As experienced government contractors know, the rights and remedies available to prime contractors and subcontractors vary markedly. Prime contractors have a direct contractual relationship with the U.S. Government—referred to as “privity” of contract—and therefore may bring claims directly against the government under the Contract Disputes Act (CDA). Subcontractors are typically only able to pursue claims against the prime contractor or against the government on a “pass through” basis.
Recently, my colleague Tracey O’Brien and I examined the implications of the federal government’s intention to shut down the Office of Federal Contract Compliance Programs (OFCCP). OFCCP has already proposed to prohibit data collection by federal contractors of disability status from employees and applicants. In a Notice of Proposed Renewal of Information Collections released by
As we wrote back in November 2021, the Biden Administration issued Executive Order 14055 reinstating most of the concepts from the Obama Administration era nondisplacement Executive Order 13495. Two months after Biden’s imposed deadline of May 2022, the U.S. Department of Labor finally published proposed regulations on July 15, 2022.
Generally speaking, EO 14055 and the proposed Nondisplacement regulations require successor contractors to make offers of employment to all predecessor contractor Service Contract Act covered employees who worked on the predecessor contract. Predecessor contractors are required to prepare and submit a list of their Service Contract Act covered employees to the contracting officer at least 30 days prior to contract termination. The contracting officer then provides a copy of that list to the successor contractor who then is required to make bona fide job offers to the predecessor’s service employees who worked on the prior contract. The rollout of these new regulations is of the utmost importance to any federal contractor or subcontractor with employees subject to the Service Contract Act.
The Court of Federal Claims (CoFC) recently held that an offeror was not obligated to inform the agency of staffing changes, affecting its key personnel, that occurred following its proposal submission. This new CoFC decision conflicts with longstanding GAO precedent.
Key personnel are often a significant part of proposals and can greatly increase or diminish
On November 30, 2021, the United States District Court for the Eastern District of Kentucky, in Kentucky v. Biden, et al., No. 3:21-cv-00055, granted a preliminary injunction limiting the enforcement of the federal vaccine mandate for some federal contractors and subcontractors. The preliminary injunction was requested by the Commonwealth of Kentucky, the State of Ohio, and the State of Tennessee. As a result, the court enjoined the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee” pending further briefing and a full resolution of the case on its merits.
As predicted, another Obama Administration “oldie but goodie” has made a return in the Biden Administration. On November 18, 2021, President Biden issued a new Executive Order entitled “Executive Order on Nondisplacement of Qualified Workers Under Service Contracts.” Many of the same concepts and requirements have returned, but there are also several notable changes.
On September 10, 2021, the FAR Council published a final rule amending the Federal Acquisition Regulation (FAR) to clarify how contracting officers should evaluate a prime contractor’s “good faith efforts” to comply with a small business subcontracting plan.
This past week, the FAR Council issued a proposed rule that would potentially speed up payments to small business prime contractors and subcontractors across the federal government. The proposed rule, found at 86 Fed. Reg. 53,923, seeks to incentivize agencies to pay prime contractors that are small businesses within 15 days instead of 30 days after receipt of a proper invoice if no payment date is specified in the contract. It also would apply to prime contractors that subcontract with small businesses, applying a similar 15-day requirement to pay small subcontractors when accelerated payments are received. According to the proposed rule, the FAR Council will apply this to most federal contracts by seeking determinations to make this new rule applicable to commercial contracts as well as those under the Simplified Acquisition Threshold.
For years, I have been blogging and speaking about the very real and very serious civil and potential criminal consequences of a failure to comply with the Davis Bacon Act. Every once in a while, a case comes along that drives those points home. One such case – involving criminal convictions for wire fraud and conspiracy to commit wire fraud in connection with what appears to be a blatant failure to comply with Davis Bacon Act requirements – is the recent decision in United States v. Estepa, No. 19-12272 (11th Cir. May 25, 2021).
Mentor-protégé programs, such as the government-wide one at the SBA for all small business concerns, are designed to help small contractors engage in federal contracting by allowing larger, more experienced mentor firms to provide assistance to protégés. Generally, the proteges receive financial, technical, or management aid from mentors, and the mentors may receive subcontracting goal credits, reimbursement of expenses, and other incentives in return. One of the key concepts behind these programs is to increase the capacity of small business concerns to compete for contracts they would not ordinarily qualify for otherwise. The U.S. Government Accountability Office’s (GAO) recent decision in Innovate Now, LLC, B-419546, Apr. 26, 2021, confirmed this underlying principle.