Source: http://feedproxy.google.com/~r/twistermc/~3/bglCETv5Il0/
Sunday, July 31, 2011
Goodbye crib. Hello toddler bed.
I don’t know if I’m ready for this or not, but here we go. Lily’s crib has officially been converted to a toddler bed. She’s yet to see it as she’s been at grandmas for the past few days, but … Continue reading
The fastest browser on my Mac is Firefox 5.
I tested four browsers with the SunSpider tests and it turns out that Firefox 5 was faster than Chrome, Safari and Opera. This was quite surprising to me as it beat out Chrome but quite a bit. It’s also interesting … Continue reading
Source: http://feedproxy.google.com/~r/twistermc/~3/nw12xMmWK6A/
Sometimes parenting is messy.
While taking our daily photo, I must have spun Lily�around�one to many times as she gave back some of her dinner. Sometimes parenting is messy. originally posted at http://www.twistermc.com
Source: http://feedproxy.google.com/~r/twistermc/~3/B3uHiC0YkYo/
Jul 8, Steam Shower Units: Steam Shower Jacuzzi Combo
Steam Shower Jacuzzi Combo This is an absolutely awesome steam shower unit. It is the most elaborate of the steam shower units we have reviewed. It
Source: http://www.diy-bathroom-remodel.com/steam-shower-units-steam-shower-jacuzzi-combo.html
Jun 18, Discount Bathroom Accessories: Hearts & Stars Bath Accessory Set
Hearts & Stars Bath Accessory Set The dreamy home inspired artwork of this Hearts and Stars Bathroom Accessory Set imagined and created by Linda Spivey
Saturday, July 30, 2011
New Law Prohibits Withholding of Retainage on Federally Funded Transportation Projects in Washington State
A new law in Washington State will prohibit public agencies from withholding retainage on public works projects funded in whole or in part by federal transportation funds.
Instead, the parties normally protected by retainage will be protected through the contractor's payment bond. The new law goes into effect on July 22, 2011. It will affect not only the Washington State Department of Transportation (WSDOT), but local agencies receiving federal transportation funds directly from WSDOT or directly from the U.S. Department of Transportation (USDOT).
Background: The legislation, approved as SHB 1384 by the Washington State Legislature, was introduced in response to USDOT regulations designed to help increase cash flow to small businesses by ensuring either prompt payment of retainage or by not withholding retainage. The new law is an amendment to RCW 60.28.011. Here's the text of the addition to the RCW:
"Public improvement contracts involving the construction, alteration, repair, or improvement of any highway, road, or street funded in whole or in part by federal transportation funds shall rely upon the contract bond as referred to in chapter 39.08 RCW for the protection and payment of: (i) The claims of any person or persons arising under the contract to the extent such claims are provided for in RCW 39.08.010; and (ii) the state with respect to taxes imposed pursuant to Titles 50, 51, and 82 RCW which may be due. The contract bond must remain in full force and effect until, at a minimum, all claims filed in compliance with chapter 39.08 RCW are resolved."
Complex Implementation Issues: Implementing the new law is a complex subject and I have outlined below some of the many issues that public agencies will need to consider in consultation with their attorneys. My apologies for the length of this blog entry, but there are many issues to cover.
Effective Date: SHB 1384 is not explicit about whether it is effective only for new contracts awarded on or after July 22, 2011, or whether it also applies to current contracts for which payments will be made to contractors on or after July 22, 2011. However, given the fact that WSDOT has been in negotiation with USDOT for a number of years about whether Washington needed to comply with the federal retainage regulations, my sense is that the intent of the legislation is that it would be effective for any payments made on or after July 22, 2011 and not just for new contracts.
Changes in Payment Bonds: Public agencies in Washington State using federal transportation funds on public works projects (those "involving the construction, alteration, repair, or improvement of any highway, road, or street") will need to be aware of at least three issues related to payment bonds:
- Protect State Agencies with Payment Bonds: One of the impacts of SHB 1384 is that all of parties protected under retainage (subcontractors, suppliers, workers, and the state Departments of Revenue, Employment Security, and Labor and Industries) must be identified as protected parties in the payment bond. Currently, payment bonds do not provide protection for the three state agencies. Thus, payment bonds for projects funded by federal transportation funds must be modified to include Revenue, Employment Security, and Labor and Industries as protected parties.
- Duration of the Payment Bond: According to SHB 1384, the payment bond "must remain in full force and effect until, at a minimum, all claims filed in compliance with chapter 39.08 RCW are resolved." The parties listed in chapter 39.08 RCW as being protected by the payment bond are described as "laborers, mechanics, and subcontractors and material suppliers." Thus, payment bonds will need to include language indicating how long the bond remains in effect. From my perspective, what is not addressed by SHB 1384 is whether the payment bond must also remain in effect until any claims filed by either the departments of Revenue, Employment Security, or Labor and Industries are resolved. These agencies are not listed as claimants under chapter 39.08 RCW. Public agencies may want to consider having the payment bond remain in effect until all claims (private and public) are resolved, even though the new law doesn't appear to address the public claims from the state agencies.
