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Government Contracts Legislative and Regulatory Update – May 2017

Our May edition of “Government Contracts Legislative and Regulatory Update” offers a summary of the relevant changes that took place during the month of April.
Highlights this month include:

  • Trump’s “Buy American, Hire American” executive order advances his domestic preference agenda, but its impact may not be felt for months
  • Office of Information and Regulatory Affairs issues guidance for implementing 2-for-1 executive order
  • Former SECDEF Ash Carter’s flagship defense innovation initiative to continue under SECDEF Mattis and President Trump

This update will also be available in Contract Management Magazine, which is published monthly by the National Contract Management Association (NCMA).

To read the newsletter, please click here.

Government Contracts Legislative and Regulatory Update – May 2017

Government Contracts Legislative and Regulatory Update – April 2017

Our April edition of “Government Contracts Legislative and Regulatory Update” offers a summary of the relevant changes that took place during the month of March. Highlights this month include:

  • President Trump signs resolution revoking President Obama’s Fair Pay and Safe Workplaces EO and implementing regulations
  • House of Representatives passes $578 billion defense appropriations bill
  • Congress’s timeline to pass appropriation bills sparks fear of another government shutdown
  • This update will also be available in Contract Management Magazine, which is published monthly by the National Contract Management Association (NCMA).

    To read the newsletter, please click here.

     

Government Contracts Legislative and Regulatory Update – April 2017

Government Contracts Legislative and Regulatory Update — January 2017

 

 

 

 

 

 

Our January edition of “Government Contracts Legislative and Regulatory Update,” offers a summary of the relevant changes that took place during the month of December. Highlights this month include:

  • President Obama signed into law legislation which extends and cements whistleblower protection for certain contractor employees
  • FAR Council issues final rule amending the FAR in response to injunction of certain Fair Pay and Safe Workplaces rules
  • DoD issues class deviation regarding controversial IR&D costs rule
  • FAR Council issues final rule mandating privacy training for contractor employees privy to PII

This update will also be available in Contract Management Magazine, which is published monthly by the National Contract Management Association (NCMA).

To read the newsletter, please click here

Government Contracts Legislative and Regulatory Update — January 2017

Government Contracts Legislative and Regulatory Update — December 2016

legreg-update

We are pleased to bring you the December edition of “Government Contracts Legislative and Regulatory Update,” a summary of the relevant changes that took place during the month of November. Highlights this month include:

  • Compromise version of the National Defense Authorization Act for FY 2017 nears completion
  • FAR Council issues a final rule requiring representation of contractor greenhouse gas emission disclosures
  • BIS issues a final rule to remove arms embargoes against certain countries
  • DoD proposes a rule that would increase contractors’ evaluated bid prices by including allowable IR&D expenses

This update will also appear in Contract Management Magazine, which is published monthly by the National Contract Management Association (NCMA).

On behalf of Dentons, we wish you and your loved ones a happy holiday season and a prosperous new year!

To read the newsletter, please click here

Government Contracts Legislative and Regulatory Update — December 2016

Government Contracts Legislative and Regulatory Update – October 2016

legreg-update

The October edition of  “Government Contracts Legislative and Regulatory Update” offers a summary of the relevant changes that took place during the month of September. This update will also be available in Contract Management Magazine, which is published by the National Contract Management Association (NCMA).

We wish to thank our readers for the positive and encouraging feedback we received last month when we launched this monthly newsletter. Our aim is to keep you up-to-date on legislative and regulatory changes relevant to government contractors, so please keep the feedback coming.

To read the newsletter, please click here.

Government Contracts Legislative and Regulatory Update – October 2016

Government Contracts Legislative and Regulatory Update

legreg-update

We are pleased to offer you the inaugural issue of our newsletter, “Government Contracts Legislative and Regulatory Update.” Our aim is to keep you up-to-date on legislative and regulatory ‎changes relevant to government contractors.

For decades, we have provided a similar update to the National Contract Management Association for publication in its monthly Contract Management Magazine. Our clients have told us they find the succinctly presented information helpful, so we decided to offer the update directly to our clients and friends.

We hope that you will find it useful and welcome your feedback.

 

 

Government Contracts Legislative and Regulatory Update

Legislative Watch: Potential Changes That May Affect Responsibility Determinations

As we report in more detail in the upcoming Legislative and Regulatory Update, appearing in the April issue of NCMA Contract Management Magazine, Congress has recently taken two noteworthy legislative actions that could greatly affect contractor responsibility determinations.

