How Loans Can Impact Size and Status
It’s protest season. Or, maybe it is always protest season. In any event, the best defense for a size or status protest is always to be prepared before the protest is filed. That means regularly assessing potential affiliations that could affect your size and status. With that in mind, I want to share some information about how affiliation can arise through loans. Specifically, loans from a private party (i.e., an individual or a company, not a bank). SBA . . . Read More
When Is a Low Price a Problem? Understanding Realism
Contractors are often confused after receiving a debriefing during which the Government states the contractor’s proposed price was too low. The disappointed offeror wonders, why would the Government want to pay a higher price? On the other hand, a disappointed offeror may learn that the awardee proposed a substantially lower price and want to use that low price as a protest ground in a bid protest. This type of protest can only be brought if the agency was required to . . . Read More
FLSA Overtime Rule Struck Down Leaving DOL and Employers in Limbo
In a decision issued on August 31, 2017, federal district Judge Amos Mazzant struck down as invalid the Department of Labor’s (DOL) new overtime exemption rule which planned to significantly increase the salary threshold under the Fair Labor Standards Act (FLSA). As explained further below, a welcome decision for employers is also leaving DOL’s path toward a new overtime threshold in question. As most know, the FLSA requires that employers pay non-exempt employees overtime for any hours worked beyond . . . Read More
The Sisyphean Labor of the DAR Council: Segregation and Reintegration Data Rights
Having just presented on data rights issues to a number of government contracting officers and procurement professionals, as well as private sector contract management personnel, during the 2017 National Contract Management Association World Congress, it became clear that many people are confused (and rightly so) about what is happening with regard to the segregation and reintegration rules. Given that it took four years to get the first DFARS rule proposed, and then, in the 2017 National Defense Authorization Act (“NDAA”), . . . Read More
Protesting FAA Awards: Understanding the Nuances
Nearly every federal agency is required to follow the Federal Acquisition Regulation (“FAR”). However, one exception is the Federal Aviation Administration (“FAA”), which is not required to comply with the FAR but rather has its own policies and procedures, called the Acquisition Management System (“AMS”). As a result, unlike most bid protests, which may be brought either at the agency-level, Government Accountability Office (“GAO”) or the Court of Federal Claims (“COFC”), protests against the FAA contract awards (or solicitations) must . . . Read More
D.C. Circuit Weighs in on Employee’s Right to Union Representation at Disciplinary Meetings
In a recent ruling, the U.S. Court of Appeals for the D.C. Circuit has shed light on the scope of an employee’s right to union representation at an investigatory interview conducted by the employer. The prior case of NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256 (1975) confirmed that an employee must be allowed to bring a union representative to any investigatory interview that he or she is required to attend, if the employee reasonably believes that the interview could . . . Read More
New Government-Wide Category Management Policy for Package Delivery Services Could Signal Changes for Other Industries
Despite the change in Administration, the Government’s efforts to implement category management continue and are about to have a major impact in how the Government contracts for package delivery services. What is category management? Essentially, it is a Government initiative to reduce contract duplication to save money on common goods and services that the Government purchases through the federal procurement system and is also called strategic sourcing. (For more information about what category management entails, click here .) In . . . Read More
Restaurant Industry Headed To U.S. Supreme Court Over Tipping Practices
In 2014, the U.S. Department of Labor (“DOL”) Wage and Hour Division launched an aggressive enforcement initiative aimed at ensuring companies in the restaurant and food service industry comply with the federal minimum wage, overtime, and record-keeping requirements of the Fair Labor Standards Act (“FLSA”). Plaintiff-side employment lawyers took note immediately and began advertising to their target audience. It is not surprising, therefore, that servers, bartenders, and seasonal or event staff have advanced employee complaints based on alleged improper wage- . . . Read More
Subcontractor Size Status Representations – Not Identical to Rules Governing Prime Contractors
If you are a prime contractor with a small business subcontracting plan, you may wonder “when” a small business subcontractor should render its size representation, and what are the subcontractor’s obligations to rerepresent its size status, such as after a merger or acquisition. Both the SBA size regulations and the FAR are clear that a subcontractor’s representation of its size status at the time it submits its offer for the subcontract governs the subcontractor’s size status for the subcontract. Thus, subcontractors’ size . . . Read More
SBA Launches New HUBZone Map
The Small Business Administration (“SBA”) recently launched a new version of the Historically Underutilized Business Zone (“HUBZone”) map on the SBA website. The new HUBZone map designates areas as eligible HUBZone locations and indicates whether an address qualifies as one or more HUBZone designations, such as census tract, county, Indian land, disaster area, closed base area, or redesignated area. For certain types of HUBZones, like redesignated areas, disaster areas, and closed base areas, the map also indicates the date when . . . Read More