- New Payment Bonds for Current Projects? If public agencies determine that SHB 1384 applies to any payments on current projects made on or after July 22, 2011, the agencies would need to pay future retainage to the contractors and obtain a revised payment bond adding the departments of Revenue, Employment Security, and Labor and Industries as protected parties under the bond. And, of course, some agencies may interpret SHB 1384 as requiring release of previously held retainage on current projects.
Changes in Contract Language: Contracts affected by SHB 1384 will need to delete standard language requiring the withholding of retainage (or obtaining a retainage bond) and replace it with language describing that the parties normally protected by retainage will, instead, be protected by the payment bond. Depending on how public agencies interpret the effective date of the new law (current contracts or only new contracts entered into after July 22, 2011), there may need to be change orders executed deleting the retainage requirements. It is my understanding that WSDOT has developed revised specification language to address SHB 1384, but I haven't seen or reviewed such language.
Impact on Projects with Partial Federal Funds: If a public agency has a public works project that is funded partially with federal transportation funds, and partially with state, local, or other federal funds, does the new law still apply? The language of SHB 1384 is that it applies to public works projects "funded in whole or in part by federal transportation funds." Thus, even if only part of the project is funded with federal transportation funds, the requirement to not withhold retainage would apply. The general principle on the applicability of federal requirements is that any federal money brings with it all of the federal requirements. This is certainly what applies when it comes to the applicability of federal prevailing wages.
Potential Impacts of the New Law: While SHB 1384 is a necessary step in order to ensure that the state continues to receive federal transportation funds, there are some potential impacts that may materialize, including the following:
- Different Process for Collecting on Claims: Claims by subcontractors, suppliers, and workers against retainage are decided by the courts. With the new law, such claims will be protected by the payment bond. Thus, claimants, instead of going to court to collect on claims, will need to make their claim to the bonding company and attempt to collect from the surety.
- Public Agency Rights Eliminated: Under RCW 60.28.021 dealing with retainage, after all claims have been resolved, "the public body may withhold from the remaining retained amounts for claims the public body may have against the contractor." However, under the new law, the payment bond is only designed to protect the parties described in RCW 39.08.010 ("laborers, mechanics, and subcontractors and material suppliers") and the three state agencies (Revenue, Employment Security, and Labor and Industries). It appears that the interests of public agencies have been eliminated in SHB 1384. In theory, a public agency could contractually require the payment bond to include this protection for the agency in the event of claims.
- Increased Bond Costs: Under SHB 1384, the cost of a payment bond premium to contractors may increase based on additional financial liability to bonding companies, an added cost that may be passed onto public agencies. Bonding companies may pick up additional liability in two areas: 1) Prior to SHB 1384, it is typical that claims filed by subcontractors, suppliers, and workers subject to prevailing wages are first handled by retainage, and in the event retainage is not sufficient to cover all claims, through the payment bond. Under the new law, with no retainage, claims would go directly against the payment bond, thus increasing the potential liability of bonding companies. 2) Prior to SHB 1384, a payment bond only protects subcontractors, suppliers, and workers subject to prevailing wages. Under SHB 1384, three state agencies are added as protected parties under the payment bond, thus increasing the financial exposure of the sureties.
- More Bonds Required for Subcontractors? SHB 1384 does not prohibit contractors from withholding retainage from subcontractors. Even though they may continue to do so, with the added financial exposure of bonding companies (see paragraph above), it is possible that sureties may begin to require contractors to also obtain bonds from their subcontractors in an effort to limit their added financial liability under the contractor's payment bond. If this occurs, it would be unfortunate. The impetus for the federal regulations and the new law on not withholding retainage is to ensure prompt payment to contractors, but it may result in some subcontractors not being able to participate on public works projects funded with federal transportation funds because of their inability to obtain a payment bond. The ability to obtain bonding has historically been a problem for small, disadvantaged, minority, and women owned businesses.
Practical Tip: Consult with your attorneys in making decisions on how to implement SHB 1384. Please contact me if you have questions, comments, or different approaches or thoughts on this new law.
Mike Purdy's Public Contracting Blog� 2011 by Michael E. Purdy Associates, LLChttp://PublicContracting.blogspot.com
Copyright 2011 by Michael E. Purdy Associates, LLC - http://www.mpurdy.com
before & after: trolley depot renovation
It’s always been my dream to live in a home with airy, open rooms and lots of exposed bricks, so when this renovation project from Amy came across my desk, I was instantly smitten. Located in Atlanta, this building is about 100 years old and originally served as a trolley depot. Thankfully, Amy and her...
Seminar and Webcast: Insurance in the Construction Industry
Insurance in the Construction Industry
When: October 5, 2011 (8:30 a.m. to 4:45 p.m.)
Where: Seattle, Washington (Grand Hyatt, 721 Pine Street), or by live webcast
Topics:
- Current Issues Affecting Builder's Risk and Course of Construction Claims
- Appellate and Construction Litigation Update
- Resolving Construction Defect Claims Prior to Suit
- What is the Proper Role of the Broker's Claims Department in the Claims Process
- Ethical Considerations in Defending and Resolving Construction Disputes Involving Insurance
- The "Made Whole" Doctrine Under Washington Construction Insurance Law
- Current Market Conditions
- Allocation Issues When Multiple Insurers are Involved
- Claims Made Insurance
- Condo Coverage Issue Update
Sponsored by: The Seminar Group
More Information and Registration: Click here.