On April 15, the House unanimously passed the Contracting and Tax Accountability Act of 2015 (H.R. 1562).  If enacted, this bill would require contractors to certify that they have no “seriously delinquent tax debts” when submitting a bid or proposal for any contract or grant in excess of the simplified acquisition threshold.  For the purposes of the bill, a “seriously delinquent tax debt” includes any federal tax liability assessed by the Secretary of the Treasury under the Internal Revenue Code that can be collected by levy or court proceeding, with some exceptions.  Should a contractor admit that it does have a seriously delinquent tax debt within this definition, the bill would require contracting officers to find that the contractor is not presently responsible and, absent a waiver for urgent and compelling circumstances, would require agencies to initiate a suspension or debarment proceeding.  With such serious consequences—as well as  the potential for False Claims Act liability should a party incorrectly certify its tax liability status—contractors should keep an eye out for this bill as it works its way through the Senate.  Should the bill be enacted, contractors must facilitate open communication between their departments to ensure parties making these certifications are fully apprised of the company’s tax liability status.

Also introduced in April is the Small Business Fairness Act (S. 958), which would broaden the scope of information a contracting officer examines when making a past performance or financial responsibility determination for small businesses proposing a team of subcontractors or a joint venture.  The bill would require contracting officers to consider the capabilities and past performance of each first-tier subcontractor of the proposed team; or, if a joint venture is proposed and the joint venture does not have sufficient capabilities or past performance to be considered, the contracting officer would then consider the capabilities and past performance of each member as the capabilities and past performance of the whole.  In addition, the bill would require contracting officers to certify annually that each small business member of a team or joint venture has retained the same status—small business, qualified HUBZone small business, small business owned and controlled by service-disabled veterans, and so on—under which it was awarded the contract.  To the extent this bill could act to limit small businesses from continuing to perform contracts after a change in status, it would have a significant effect on contractors.

To be certain, these bills could have significant effects on contractors of all types if enacted.  We will continue to monitor their progress as they move through Congress.

Legislative Watch: Potential Changes That May Affect Responsibility Determinations

Minimum Wage Hike May Be First Of Many New Labor Obligations For Federal Contractors

During the recent State of the Union Address, President Obama announced that he is preparing to sign an Executive Order raising the minimum wage to $10.10 per hour for those working on future federal contracts for services.  According to a “Fact Sheet” posted online by the White House, the Order would cover “workers who are performing services or construction and are getting paid less than $10.10 an hour.”  It would apply only to new contracts after the effective date of the Order.

All federal contractors with employees performing covered work should begin to prepare now for the likely issuance of this Order.  Covered contractors should review their current and intended future payroll practices to assess compliance with this increased minimum.  Moreover, prudent contractors may review their entire payroll structure to gauge the potential impacts of wage compression at other levels of compensation – e.g., what impact will this new minimum wage have on employees currently earning $10-11 per hour, etc.  Wage compression can be a source of employee friction and discontent, which can lead to broader legal challenges for employers.

There are almost certain to be legal challenges to the Order itself, brought on in part by apparent conflicts between the President’s announced intent and the McNamara-O’Hara Service Contract Act (SCA).  The SCA requires certain federal contractors and subcontractors to pay service employees at minimum wage rates expressly spelled out in their service contracts with the government.  Section 6703 of the SCA, however, provides that the specified minimum wage to be paid under a particular service contract is to be:

determined by the Secretary or the Secretary’s authorized representative, in accordance with prevailing rates in the locality, or, where a collective-bargaining agreement covers the service employees, in accordance with the rates provided for in the agreement, including prospective wage increases provided for in the agreement as a result of arm’s length negotiations.  (Emphasis supplied)

This statutory provision – requiring an Act of Congress to amend – may provide grounds for challenging such an Executive Order.  Clearly, if $10.10 per hour were a “prevailing rate” for the covered work in a variety of jurisdictions, there would be little, if any, impetus for this intended increase.

Moreover, contractors should remain vigilant as this may be just the first announced step in a longer-term agenda of increased regulatory aim at the nation’s government contractors.  As we reported on our blog, LaborRelationsToday, just last month, the Senate Health, Education, Labor and Pensions (HELP) Committee, unveiled a Committee report, titled “Acting Responsibly? Federal Contractors Put Workers Lives and Livelihoods at Risk.” The lengthy report recommends significant changes to the federal contracting process to “ensure that taxpayer dollars are spent in a way that promotes compliance with federal law and improves the quality of life for working Americans.” Among its recommendations, the HELP Committee believes it is necessary to increase the availability to contracting officers of DOL and GSA information on workplace safety and labor law violations; and, establishing tools beyond the existing determination, suspension and debarment processes, that contracting officers can use to increase compliance with federal labor laws.

Contractors looking a little farther down the road may consider performing a thorough audit of their labor and employment policies and practices, to prepare for compliance with an increasingly complex and rigorous set of legal obligations.

Minimum Wage Hike May Be First Of Many New Labor Obligations For Federal Contractors