Articles Posted in Government Contracts

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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”).

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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:

  1. 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
  2. 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
  3. 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

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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.

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Today, our colleagues David Dixon, Meghan Doherty and Toghrul Shukurlu published their Client Alert titled FAR’s Professional Compensation Clause and Keeping Things Real. The Alert discusses the U.S. Court of Federal Claims’ recent decision in Sparksoft Corp. v. U.S., an action involving Sparksoft Corp.’s protest of a pre-award decision of the Department of Health and Human Services, Centers for Medicare & Medicaid Services (DHS) not conduct a realism analysis on the professional compensation rates embedded within the firm-fixed-price (FFP) component of bids submitted under the solicitation.

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Yesterday, our colleagues Alex Ginsberg, Travis Mullaney and Meghan Doherty published their Client Alert titled Government Contract Acquisitions and the Pending Proposal Problem. Their Alert discusses the U.S. Government Accountability Office’s (GAO) decision in Wyle Laboratories, Inc., a decision raising significant questions as to the viability of proposals that are submitted before or during, and remain pending after, a government contract acquisition.

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On February 11, the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s decision to grant a motion for summary judgment disposing of a complaint that the decision of the Secretary of Homeland Security (DHS) to expedite construction of border barriers in the San Diego and Calexico, CA border crossing areas was inconsistent with the Secretary’s powers under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as well as  the National Environmental Policy Act (NEPA) and other authorities. The case is In Re Border Infrastructure Environmental Litigation (Center for Biological Diversity, et al., v. U.S. Department of Homeland Security, et al.).

“As a threshold matter, we have jurisdiction to consider the ‘predicate legal question’ of whether IIRIRA authorizes the contested projects. Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS.”

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A Resolution has been proposed to the House for consideration that would recognize the Federal Government’s duty “to create a Green New Deal.”  It sets forth a very ambitious 10-year program to mobilize and transform every aspect of American life to combat the threats of climate change by transitioning to an economy based upon 100% clean and renewable energy.

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President Trump signed an Executive Order yesterday January 31, calling on executive branch departments and agencies to encourage recipients of defined types of new federal awards to use cement, iron, steel, aluminum and certain manufactured products produced in the United States. The order builds on prior authority (Executive Order 13788 (April 18, 2017)) focused on procurements by the departments and agencies themselves. The new order extends the “Buy American” conversation to private parties that receive new support, to promote the use of domestic sources in their onward purchases.  It addresses programs that receive Federal financial assistance, 2 C.F.R. § 200.40, for creation, maintenance or repair of infrastructure projects.

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In case you missed it, on January 7, Pillsbury attorneys David Dixon, Dick Oliver, and Toghrul Shukurlu published their Client Alert titled Small Business Holiday Gift: Change to Small Business Act May Affect Size Status for Many Service Providers. Takeaways from their Client Alert include:

  • The Small Business Runway Extension Act of 2018 will allow some service contractors who would have otherwise outgrown their applicable size standard to remain eligible for small business set-aside contracts.
  • This Act may also negatively affect certain large businesses with declining revenues by extending the period before they can become eligible for small business set-aside contracts.
  • Small and large business concerns that have recently outgrown their size standards should be aware of this change in the method of calculating their average annual revenues when conducting business planning.

The Small Business Administration (SBA) has stated that the increased time period for calculating average annual revenues will not take effect until the SBA issues a final regulation implementing this change.

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In Is the Pendulum Swinging on Agency and Government Contractor Cooperation?, Pillsbury attorneys Mike Rizzo, Glenn Sweatt and Kevin Massoudi discuss comments from the Department of Defense as well as recent good faith and fair dealing court decisions that point to and encourage improved contractor/government relationships. Their key takeaways include

  • Government officials are actively encouraging collaboration with, and less antagonism of, industry contractors.
  • Recent Boards and Court of Federal Claims construction decisions suggest a growing trend of awarding damages to contractors when the government breaches the duty of good faith and fair dealing.
  • Contractors seeking to take advantage of these trends should explore formal partnering with their government  clients to reduce future claims and early alternative dispute resolution options to resolve existing disputes.