Husch Blackwell

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On April 26, 2011, the Office of Federal Contract Compliance Programs formally proposed regulations to update contractor affirmative action obligations concerning veterans. The proposed rules impose additional obligations on covered federal contractors and subcontractors. For the first time, OFCCP is seeking to impose quantitative measurements to assess the hiring of protected veterans, self-identification invitations…

Do you think that small business contracts and subcontracts have been going to contractors that do not qualify as small businesses? If so, you may be interested in the new legislative changes intended to discourage and penalize fraud in small business contracting. The changes are in the Small Business Jobs Act of 2010, signed by the President on September 27, 2010.

Title 41 of the U.S. Code holds many of the key laws governing contracts with the federal government. A four-year effort to organize this collection of public contract laws and remove “ambiguities, contradictions, and other imperfections” was completed on January 4, 2011. The President’s signature on Public Law No. 111-350, 124 Stat. 367 (Jan. 4, 2011) [pdf] has the effect of renumbering the entirety of Title 41 and giving new section numbers to many of the most important government contract laws.

A recent bid protest decision by the United States Court of Federal Claims is a reminder that HUBZone small business concerns must monitor their compliance with SBA rules. In Mission Critical Solutions v. United States, No. 10-810C (Fed. Cl. Feb 18, 2011) [pdf], the court held that a contractor was properly decertified as a HUBZone small business concern and ineligible for a contract set aside for HUBZone small businesses because fewer than 35 percent of its employees resided in HUBZones at the time of award.

Sweeping changes to Small Business Administration (“SBA”) regulations will go into effect on March 14, 2011.  The new rules affect SBA’s 8(a) Business Development (“BD”) program, SBA’s mentor/protégé program, and its joint venture regulations.  The final rule can be found here.  As a whole, the amendments suggest that SBA intends to eliminate manipulation and abuse of the 8(a) BD and mentor/protégé programs by small and large businesses alike. 

The Office of Federal Contract Compliance Programs has been busy the past few months and anticipates heightened activity in the months to come. New OFCCP initiatives include: (1) asserting jurisdiction over healthcare providers, (2) revamping efforts to identify workers misclassified as contractors; (3) proposing new affirmative action regulations for construction contractors; and (4) increasing enforcement…

The Small Business Administration has launched an informational website addressing its new Women-Owned Small Business Federal Contract Program. The website includes a step-by-step guide on how to participate in the new set-aside program, as well as links to explanatory statements and SBA contact information. The final regulations implementing the program were published on October 7…

In National Aeronautics and Space Administration v. Nelson, No. 09-530 (U.S. Jan. 19, 2011) [pdf], the Supreme Court concluded that employees of government contractors can be subjected to the same background checks conducted on federal civil servants, without violating the privacy protections in the Constitution. The decision specifically rejects a challenge to questions about the past use of illegal drugs, including whether prospective contractor employees had previously received treatment or counseling for drug use.

The False Claims Act encourages individuals with knowledge of fraud against the Government to file a court action seeking damages for the fraud.  It does this by promising a bounty. The relator receives a percentage of the amount recovered in a false claims case.  But there is a constant tension between encouraging plaintiffs to bring cases alleging fraud and protecting defendants from frivolous cases. The January 11, 2011 decision in United States ex rel. Folliard v. Hewlett-Packard Co. illustrates how the requirement that a plaintiff include all of the details of an alleged fraud in the initial complaint helps strike this balance.