USDA Proposes Resuscitating Rule to Blacklist Government Contractors for Labor Law Violations
On February 17, 2022, the United States Department of Agriculture (USDA) proposed a rule to update its Agriculture Acquisition Regulation (AGAR), which has not had a major revision since 1996. One component of the proposed rule requires USDA contractors to maintain compliance with a broad range of labor and employment laws and regulations in order to do business with the USDA. These requirements are strikingly similar to the Obama-era Fair Pay and Safe Workplaces Executive Order (nicknamed “the blacklist rule”). Contractors . . . Read More
DOL Updates Language on Service Contract Act Wage Determinations AGAIN!
An executive order increasing the minimum wage for non-exempt employees working on specified types of federal contracts took effect January 30, 2022. However, recent wage determinations issued by the Department of Labor (DOL) fail to appreciate that contracting officers are supposed to modify contracts to include the applicable Federal Acquisition Regulation (FAR) before the new minimum wage provisions are effective. Raising wages prior to proper incorporation of the applicable FAR provision risks a government contractor’s eligibility for a contract price . . . Read More
OFCCP’s Growing Activism Portends Stricter Enforcement
The Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) has taken several actions during the past six months that signal it will adopt a more forceful posture in ensuring that federal contractors meet their affirmative action and non-discrimination obligations toward their workforce. To prepare themselves for heightened scrutiny and tighter deadlines, government contractors should take steps now to set up their records for quick retrieval during OFCCP audits and rectify any unjustified pay disparities among their employees. . . . Read More
Fraud Allegations Could Bedevil Borrowers in SBA COVID-19 Relief Programs for Many Years
As everyone who has been tracking the COVID-19 relief programs since 2020 knows, at the outset there was massive confusion about the programs’ requirements as well as fear that funding could run out before businesses with uncertain futures could secure assistance. Now, two years later, we have heard from numerous clients who have received notice that the Small Business Administration (SBA) intends to audit the Paycheck Protection Program (PPP) Loan or Economic Injury Disaster Loan (EIDL) applications, and even of . . . Read More
Federal Circuit Clarifies the Scope of Incorporation by Reference
A recent Federal Circuit decision supplies helpful direction to contractors wishing to incorporate their standard commercial terms and conditions into their government contracts. The federal government often claims that it wants to make its contracting process more like the commercial marketplace, but the government does not make it easy for commercial companies to do business with it. CSI Aviation, Inc. v. Dep’t of Homeland Security highlights the potential confusion surrounding the terms and conditions governing government contracts for commercial products or services. There, the contractor succeeded after several . . . Read More
SBA Requests Comments on Potential Change in Size Standard for Resellers
On April 26, 2022, the U.S. Small Business Administration (SBA) issued a proposed rule regarding its small business size standards for federal contractors in manufacturing and other industries with employee-based size standards. Small business federal contractors should take note of the proposed changes and consider whether to address this proposal by submitting a public comment by the June 27 deadline. SBA’s proposals include potential increases in the size standards for 150 industries. These include the size standard for surgical appliance and supplies manufacturing . . . Read More
COVID-19 Paid Sick Leave Laws Could Show Emerging Compliance Trends for Employers
Since the onset of the pandemic, many states and localities have passed COVID-19 supplemental paid sick leave laws requiring employers to provide leave to employees for COVID-19-related reasons. California and Colorado have gone beyond many other states by adding to the required amount of sick time. These laws present unique administrative compliance challenges and financial burdens on employers who must prepare for employees’ additional paid COVID-19-related absences. Even employers with no employees in California and Colorado should be mindful, however, . . . Read More
OHA Confirms M&A-Related Recertification Won’t Impact Contractor’s Eligibility Under Pre-Existing, Set-Aside Contracts
For small businesses, navigating the recertification rules promulgated by the Small Business Administration (SBA) is no easy task. SBA rules generally provide that the size of a concern is determined at the date of its initial offer including price and if the firm is small at that time, it generally will be considered small throughout the life of the contract. However, if a concern undergoes a merger, sale, or acquisition, or novates its small business contract to another concern (each . . . Read More
GSA Moratorium on Enforcement of Economic Price Adjustment Provisions: 3 Important Takeaways for Government Contractors
In response to rising costs for government contractors amid skyrocketing inflation, the General Services Administration (GSA) is temporarily suspending the enforcement of many limitations contained in several Economic Price Adjustment (EPA) contract clauses. Below we summarize three important takeaways for federal contractors—especially small businesses and small-disadvantaged businesses—to help you manage your GSA contract performance in light of rapidly changing economic circumstances. The GSA’s March 17, 2022, acquisition letter establishing the moratorium applies to these EPA contract clauses: GSAR 552.216-70 Economic . . . Read More
The Significance of Equal Pay Day for Federal Contractors
This past Tuesday, March 15, marked Equal Pay Day, a day signifying how far into this year women (across all races and ethnicities) had to work to earn what men were paid in 2021. While the topic of pay equity is not new, recently there has been growing momentum on the state and federal levels to strive towards equal pay across genders. We previously wrote about the changing landscape on the pay equity front here . To commemorate Equal Pay Day, . . . Read More