Mike Purdy's Public Contracting Blog� 2011 by Michael E. Purdy Associates, LLChttp://PublicContracting.blogspot.com
Copyright 2011 by Michael E. Purdy Associates, LLC - http://www.mpurdy.com
Jul 29, Bathroom Space Savers
Bathroom space savers will help you organize and have more space in your bathroom
Source: http://www.diy-bathroom-remodel.com/bathroom-space-savers.html
Federal News Radio: Mergers and Acquisitions in the Federal Marketplace
On May 24, 2011, one of our Government Contracts lawyers, Marko W. Kipa, was interviewed by host Roger Waldron on Federal News Radio’s (Washington 1500AM) Off The Shelf – a weekly radio program devoted to topics of interest to the government contracting community. The interview focused on key issues facing government contractors when assessing an acquisition transaction and conducting a due diligence. Among other things, Marko discussed the risks associated with various contract types, small business contracts, the Anti-Assignment Act / Novations, the Mandatory Disclosure Rule, Organizational Conflicts of Interest, and foreign investors. In addition, Marko discussed recent regulatory changes impacting government contractors and due diligence best practices.
Click here to listen to the full interview.
Source: http://feeds.lexblog.com/~r/GovernmentContractsBlog/~3/_RPmftVReF4/
Friday, July 29, 2011
Lien Notice in the Mailbox? Prevent Yourself From Paying Twice
Earlier this week, I discussed what to do when a contractor receives a Notice of Construction Defects. A contractor has to be careful to prevent unnecessary risks that might lead the contractor into a court room. Well, today we discuss another notice that a contractor cannot ignore. If you fail to manage a lien [...]
Source: http://feedproxy.google.com/~r/BuildersCounsel/~3/DUomlEJCFXI/
in the kitchen with: jennifer martine?s bagna cauda
Originally from lower Piedmont, Bagna C�uda is usually a recipe for autumn, to be enjoyed with the harvest of grapes for wine. But because I will be on my way to the southern hemisphere as this posts, I thought this week would be perfect for photographer�Jennifer Martin�’s recipe,�in honor of everyone who is in the...
May 11, Kraus Frosted Black Glass Vessel Sink and Faucet
Kraus Frosted Black Glass Vessel Sink and Faucet Add a touch of elegance to your bathroom with a glass sink combo from Kraus. A stylish glass sink
Source: http://www.diy-bathroom-remodel.com/kraus-frosted-black-glass-vessel-sink-and-faucet.html
The GAO Holds It Possesses Jurisdiction Over Bid Protests of Civilian Agency Task and Delivery Order Awards
By Marko W. Kipa
Many believed that the Government Accountability Office’s (“GAO’s”) jurisdiction over bid protests of civilian agency task and delivery order awards valued at over $10 million expired on May 27, 2011. This belief was based on the fact that certain broadened jurisdiction over civilian agency task and delivery order protests granted by the 2008 National Defense Authorization Act (“2008 Act”) expired on that date. With the expiration of the broadened jurisdictional grant found in the 2008 Act, many thus contended that a contractor would not be able to protest a civilian agency task or delivery order award at the GAO unless the protest alleged that the order exceeded the scope, period or maximum value of the underlying contract. Protests of Department of Defense task and delivery order awards valued at over $10 million were not similarly affected because Congress extended the GAO’s exclusive, broadened jurisdiction over these protests through the 2011 National Defense Authorization Act.
The House of Representatives and the Senate introduced bills in March 2011 to level the playing field by providing the GAO with exclusive jurisdiction over civilian agency task and delivery order awards valued at over $10 million. See H.R. 899; S. 498. The Senate recently passed its version of the bill. The bill must still pass the House and be signed by the President before it becomes law. But, the GAO did not wait. Rather, based on a plain meaning of the 2008 Act, the GAO recently held that it now possesses jurisdiction over bid protests of civilian agency task and delivery order awards. See Technatomy Corp., B-405130, June 14, 2011.
The GAO provided the following rationale for its decision:
The Competition in Contracting Act (“CICA”) provided the GAO with authority to decide bid protests, including protests in connection with task and delivery order awards. See id. at p. 2. In 1994, Congress changed that jurisdiction with the passage of the Federal Acquisition Streamlining Act (“FASA”), which barred protests against individual task and delivery order awards, unless the protest alleged that the order exceeded the scope, period or maximum value of the underlying contract. See id. at pp. 2-3.
