and management services, has already cracked the Top 20 with $81 million in postal revenue.

Rounding out the Top 10 with $159 million in revenue is Northrop Grumman Corporation, which operates the Postal Service’s central repair facility in Topeka, Kansas.

David Hendel, a partner at Husch Blackwell, has compiled annual lists of the top Postal Service contractors since 2002, including these lists from 2010 – 2014.

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