Gravel2Gavel Construction & Real Estate Law Blog
Under the President’s Executive Order 14275: Restoring Common Sense to Federal Procurement, the government is undertaking a comprehensive overhaul of the Federal Acquisition Regulation (FAR). Led by the Office of Federal Procurement Policy (OFPP) and the Federal Acquisition Regulatory Council (FAR Council), the initiative aims to “return the FAR to its statutory roots,” regulate in plain language, and remove superfluous words and references. On August 27, the FAR Council released its revisions to FAR Part 33, which addresses Bid Protests, Contract Claims and Appeals of Contract Claims. We completed our deep dive into the Subpart 33.2 portion of the rewrite, which addresses claims and appeals. Construction companies that perform government contracts should welcome the changes rather than fear them.
Articles Posted in Government Contracts
Understanding SBA Loan Opportunities Under the CARES Act Amidst COVID-19
The CARES Act provides $350 billion for small business Paycheck Protection Loans and an additional $10 billion for the existing Economic Injury Disaster Loan program. Colleague David Miller describes the new Paycheck Protection Loan Program and the existing Economic Injury Disaster Loan Program below. These are complex programs, with regulations still being developed by the Small Business Administration.
Government Contractors Impacted by COVID-19 Orders
An increasing number of States—now numbering 23, as well as the District of Columbia and many counties and cities, are now subject to Executive Orders restricting activity of non-essential businesses. In “Numerous Jurisdictions Have Now Issued COVID-19 Orders Impacting Government Contractors,” colleagues John E. Jensen, Alex D. Tomaszczuk, Marques O. Peterson and Robert Starling discuss how the Varied Executive Orders, in increasing numbers, have closed nonessential businesses and services across the country, with a variety of implications for government contractors.
The Small Business Runway Act Takes Off in January
On December 5, the U.S. Small Business Administration (SBA) issued a final rule to implement the Small Business Runway Extension Act of 2018. In “Small Business Runway Act to Become Effective January 6, 2020,” colleagues Richard B. Oliver, David B. Dixon and Robert Starling break down exactly what this means for contractors seeking to determine eligibility as a small business for federal procurements.
Two Executive Orders Take Aim at Use of Guidance Documents
Not to be lost in the holiday hustle and bustle, two Executive Orders from October could, if fully implemented, significantly affect federal administrative law. In “Trump Issues Executive Orders to Rein In Use of Guidance Documents in Enforcement Proceedings,” colleagues Matthew W. Morrison, Mark E. Elliott and Anthony B. Cavender take a closer look at E.O. 13891 and E.O. 13892.
Court Holds Salary Costs Associated with Lobbying Activities Are “Expressly Unallowable”
A recent decision by the Court of Appeals for the Federal Circuit could have lasting ramifications for government contractors. In Raytheon Co. v. Sec. of Def., the court held that salary costs associated with lobbying activities are expressly unallowable, and therefore subject to penalties. In “Federal Circuit Decision Addressing Salary Costs Associated with Lobbying Activities Has Broad Implications,” colleague Aaron S. Ralph examines the October 18 decision more closely.
Supreme Court Allows Construction to Proceed on Southern Border
On July 26, 2019, the U.S. Supreme Court ruled that the Trump administration can access $2.5 billion in Defense Department funds to replace and enhance sections of barrier along the southern border in Arizona, California and New Mexico. The Court’s 5-4 decision in Trump v. Sierra Club stayed an injunction and let the administration access funds that were frozen by decisions of a federal district court in California in May and the Ninth Circuit Court of Appeals (agreeing with the district court) on July 3. The significance of the decision is that the administration can now move forward with the work—for which contracts have already been awarded, but not finalized—while litigation brought by environmental groups proceeds in lower courts, a process that will take several months.
Trump Administration’s Proposed Overtime Rule Would Reclassify a Significant Number of Exempt Employees
Today, Pillsbury attorneys Julia Judish and Rebecca Carr Rizzo published their Client Alert titled How Employers Should Respond to the Trump Administration’s Proposed Overtime Rule. The Alert discusses the Trump Administration’s Notice of Proposed Rulemaking (NPRM) for amending the federal Fair Labor Standards Act (FLSA) so-called “white collar” exemptions. The new rule would formally rescind the Obama Administration’s 2016 Final Rule.
The Obama Administration 2016 Final Rule would have more than doubled the minimum salary level for executive, administrative, and professional employees to be classified as exempt from overtime and minimum wage requirements (the EAP exemption) and increased the minimum salary level by a third for highly compensated employees (the HCE exemption), with automatic increases every three years (the “2016 Final Rule”).
OFCCP’s Listening Sessions and Program Changes
Today, Pillsbury attorneys Glenn Sweatt and Julia Judish published their Client Alert titled OFCCP Conducts Town Hall Meetings for Tech Industry Contractors and Implements Program Changes. Takeaways from the Alert include:
- The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has made several high-profile pro-contractor changes in the last 18 months
- As relationships with technology industry firms have not always reflected a “kinder and gentler” OFCCP, OFCCP held a town hall “listening session” in Silicon Valley for tech contractors to express their concerns
- Notwithstanding the outreach and public relations efforts, speaking points during these sessions were weighted between enforcement and voluntary compliance, and attendees had mixed reactions to OFCCP comments
DC District Court Follows Ninth Circuit’s Lead Dismissing NABA’s Border Wall Case
On February 14, the U.S. District Court for the District of Columbia dismissed the complaint of the National American Butterfly Association (NABA) alleging that the U.S. Government’s border wall preparation and law enforcement activities at NABA’s National Butterfly Center, located in South Texas along the Rio Grande River, violated federal environmental laws (National Environmental Policy Act (NEPA)) and the Endangered Species Act (ESA)) as well as NABA’s constitutional rights. The case is National American Butterfly Association v. Nielsen, et al.