In 2008, Congress again fiddled with the jurisdiction of the GAO, in this instance, replacing the FASA provision with the 2008 Act. The 2008 Act again barred protests against individual task and delivery order awards but included exceptions to that bar where the awards were valued at over $10 million or the allegation was that the award exceeded the scope, period or maximum value of the underlying contracts. See id. at p. 3. The 2008 Act’s broadened grant of authority, however, contained a three year sunset period. See id. at pp. 3-4. Importantly, as drafted, the sunset provision of the 2008 Act applied to the entire statutory subsection, which included (a) the bid protest bar, (b) the exception for protests alleging that the order exceeded the scope, period or maximum value of the underlying contract, as well as the (c) the new broadened exception that allowed protests of orders valued at over $10 million. See id. at p. 4. The GAO concluded that since this entire subsection ceased to exist on May 27, 2011, the GAO thereafter regained jurisdiction over bid protests of civilian agency task and delivery order awards under its original CICA jurisdiction. See id. at pp. 4-5.
* * * * *
The legislative process continues to move forward. The suspense over what would happen in the interim to the protest jurisdiction over task and delivery orders issued by civilian agencies, however, has been lifted. We now know that, even as we await Congressional action, the GAO will continue to entertain jurisdiction over bid protests challenging civilian agency task and delivery order awards.
Authored By:
Marko W. Kipa
(202) 772-5302
mkipa@sheppardmullin.com
Source: http://feeds.lexblog.com/~r/GovernmentContractsBlog/~3/5A__w3Dx8Mk/
Seminar - Unraveling the Mysteries of Federal Construction Contracting
Join the Federal Construction Group of Cohen, Seglias as it presents, "Unraveling the Mysteries of Federal Construction Contracting," at two different locations.
Dates/Locations:
March 29, 2011 - Hyatt Regency Savannah, GA
March 31, 2011 - Hyatt Regency Grand Cypress Orlando, FL
Time:
8:00a.m.-1:00p.m.
Cost:
$195.00 per person and $95 for each additional person from the same company.
Attendees will learn about the following topics:
- Understanding the FAR and how a Federal construction contract works
- The RFP procurement process
- Preparing winning proposals on “best value” solicitations
- Understanding the IDIQ/MATOC process
- How to successfully team on Federal projects
- Knowing when, and whether, to file a bid protest
- Negotiating contract modifications
- Maintaining proper project documentation
- Obtaining prompt payment
- Preparing and submitting Requests for Equitable Adjustment and Claims
- Protecting your rights through the dispute resolution process
Regardless of your experience level, this seminar will help you understand these key concepts and develop strategies for both obtaining federal contracts and profiting from them.
Please click here for complete seminar details and registration form. For questions, please contact Rachel McNally at (215) 564-1700 or rmcnally@cohenseglias.com.
Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/qUy1-QHs9_0/
MAKE YOUR BED - DREAMY LUXE LINENS!
All photos in this post by Coco of COCOCOZY
Graphic patterned COCOCOZY throw, shams and boudoir pillows on an elegant white Downtown Company duvet cover in the Christian Mosso & Associates...
[[ This is a content summary only. Visit my website for full links, other content, and more! ]]
Graphic patterned COCOCOZY throw, shams and boudoir pillows on an elegant white Downtown Company duvet cover in the Christian Mosso & Associates...
[[ This is a content summary only. Visit my website for full links, other content, and more! ]]
Source: http://feedproxy.google.com/~r/cococozy/zOlp/~3/o0ON67R3uQk/make-your-bed-dreamy-luxe-linens.html
Thursday, July 28, 2011
SBA Providing Assistance to Fund Teaming Efforts
By: Edward T. DeLisle
The SBA issued a press release yesterday regarding its new "Small Business Teaming Pilot Program", which was established as part of the Small Business Jobs Act of 2010. The program will involve "training, guidance, counseling, mentoring and procurement assistance to small businesses" that are interested in teaming arrangements on federal projects. The SBA expects to issue grants to various national organizations during the 2011 fiscal year, who will then work with the SBA and other governmental agencies in an effort to educate and assist interested companies. Organizations interested in obtaining grant monies through the program must submit applications to the SBA by no later than February 25, 2011.
Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.
Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/qtB8CahCZQw/
Jul 26, How do I install grab rail in a tiled tub/shower stall?
Will you please explain how to install bathtub grab bars in a tiled tub shower stall. Steve - Thank you for submitting a Bathroom Shower How To question...
Source: http://www.diy-bathroom-remodel.com/how-do-i-install-grab-rail-in-a-tiled-tubshower-stall.html
LET THE SUNSHINE IN THE FORM OF A MIRROR!
Mecox Gardens - Metal Rod Mirror - $1200 (above)
I am not typically a fan of the ever so trendy sunburst mirrors...but this one by Made Goods (sold at Mecox Gardens) does work for me. Love it. It...
[[ This is a content summary only. Visit my website for full links, other content, and more! ]]
I am not typically a fan of the ever so trendy sunburst mirrors...but this one by Made Goods (sold at Mecox Gardens) does work for me. Love it. It...
