Proposed Rule Expected for White-Collar FLSA Overtime Exemptions
Secretary of Labor Thomas Perez announced yesterday that the U.S. Department of Labor has submitted a proposed rule on the white-collar FLSA overtime exemptions to the Office of Management and Budget (OMB). The proposed rule is in response to President Obama’s March 13, 2014 directive to the Secretary to revise the current regulations because of actual or perceived abuses of the exemptions and because the salary basis test has failed to rise at the rate of inflation. The salary threshold . . . Read More
WOSBs: Now It’s Your Turn
By Ann Sullivan, Madison Services Group, Inc. Published in PilieroMazza’s Second Quarter 2015 Legal Advisor by guest author Ann Sullivan of Madison Services Group. In the coming days, the SBA is expected to issue proposed rules to implement sole source authority for the WOSB Federal Contracting Program. To be clear, as many are anxiously waiting, sole source authority is not yet available. But for those following the program, the hopefully-soon implementation will mark the final step in a 15-year crusade to start and strengthen a small . . . Read More
Another Option for Speedy Relief from an Adverse Agency Action
By Alex Levine A recent and novel decision by the U.S. Government Accountability Office (“GAO”) could have broader implications for small business contractors that hold federal supply schedule and multiple award contracts. In the case, Latvian Connection, LLC, a small business contractor was able to successfully challenge its exclusion from FedBid, a reverse auction platform run by a private company where sellers compete against each other for federal procurement contracts. FedBid had sought to suspend Latvian Connection’s account under a . . . Read More
Don’t Sit on Your Hands: Intervene at OHA If the NAICS Code Matters to You
By Michelle Litteken A recent decision from the Federal Circuit clarified whether the Court of Federal Claims (“COFC”) has jurisdiction to review the selection of North American Industry Classification System (“NAICS”) codes and reminded small business contractors of the need to exhaust administrative remedies—including intervening in protests at the Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”)—before challenging a NAICS code designation in court. Palladian Partners, Inc. v. Unites States, No. 2014-5125 (Fed. Cir. Apr. 22, 2015), involved . . . Read More
OHA Ruling Shows Danger in Proposed SBA Rule
As the saying goes, unless you have been living under a rock, then you know that SBA recently proposed new rules to create a mentor-protégé program for all small businesses. Less well known, however, is a provision included with the proposed mentor-protégé rules that would dramatically alter how applicants in non-designated groups qualify for the 8(a) Program. SBA is seeking to change the rules for establishing social disadvantage so the agency could reject a claim of social disadvantage if . . . Read More
Reporting Requirements and Diminishing Profits for Government Contractors
Firms bidding on government contracts are well-advised to sharpen their pencils in the current, highly-competitive market. Doing so usually means one thing: lowering prices. With procuring agencies placing a premium on technically acceptable, lower-priced proposals, only those bidders willing to absorb cost and reduce profit margins are likely to succeed in winning new work. The price of that success, however, may be much higher than many firms realize. While the government is expecting—if not demanding—that contractors perform more with less, . . . Read More
Possible Trouble for Contractors Who Use Consultants to Prepare Proposals
A recent GAO decision highlights the importance of understanding the extent to which the government’s request for proposals (RFP) allows for the use of consultants in assisting with proposal preparation. In Matter of Advanced Communication Cabling, Inc., B-410898.2 (2015), GAO denied a protest that challenged an RFP prohibition on the use of consultants to assist with proposal preparation as being unduly restrictive of competition. The RFP, issued by the Department of Veterans Affairs (VA) in November 2014, anticipated the award of up to 20 indefinite-delivery/indefinite-quantity . . . Read More
Consequences for Large Primes Not Hitting Subcontracting Plan Goals
By Katie Flood The U.S. Government Accountability Office (“GAO”) recently ruled that the Defense Logistics Agency (“DLA”) properly excluded a large business prime contractor’s proposal from the competitive range based in part on the contractor’s consistent failure to meet its small business subcontracting goals on previous contracts. In Graybar, B-410886 (Mar. 4, 2015), the large business prime contractor, Graybar, protested DLA’s exclusion of Graybar’s proposal from the competitive range. Specifically, Graybar challenged DLA’s assignment of deficiencies under the past performance factor, for . . . Read More
When A Protest Isn’t A Protest
In her familiar soliloquy in Shakespeare’s Romeo and Juliet, while longingly looking out of her window, Juliet said of her new-found love, Romeo: “What’s in a name? That which we call a rose/By any other name would smell as sweet.” Perhaps in a similar vein, Gertrude Stein cryptically wrote “a rose is a rose is a rose.” Law, however, operates with a very different logic. A recent decision issued by the U.S. Court of Appeals for the Federal Circuit (“Federal . . . Read More
Supreme Court Ruling Increases Potential Liability for Employers Failing to Accommodate Pregnant Employees
By Corey Argust On March 25, 2015, the Supreme Court reinstated a pregnancy discrimination suit that the Fourth Circuit Court of Appeals had previously decided in favor of the employer. The decision in Young v. United Parcel Service, Inc., 575 U.S. ____ (2015), opens the door to potential liability for employers with disability accommodation policies that formerly appeared to be nondiscriminatory. Peggy Young, the plaintiff in Young v. United Parcel Service, Inc. was a former, part-time . . . Read More