Texas Court Order Imperils FTC’s Forthcoming Non-Compete Ban
On July 3, 2024, the District Court for the Northern District of Texas stayed enforcement of the Federal Trade Commission’s (FTC) impending ban on non-compete agreements between employers and employees (the Rule) pending the outcome of ongoing litigation.1 While the injunction currently only applies to the parties in the case, the court has committed to publishing its final ruling on or before August 30, 2024, in advance of the Rule’s implementation date. The decision is a window into how the . . . Read More
Construction Industry Wage-and-Hour Issues: 6 Tips for Laying a Foundation of Compliance
The construction industry feeds a significant part of the U.S. economy, providing millions of short- and long-term jobs across the country on an annual basis. Since the passage of the Infrastructure Investment and Jobs Act in late 2021, the federal government has begun pumping the Congressionally-allocated $1.2 Trillion into transportation and infrastructure spending, with over $550 Billion allocated to new investments and programs. This federal re-investment into the construction industry, added to already-robust private construction spending, has led to increased . . . Read More
Broken Promises: The Government’s Ability to Trick Contractors and Get Away With It (Maybe)
As the government embraced the digital age in the years after COVID-19, its need for new software and technologies skyrocketed. This rapidly expanding procurement need presents great opportunities for businesses—both small and large—to satisfy the government’s needs. But every opportunity carries risks. In this blog, PilieroMazza explores a case that sheds light on (1) the risks posed by the ever-changing nature of software, (2) the government’s acquisition of new software using multi-option-year contracts, and (3) the legal enforceability of negotiated . . . Read More
Proactive Measures for Impending Increases to FLSA Salary Basis for White Collar Employees
Announced on April 23, 2024, the Department of Labor’s (DOL) Wage and Hour Division’s (WHD) final rule (Rule)—Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees—will begin impacting employers as soon as July 1, 2024. Under the Rule, to maintain employee white-collar exemptions, employers will need to ensure employees are paid a salary of $844 weekly or $43,888 annually ($132,964 annually for highly compensated employees). These thresholds will increase again on January 1, 2025, to $1,128 weekly . . . Read More
Coming Soon! CISA’s Proposed Rule on Government-wide Cybersecurity Reporting Requirements for Contractors
The Cyber Incident Reporting for Critical Infrastructure Act (CIRCIA) was enacted in 2022 with the primary purpose of preserving national security, economic security, and public health and safety. CIRCIA provides the Director of the Cybersecurity and Infrastructure Security Agency (CISA) authority to enact rules regarding various reporting requirements therein. In early April 2024, CISA released a proposed rule ( Rule ) with two significant requirements: (1) a 72-hour deadline to report covered cyber incidents and (2) a 24-hour deadline to report . . . Read More
Question the Questions and the Answers: Bid Protest Decision Highlights Need to Clarify Ambiguities Prior to Bidding
Many solicitations for government contracts provide prospective contractors with the opportunity to ask questions. In some instances, the government’s answers to those questions create additional questions. When that’s the case, it’s crucial to seek clarification early; waiting to see how the procurement unfolds can have drastic consequences, leaving contractors with no recourse. A recently issued bid protest decision from the U.S. Court of Federal Claims—Eagle Hill Consulting, LLC v. United States [1] —highlights this important point. In Eagle Hill, the Federal . . . Read More
The Case for Intervening in Bid Protests: It’s Almost Always the Right Call
You’re a federal government contractor who just won a contract award. But, before you pop the champagne, there’s a hiccup: a competitor filed a bid protest challenging your award. “Oh, well,” you think, “the government can surely defend my award; there’s no reason for me to get involved.” Think again. This blog covers why contractors should step in and intervene when a bid protest challenges their awarded contract. It’s not just about safeguarding your contract; it’s also about ensuring you . . . Read More
Enforceability of Pay-if-Paid Clauses in Construction Subcontracts: Mid-Atlantic Region
Pay-if-paid clauses are conditional payment provisions regularly included in construction subcontracts. The intent of these clauses is to shift the risk of loss from a prime contractor to its subcontractors by making a project owner’s payment to the prime contractor a condition precedent to the prime contractor’s obligation to pay its subcontractors. [1] The enforceability of pay-if-paid clauses is a frequent topic of dispute, becoming more complicated when a prime contractor posts a payment bond protecting subcontractors and suppliers from non-payment . . . Read More
Impact of 11th Circuit’s Sovereign Immunity Waiver Decision on Tribally-Owned Businesses in SBA’s 8(a) Program
On May 1, 2024, the U.S. Court of Appeals for the Eleventh Circuit issued a sweeping decision impacting sovereign immunity for tribally-owned government contractors. The first-of-its-kind appellate decision concludes that by participating in the U.S. Small Business Administration’s (SBA) 8(a) Business Development Program (8(a) Program), tribally-owned entities waive sovereign immunity as to virtually all—if not all—claims connected in any way to the entity’s 8(a) Program participation, regardless of the tenuous nature of the connection. Tribally-owned government contractors should adjust their . . . Read More
CISA Unveils Final Self-Attestation Form for Software Producers Bidding on Federal Contracts
In March 2024, the Cybersecurity and Infrastructure Security Agency (CISA) released the final version of its secure software development self-attestation common form (Form), requiring federal government contractors who produce and provide software to verify that it complies with government-specified, minimum secure software development practices. Nearly one year ago, CISA published a draft version of the Form requesting public comment. PilieroMazza discussed some of the key requirements and implications of the draft form here . Contractors who sell software to the government . . . Read More