[[ This is a content summary only. Visit my website for full links, other content, and more! ]]
Source: http://feedproxy.google.com/~r/cococozy/zOlp/~3/1PKMVlodtXs/let-sunshine-in-form-of-mirror.html
Federal Judge Upholds DOJ's Expansive Application Of FCPA
By Thaddeus McBride and Reid Whitten
On April 20, 2011, in a prosecution brought against Lindsey Manufacturing Company (“Lindsey”) and several of its officers and employees, a U.S. Federal District Court Judge ruled that the term “instrumentalities” applies to foreign state-owned enterprises under the Foreign Corrupt Practices Act (“FCPA”). Under this broad ruling, any employee or officer of a foreign state-owned enterprise would be considered a “foreign official” under the FCPA.
By way of background, the FCPA prohibits paying, promising, or authorizing the giving of anything of value to any foreign official in order to obtain or retain business or an improper benefit. Under the FCPA, the term “foreign official” is defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof . . . or any person acting in an official capacity for or on behalf of any such government or department, agency or instrumentality. . .” 15 U.S.C. § 78dd-2(h)(2)(A).
The U.S. Department of Justice (“DOJ”) has traditionally maintained an expansive interpretation of the term “instrumentality,” arguing that any state-owned, state-controlled, or state-operated company could be an “instrumentality” of a foreign government. On this basis, the DOJ has pursued FCPA prosecutions in cases where bribes were allegedly promised or paid to employees of state-owned hospitals, utilities, natural resource exploration companies, and other enterprises. Until the Lindsey case, however, the DOJ’s broad interpretation had not been the subject of a court decision.
In the Lindsey matter, DOJ alleged that Lindsey and several of its officers and employees paid bribes to two high-ranking employees of the Comisión Federal de Electricidad (“CFE”), an electric utility company wholly-owned by the Government of Mexico. See DOJ Press Release on Lindsey Indictment. The Lindsey Defendants moved to dismiss the case, arguing that CFE did not qualify as an instrumentality of the Mexican Government because the term “instrumentality” did not cover any entity beyond government agencies or departments. See Lindsey Motion to Dismiss. Accordingly, the Lindsey Defendants argued, employees of CFE could not be considered foreign officials under the FCPA.
The Lindsey Court disagreed. The Court held that “if an instrumentality must share all of its characteristics with both a department and an agency . . . the term ‘instrumentality’ would be robbed of independent meaning. Canons of statutory construction counsel against this outcome, which would turn ‘instrumentality’ into surplusage.” See Ruling on Motion to Dismiss. The Lindsey Court ruled that “a state-owned corporation having the attributes of CFE may be an ‘instrumentality’ of a foreign government within the meaning of the FCPA, and officers of such a state-owned corporation . . . may therefore be “foreign officials” within the meaning of the FCPA.”
The ruling is ultimately relatively narrow, as it applies to only one element of an FCPA violation – the “foreign official.” Nor is the ruling a surprise to any practitioner that has appeared in front of the DOJ or heard DOJ officials speak about the FCPA at conferences or in other venues. What makes the ruling notable is that, in an environment where virtually all FCPA matters settle before proceeding to trial, the DOJ now has case law on the side of its expansive interpretation of “foreign official.” U.S. companies and individuals should take note and ensure their compliance policies and procedures reflect this expansive interpretation.
Post Scripts: On May 10, 2011, the jury in the Lindsey case returned a guilty verdict on all counts on which they deliberated against all defendants: Lindsey Manufacturing, its CEO Dr. Keith Lindsey, CFO Steven K. Lee, and Angela Aguilar, the wife of Lindsey’s Mexican sales representative. The jury deliberated for one day.
Two other FCPA prosecutions, U.S. v. Carson, et. al. and U.S. v. O’Shea, in two different federal district courts, also involve defendants asserting that a state-owned company should not be covered by the term “instrumentality” under the FCPA. We are closely watching those cases and will provide updates as they develop.
Authored by:
Thaddeus McBride
202) 469-4976
tmcbride@sheppardmullin.com
and
Reid Whitten
(202) 469-4968
rwhitten@sheppardmullin.com
Source: http://feeds.lexblog.com/~r/GovernmentContractsBlog/~3/htywtCNe3LY/
Jun 18, Discount Bathroom Accessories: Leaf Diaries Bathroom Wastebasket / Tissue box Set
Leaf Diaries Bathroom Wastebasket / Tissue box Set Our beautifully designed Leaf Diaries Wastebasket and Tissue Box Set features subtle tones and mellow
Wednesday, July 27, 2011
Wait. Our garage sale tricycle is worth how much?
I recently wroteabout how we got some great deals on a garage sale and one of those was a�tricycle�for $5. While searching for instructions on how to adjust the seat, I had quite an amazing discovery. It seems that Kettler … Continue reading
Source: http://feedproxy.google.com/~r/twistermc/~3/pJhpEVuFLew/
SBA Providing Assistance to Fund Teaming Efforts
By: Edward T. DeLisle
The SBA issued a press release yesterday regarding its new "Small Business Teaming Pilot Program", which was established as part of the Small Business Jobs Act of 2010. The program will involve "training, guidance, counseling, mentoring and procurement assistance to small businesses" that are interested in teaming arrangements on federal projects. The SBA expects to issue grants to various national organizations during the 2011 fiscal year, who will then work with the SBA and other governmental agencies in an effort to educate and assist interested companies. Organizations interested in obtaining grant monies through the program must submit applications to the SBA by no later than February 25, 2011.
Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.
Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/qtB8CahCZQw/
Jun 27, Basement Bathroom plumbing above floor
Can a sink, toilet and shower be installed in a basement above the concrete floor and be joined in to the abs pipe that exists? I know that the drain
Source: http://www.diy-bathroom-remodel.com/basement-bathroom-plumbing-above-floor.html
Proposed FAR Rule: A New Regulatory Framework For Organizational Conflicts Of Interest And Unequal Access To Nonpublic Information
By Keith Szeliga and Anne Perry
On April 26, 2011, the Department of Defense (“DoD”), General Services Administration (“GSA”), and National Aeronautics and Space administration (“NASA”) published a proposed rule to amend the Federal Acquisition Regulation (“FAR”) coverage of organizational conflicts of interest (“OCIs”). See 76 Fed. Reg. 23236 (Apr. 26, 2011). In addition to transferring the regulatory coverage of OCIs from FAR Part 9, “Contractor Qualifications,” to FAR Part 3, “Improper Business Practices and Personal Conflicts of Interest,” the proposed rule departs from existing FAR coverage of OCIs, as well as longstanding Government Accountability Office (“GAO”) precedent, in several important respects. Comments on the proposed rule are due by June 27, 2011.
Organizational Conflicts of Interest
The proposed rule distinguishes between two categories of OCIs: (1) those that risk impairing the integrity of the competitive acquisition process by creating an unfair advantage in competing for a future requirement and (2) those that impact the Government’s business interest by potentially compromising the objectivity of a contractor’s judgment during performance. These categories of OCIs correspond to what GAO commonly refers to as “biased ground rules” OCIs and “impaired objectivity” OCIs, respectively. The third category of OCIs identified by GAO, “unequal access to nonpublic information,” would be removed from the OCI context, but still addressed, just separately in FAR Part 4.
Under the proposed rule, contracting officers would have broader discretion to address – and even accept the risk – of OCIs that impact the Government’s business interest as opposed to the integrity of the procurement process. With regard to the former category of OCIs, the proposed rule provides that “the contracting officer has broad discretion to select the appropriate method for addressing the conflict, including the discretion to conclude the Government can accept some or all of the performance risk.” If an OCI impacts the integrity of the procurement process, in contrast, “the contracting officer must take action to substantially reduce or eliminate the risk.” Hence, in those circumstances where the OCI creates what has traditionally been referred to as an “impaired objectivity OCI,” the contracting officer could him/herself effectively waive the OCI.
The proposed rule also arguably departs from GAO precedent in its treatment of OCIs arising from work performed by an offerors’ affiliates. GAO has traditionally treated a contractor and its affiliates as the same entity for purposes of OCI analysis. The proposed rule, however, would require the contracting officer to analyze the corporate and business relationship between the offeror and the affiliate to determine whether it is possible to mitigate the risk of an OCI arising from the affiliate’s work. Specifically, the contracting officer would be required to consider factors such as whether the offeror and affiliate are controlled by a common corporate parent, whether the overall corporate organization includes internal barriers that limit the flow of information and personnel, whether the offeror and the affiliate are separate legal entities and managed by separate boards, whether the corporate organization has instituted recurring OCI training and protections against OCIs, and whether the affiliate can influence the offeror’s performance of its contractual requirements. The proposed rule also identifies several “structural or behavioral barriers” that could be used to lessen the risk that the potentially conflicting financial interest of an affiliate will influence the contractor’s exercise of judgment during contract performance. These include binding resolutions prohibiting certain individuals or entities from participating in contract performance, the requirement for a nondisclosure agreement between the contractor and its affiliate, the utilization of independent directors that have no prior relationship with the contractor, and the creation of a corporate OCI compliance official to oversee implementation of the mitigation plan. Properly managed by the contractor and evaluated by the government, this could reduce the risk of OCI created by affiliates.
The proposed rule also includes a new solicitation provision and three new contract clauses intended to increase uniformity in the treatment of OCIs:
- FAR 52.203-XX, “Notice of Potential Organizational Conflict of Interest,” would require an offeror to disclose all relevant information regarding any OCI, to represent that it has disclosed all such information, and to explain the actions it intends to use to address any OCI.
- FAR 52.203-ZZ, “Disclosure of Organizational Conflict of Interest After Contract Award,” would require a contractor to make a prompt and full disclosure of any new or newly discovered OCIs.
- FAR 52.203-YY, “Mitigation of Organizational Conflicts of Interest,” would incorporate an offeror’s mitigation plan into the contract and also address changes to, and noncompliance with, the plan.
- FAR 52.203-YZ, “Limitation of Future Contracting,” would be used when the contracting officer determines to avoid a potential OCI through a limitation on future contracting.
The contracting officer would have discretion both in determining whether to include one or more of these clauses in a solicitation and in tailoring the clauses as appropriate. While the requirements of these clauses is likely not new to contractors, as similar requirements have been imposed by special contract clauses used by many agencies, the generalized coverage and reach of the FAR would likely expand their applicability to a far broader range of contracts and, thus, impose a heavier burden on companies to monitor potential OCIs over this increased contract pool.
