Worried About Class Actions? SCOTUS Recently Handed Employers a Hall Pass.
Recently, the U.S. Supreme Court held in Epic Systems v. Lewis that employers may, as a condition of employment, require employees to sign arbitration agreements containing class action waivers. The Court rejected the NLRB’s position that such agreements infringe on employees’ right to engage in collective action under the National Labor Relations Act. Instead, the Court gave weight to the Arbitration Act, which, Justice Gorsuch wrote, supports “pretty absolutely” rights for employers and employees to contract for arbitration. While arbitration is often touted as . . . Read More
GAO Overturns OTA Award to REAN Cloud
On May 31, 2018, GAO sustained a protest filed by Oracle America, Inc. (“Oracle”) challenging the Army’s entry into a follow-on production other transaction agreement (“OTA”) with REAN Cloud LLC (“REAN”). Oracle alleged that the Army did not properly exercise its authority in entering the follow-on production OTA with REAN. GAO agreed. The OTA was for the migration of legacy software applications to a commercial cloud service provider. REAN is an Amazon Web Services partner. The initial award was $950 . . . Read More
OHA Reaffirms the Relevancy of the Date of Self-Certification
In the Matter of ASIRTek Federal Services, LLC, SBA No. VET-269 (2018), SBA found that the apparent awardee of a contract set aside for service-disabled veteran-owned small businesses (“SDVOSB”) was ineligible as an offeror because its joint venture agreement (“JVA”) failed to conform to the regulatory requirements. On appeal, SBA’s Office of Hearings and Appeals (“OHA”) upheld the finding of ineligibility, noting that the appellant’s JVA was defunct because it was dated more than a year before the solicitation was . . . Read More
Doing Double-Duty: Your Claim Can Serve as Your Complaint in a Claim Appeal
The Civilian Board of Contract Appeals (“Board”) recently held that a contractor’s claim could serve as its complaint when appealing the denial of that contractor’s claim. In K.O.O. Construction, Inc. v. Department of Veterans Affairs, CBCA 6072, 2018 WL 1899353, the appellant, K.O.O. Construction, Inc. (“KOO”) filed a nineteen-page, single-spaced, certified claim with various exhibits with the U.S. Department of Veterans Affairs (“VA”). VA did not respond to the claim, and KOO filed an appeal of VA’s “deemed denial” of . . . Read More
New Maryland Sexual Harassment Law Creates Important Implications for Employers Both Inside and Outside the State
On May 15, 2018, Maryland Governor Larry Hogan signed into law the Disclosing Sexual Harassment in the Workplace Act of 2018. Described by bill sponsor Craig Zucker (D-Montgomery) as a “national model,” the law, which goes into effect on October 1, 2018, is the first of its kind in the Mid-Atlantic region. And, it has important implications, not only for employers in the State of Maryland, but for out-of-state employers who allow employees to telecommute from, work from time to . . . Read More
Who Are the “Key Management Personnel” for Purposes of My Company’s Facility Clearance?
Whether a federal contractor can be cleared depends on its people. Specifically, whether a company can obtain a facility clearance (“FCL”) depends on the personnel clearances (“PCL”) of the company’s Key Management Personnel (“KMP”). For instance, if a company needs a secret FCL for contract performance, then the company’s KMP either need to have a secret PCL or be excluded from access to classified information. Contractors often ask who the KMP for their companies are supposed to be. At a . . . Read More
When the Law Comes A Callin’: A “How To” For Responding to Subpoenas and Document Requests
Since the last Presidential election campaign began almost three years ago, there has been a significant public focus on sexual harassment, income inequality, crimes against women, public corruption, and the income gap. Sexual harassment claims have skyrocketed in recent months, with some states reporting as much as 400% increases in claim reports. The Department of Labor is enforcing ever-changing compensation rules on service employers. Federal courts are recognizing an expanded reach of workplace non-discrimination laws to the LGBTQ+ community. And, . . . Read More
Legislative Remedies for Surviving Midsize
Back when you started your small business, and the very prospect of making payroll for the month was nerve-wracking, you probably never imagined that your company might actually become too successful. Now, as you get closer to midsize, this very concern may have crossed your mind. Once a company’s revenues exceed the size standard for its industry, it is no longer afforded the federal protections and opportunities of a small business, and it graduates to “midsize,” the undefined middle ground . . . Read More
The Protests Are Coming: Draft DoD Guidance Reveals How Cyber Readiness Will Impact Contract Evaluations
We have been blogging and giving webinars since last year about the DoD requirements around cybersecurity for contractors that are subject to DFARS 252.204-7012. Please view our past blogs and webinars here and here to get more of the backstory. In a nutshell, DoD contractors operating nonfederal IT systems and subject to DFARS 252.204-7012 were required to have a system security plan (“SSP”) in place by December 31, 2017, to demonstrate compliance with the recommended security controls in NIST SP 800-171. Although . . . Read More
SBA Amends Its Recertification Rules: Effectively Overturns Recent OHA Case
In a noteworthy decision earlier this year, the Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) confirmed the broad nature of SBA’s general rule that a contractor maintains its size and socio-economic status for the life of a contract. See In the Matter of Analytic Strategies, Inc., SBA No. VET-268 (Jan. 29, 2018) . This case required OHA to interpret the SBA regulation establishing the recertification rule in the context of Service-Disabled Veteran-Owned Small Business Concern (“SDVO SBC”) status. The regulation permits a concern that initially qualifies as an SDVO SBC . . . Read More