Recently in Government Contracts Category

CA Prevailing Wage Law ~ Revised Definition of "Construction"

Posted
By

On September 30, 2014, Governor Edmund G. (Jerry) Brown Jr. signed into law California Assembly Bill 26 and Assembly Bill 2272, both of which are effective January 1, 2015. Existing law requiring payment of prevailing wages defines "public work" to include, in part, "[c]onstruction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds..." Cal. Lab. Code § 1720(a). AB 26 redefines "construction" to add "work performed during the postconstruction phases of construction, including, but not limited to, all cleanup work at the jobsite." Cal. Lab. Code § 1720(a)(1). Existing law otherwise contemplates fines for failure to pay prevailing wages and makes a willful violation of laws relating to the payment of prevailing wages on public works a misdemeanor.

Additional Source: California Department of Industrial Relations, California Prevail Wage Laws

Badge of Honor ~ NJ Requires Contractors' Employees to Wear Photo ID Badge

Posted
By

Effective August 19, 2014, New Jersey Senate Bill 2363 went into effect, requiring contractors required to register under the Contractors' Registration Act, N.J.S.A. §§ 56:8-136, et seq. -- home improvement contractors -- to wear a state-issued identification badge "on the upper left corner of his torso when the contractor is performing, or engaging, or attempting to engage in the business of selling home improvements" at all times on the job. The badge includes a color photograph of the employee's face along with his/her name, and the contractor's registration number and business name. A new badge is required every six years. Governor Chris Christie signed into law S.B. 2363 on August 19, 2013. The bill was reportedly prompted by fears of potential scams on Superstorm Sandy victims. It is believed that requiring contractors' employees to wear these badges will add another layer of protection against fraud.

CONTINUE READING

City of Shasta Lake (CA) Issues Notice re Contractor Qualifications for Potable Water Projects

Posted
By

Effective January 1, 2015, all contractors bidding on or performing work within the City of Shasta Lake, California involving connects to or modifications of the City of Shasta Lake's potable (fit or suitable for drinking) water distribution system will be required to have and to maintain a Water Distribution Operator, Grade 2 certification. This requirement applies to both work performed on the City of Shasta's system under contract with the City of Shasta and to work for a private developer or property owner. If you have questions, contact Jeff Tedder, City Engineer, 530-275-7423.

CONTINUE READING

Ruling Reinforces EPA's Broad Discretionary Powers in Reviewing Corps of Engineers 404 Permitting Decisions

Posted
By

The celebrated case of Mingo Logan Coal Co. v. EPA was returned to the U.S. District Court of the District of Columbia after the Court of Appeals reversed the District Court's ruling that EPA had illegally invalidated a Army Corps of Engineers ("Corps") 404 permit issued to Mingo Logan's proposed coal mining operations in West Virginia. On March 14, 2014, the Supreme Court rejected any appeal of the DC Circuit's opinion, which is reported at 714 F. 3d 608. The District Court completed its review of the remaining APA issues and on September 30, 2014, ruled that EPA had broad authority under the law to veto a Corps permitting decision.

CONTINUE READING

Intergovernmental Immunity Protects Both the Federal Government and Its Contractor

Posted
By

On September 19, 2014, the U.S. Court of Appeals for the Ninth Circuit held that California Senate Bill 990 violates the Constitutional doctrine of "intergovernmental immunity" because it directly regulates the activities of the US Department of Energy in violation of the Supremacy Clause. S.B. 990 prescribes state radioactive cleanup standards at the Santa Susan Field Laboratory, a site which is undergoing extensive cleanup by the federal government. The case is The Boeing Company v. Movassaghi, Acting Director of the California Department of Toxic Substance Control, et al.

CONTINUE READING

Federal Contractor Employee Salaries Not So Secret Any More

Posted
By

On September 15, 2014, the Office of Federal Contract Compliance Programs (OFCCP) released its Notice of Proposed Rulemaking ("Proposed Rule") implementing President Obama's Executive Order 13665 ("EO 13665") (April 8, 2014), banning federal contractors from taking adverse action against employees and applicants who discuss their pay. EO 13665 instructs that, within 160 days of the date of EO 13665, the Secretary of Labor shall propose regulations prohibiting federal contractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or compensation of other employees and applicants. The Proposed Rule will apply to nearly all federal contracts exceeding $10,000 entered into or modified on or after the effective date.

CONTINUE READING

Corrective Action Catch 22: Court of Federal Claims Holds Agency Action Must Be Rational Even If GAO Protest Decision Was Not

Posted
By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Joël Van Over and Alex Ginsberg published their advisory titled Corrective Action Catch 22: Court of Federal Claims Holds Agency Action Must Be Rational Even If GAO Protest Decision Was Not. The Advisory discusses the U.S. Court of Federal Claims' July 15, 2014 decision in RUSH Construction, Inc. v. United States.

This decision reflects the unusual circumstance in which the court effectively sat in appellate review of an earlier bid protest decision by the Government Accountability Office (GAO) after the U.S. Army Corps of Engineers followed GAO's recommendation in that decision. The court ultimately overruled GAO when it found that it was arbitrary and capricious for the agency to follow GAO's recommendation. In so doing, the court cited numerous shortcomings in GAO's reasoning and its reliance on inapposite case law. The RUSH decision, authored by the Court of Federal Claims' new chief judge, may foretell greater judicial scrutiny of agency corrective action and a shift at the court away from deference to GAO's bid protest recommendations.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Joël Van Over or Alex Ginsberg, the authors of this blog.