Access to Nonpublic Information
The proposed rule includes a new FAR Subpart 4.4, entitled “safeguarding information within industry,” that is intended to preclude contractor use or disclosure of nonpublic information for any purpose unrelated to contract performance and to ensure that contractors do not obtain any unfair competitive advantage by virtue of access to such information.
FAR Subpart 4.4 would create a new framework for addressing the potential competitive harm resulting from unequal access to nonpublic information. Under the new approach, the contracting officer would be required to consider whether access to the nonpublic information was provided either directly or indirectly by the Government or by a third party. If the information was provided by a third party, the contracting officer would not be required to take – but apparently would not be prohibited from taking – steps to mitigate the potential unfair competitive advantage. If, on the other hand, access to the information was provided either directly or indirectly by the Government, the contracting officer would be required to consider whether the nonpublic information is available to all potential offerors and whether access to the nonpublic information would be competitively useful. If the Government-provided information is competitively useful, and was not available to all offerors, the contracting officer would be required to mitigate the resulting unfair competitive advantage. The potential mitigation strategies identified in the proposed rule include disseminating the information to all offerors (if the nonpublic information is Government information), the use of a firewall (where only some offeror personnel have had access to the information), and disqualification from the procurement (where the contracting officer determines that neither of the foregoing strategies would be effective). The last of these mitigation techniques is particularly harsh and has not generally been required since firewalls and nondisclosure agreements should adequately resolve the unfair competitive advantage. Hence, we hope that disqualification would, as it should, remain a technique of last resort that is rarely imposed.
The proposed rule also includes four new solicitation provisions and contract clauses relating to nonpublic information. Two of these clauses are particularly interesting. FAR 52.204-XX, “Access to Nonpublic Information” would prohibit contractors from using nonpublic information for any purpose other than contract performance, require contractors to obtain nondisclosure agreements from personnel with access to such information, mandate reporting of any violations of the clause, and require the contractor to indemnify the Government for any misuse or disclosure of such information. Most sophisticated contractors already obtain and maintain nondisclosure agreements, but the requirement to report violations to the Government would likely impose a material additional burden on contractors. FAR 52.204-YZ, “Unequal Access to Information” would require an offeror to disclose whether it or its affiliates have obtained access to relevant nonpublic information from the Government, to represent that it has implemented any required firewall, and to report any breaches thereof. Again, while many contractors are familiar with such reporting requirements in proposals, the fact that the FAR would now standardize the requirement will likely require many contractors to institutionalize further their monitoring and data collection efforts in this regard.
Conclusion
The proposed rule is a mixed bag for contractors. On the one hand, the new contract clauses addressing unequal access to nonpublic information would impose additional compliance burdens and create additional risk. On the other hand, most contractors would benefit from the proposed rule’s more flexible treatment of OCIs, particularly with regard to the contracting officer’s discretion to accept the risk of OCIs that impact only the Government’s business interests and the requirement for a contracting officer to consider the totality of the circumstances prior to disqualifying a contractor based on OCIs arising from work performed by an affiliate. Moreover, to the extent that most agencies adopt the ultimate FAR provisions and jettison their own unique OCI clauses and requirements, this could reduce the burden on contractors who have had to institute multiple policies and procedures to comply with the currently varied requirements.
Authored By:
Keith R. Szeliga
(202)218-0003
kszeliga@sheppardmullin.com
and
Anne Perry
(202) 218-6875
aperry@sheppardmullin.com
Source: http://feeds.lexblog.com/~r/GovernmentContractsBlog/~3/ozX5JC7x0ww/
Jul 8, Steam Shower Units: Steam Shower Jacuzzi Combo
Steam Shower Jacuzzi Combo This is an absolutely awesome steam shower unit. It is the most elaborate of the steam shower units we have reviewed. It
Source: http://www.diy-bathroom-remodel.com/steam-shower-units-steam-shower-jacuzzi-combo.html
Ohio State Pioneering A Move From Bonding Public Construction
There is more turmoil at Ohio State University (OSU) – this time its not about football. Nope, this time we are talking public contracting. By reducing their dependence on public financing, OSU has curtailed the impact of state regulations. So, what is the fallout? Who gets hurt the most? Yesterday, Chris Cheatham published [...]
Source: http://feedproxy.google.com/~r/BuildersCounsel/~3/SsoRpFZVViw/
Tuesday, July 26, 2011
Making A Construction Claim? Be Prepared Before The Project Begins
Contractors are faced with managing a number of risks. In order to prepare yourself for inevitable debates over scope and payment, construction attorneys urge documentation, daily reporting, and other tools. But preparing to make a claim is a hefty task that should be well-thought out before taking action. Is your construction company prepared? [...]
Source: http://feedproxy.google.com/~r/BuildersCounsel/~3/0fj_sPkz7no/
THIS OR THAT: THE ART OF ARRANGING ART!
Total design non sequitur but I must share...