Spotlight On Federal Contractors' Labor Practices

Posted
By

Recently President Obama issued an Executive Order purportedly seeking to increase efficiency and cost savings in the work performed by parties who contract with the Federal Government by ensuring that they understand and comply with labor laws. In sum, the Executive Order requires contractors seeking federal contracts to disclose labor law violations, and to require their subcontractors to do the same, and creates new compliance advisers at agencies to oversee decisions about which contractors are awarded federal work.

CONTINUE READING

CA: Public Works Contractors Online Application System

Posted
By

Recently enacted law establishes a new public works program to replace the Compliance Monitoring Unit and Labor Compliance Program requirements for bond-funded and other public works projects. Effective July 1, 2014, the California Department of Industrial Relations' (DIR) program covers all bond-funded and public works projects in the state rather than just selected processes. Public works refers to construction, alteration, demolition, installation, or repair work (including maintenance) done under contract and paid by public funds. It does not include those done by a public agency with its own employees. With minor exceptions, all workers employed on public works projects must be paid the prevailing wage determined by the Director of the DIR according to the type of work and location, and the prevailing wage rates are usually based on rates specified in collective bargaining agreements.

CONTINUE READING

CSLB: California 2014 Legislative Bills That Could Impact Contractors

Posted
By

UPDATE:
*S.B. 315, Sep. 17, 2014, Governor signed into law
*S.B. 1159, Sep. 28, 2014, Governor signed into law
*A.B. 26, Sep. 30, 2014, Governor signed into law
*A.B. 1702, Sep. 18, 2014, Governor signed into law
*A.B. 1705, Sep. 27, 2014, Governor signed into law
*A.B. 1870, Sep. 30, 2014, Governor signed into law
*A.B. 2396, Sep. 28, 2014, Governor signed into law

The California Contractors State License Board (CSLB) monitors legislation that it is sponsoring as well as bills that may have an impact on the construction industry. In its Summer 2014 Newsletter, the CSLB identifies a handful of bills that it is watching.

CONTINUE READING

Operative August 28: Revised Missouri Public Prompt Payment Act

Posted
By

On June 20, 2014, Missouri Governor signed into law Senate Bill 529. The Act revises and expands the scope of the Missouri Public Prompt Payment Act and the law relating to public works projects. The revised provisions are operative August 28, 2014. Of note, under existing law, all public works contracts made by a political subdivision for a public works project must provide for prompt payment to the contractor. Under the revised Act, these contracts must also provide for prompt payment of any professional engineer, architect, landscape architect, or land surveyor.

CONTINUE READING

Operative July 18: Revised Nebraska Construction Prompt Pay Act

Posted
By

In mid-April 2014, Nebraska Governor signed into law Legislative Bill 961. Of note, it includes revisions to the Nebraska Construction Prompt Pay Act. The Act is set forth in Nebraska Revised Statutes §§ 45-1201 to 45-1210 and Section 8 of L.B. 961. The revised provisions are operative July 18, 2014.

CONTINUE READING

English Law: When Contractual Limitations on Damages Can Backfire

Posted
By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Raymond Sweigart published his advisory English Law: When Contractual Limitations on Damages Can Backfire. The Advisory discusses AB v. CD [2014] EWCA Civ 229, in which the Court of Appeal for England and Wales addressed an issue with surprisingly little precedent. It held that a claimant seeking an injunction to prevent an alleged wrongful termination of a contract was entitled to argue that damages could not be an adequate remedy because recoverable damages were limited or excluded under the contract.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Raymond Sweigart, the author of this blog.

Effective July 1, 2014, Tennesee Changes to Invitations to Bid Process

Posted
By

On April 8, 2014, Tennessee Governor signed into law Senate Bill 1713, a bill amending by deleting the section in its entirety and substituting Title 62, Chapter 6, Part 1, § 62-6-119, relative to requirements for invitations to bid. The amended law is effective July 1, 2014.

Amended Section 62-6-119(b) will read:

CONTINUE READING

Contractor To Pay $2.4 Million Fine for DBE Fraud

Posted
By

For any contractors who have ever considered manipulating disadvantaged business enterprise (DBE) requirements as a way to obtain work, this recent FBI press release provides a cautionary tale.

According to the press release, in 2007 a Connecticut contractor was awarded a highway project, funded by state and federal sources, based on its low bid of $39.6 million. In its bid documents, the contractor had represented that a certain DBE subcontractor would perform about $3.1 million of the work, furnishing all supervision, labor, and materials. Instead, the government claims the contractor used the DBE subcontractor as a shell to pass through payment to other subcontractors that the contractor negotiated with and supervised in actual performance of the work.

Under the non-prosecution and civil settlement agreement reached between the government and the contractor, the contractor agreed to a number of reforms, such as establishing an Ethics and Compliance Officer and removing the personnel directly involved in the scheme, in addition to paying a $2.4 million fine. The non-prosecution agreement only addressed the contractor's corporate criminal liability--the government's investigation of individuals continues.