So was out to dinner at Eveleigh on Sunset last night...it is the latest "in" restaurant in Los Angeles. It has a covered outdoor patio with a huge skylight and for some reason my seat was conveniently placed right under a huge ominous billboard of Paris Hilton (see COCOCOZY Twitter to see what my view was all night!).
Anyhooo...was with a fun group of girlfriends at this Eveleigh establishment; two of whom are visiting from San Francisco. We were seated at a communal table at the center of the restaurant. We ordered few little starters (including a to-die-for quinoa salad) and then we ordered some main courses to share. When our main dishes arrived, there were no side dishes...only protein on the plates (no veggies no starch...just a small entire sea bass (bones and all), a plate with 4 huge shrimp on it. and a tiny little steak...there were five of us). We asked the waiter if he had any side dishes for us to chose from (namely carbs) and he looked at us as if we were bonkers...he said "Well we had one pasta dish but we don't have that anymore, a few months ago we used to have macaroni and cheese on the menu but the chef took that off, oh yes we do have some roasted potatoes maybe...maybe...would that work?" Then he went onto add as he looked at us like we were aliens, "Sorry, we don't have any carbohydrate type food really because no one here in L.A. really orders that kind of stuff". Well I'm in L.A....I order that "kind of stuff". (Btw, after much prodding and begging...we managed to get him to find some french fries somewhere in the back not necessarily on their seemingly carb free menu!). Everyone at the table in our group was relatively small (ranging from a size 0 (and she is a mom) to maybe a size 4 (or max 6))...no one was obese...but the waiter certainly made us feel like food criminals for even asking - the look on his face was one of total confusion ("what is a carb?") and horror (with a little disgust and disappointment thrown in)... Oh life in Los Angeles. Totally surreal.
Anyhoooo...onto design...
I love collections of art. A mix or grouping of paintings, photographs and/or prints. Love the visual interest that the arrangement alone can add to the space not to mention the art itself.
Here are two rooms...with collections of art...very different in feel. The first room is white and clean and the art (a series of four photos or paintings of palm trees against a blue sky) is symmetrically arranged in a row above the fireplace. I love this room and the look. Then there is the living room below where the collection of art covers the wall and comes in a variety of shapes and sizes and formats...it creates an eclectic warm artsy vibe in the space.
So in today's THIS OR THAT I ask you which one do you like better...this one or that one?
Okay, if you read COCOCOZY regularly, you can probably guess which room I gravitate towards (the first one)....but please please please I want to hear what you like best and why! Do weigh in please.
Happy Friday!
xo
Coco
Photo: Coastal Living; Kristen Buckingham Interiors
Source: http://feedproxy.google.com/~r/cococozy/zOlp/~3/wqwinvQBU4w/this-or-that-art-of-arranging-art.html
Job Opening: Contracts Specialist 3 (WA)
Washington State Department of Social and Health Services (Olympia, WA)
- Position: Contracts Specialist 3
- Location: Olympia, Washington
- Closing Date: Monday, July 4, 2011
- Salary: $4,114 to $5,395 per month
- Job Summary: This position is responsible for ensuring statewide agency compliance with laws, rules, and policies related to the acquisition of purchased goods and services. This position is governed by RCW 43.19, RCW 43.105, OFM SAAM Chapters 12, 20, 30 and 35 and other relevant state laws, policies and procedures.
- For More Information and To Apply: Click here.
Mike Purdy's Public Contracting Blog� 2011 by Michael E. Purdy Associates, LLChttp://PublicContracting.blogspot.com
Copyright 2011 by Michael E. Purdy Associates, LLC - http://www.mpurdy.com
Federal News Radio: Mergers and Acquisitions in the Federal Marketplace
On May 24, 2011, one of our Government Contracts lawyers, Marko W. Kipa, was interviewed by host Roger Waldron on Federal News Radio’s (Washington 1500AM) Off The Shelf – a weekly radio program devoted to topics of interest to the government contracting community. The interview focused on key issues facing government contractors when assessing an acquisition transaction and conducting a due diligence. Among other things, Marko discussed the risks associated with various contract types, small business contracts, the Anti-Assignment Act / Novations, the Mandatory Disclosure Rule, Organizational Conflicts of Interest, and foreign investors. In addition, Marko discussed recent regulatory changes impacting government contractors and due diligence best practices.
Click here to listen to the full interview.
Source: http://feeds.lexblog.com/~r/GovernmentContractsBlog/~3/_RPmftVReF4/
May 11, Madeli Andria Square Tempered Glass Vessel Sink
Madeli Andria Square Tempered Glass Vessel Sink This unique design is a square shaped bowl...giving your bathroom a real unique look all its own.
Source: http://www.diy-bathroom-remodel.com/madeli-andria-square-tempered-glass-vessel-sink.html
Should a Federal Construction Contractor File a Bid Protest?
By: Michael H. Payne
To protest or not to protest, that is the question. That may sound a little like William Shakespeare, but it actually is a question frequently posed by federal contractors. Particularly in the world of “best value” contracting, where subjective evaluation factors are applied to make source selections, contractors often feel that award decisions are unfair. A bid protest offers the possibility of relief in the form of corrective action by the agency, or in the form of a favorable protest decision by the agency, the GAO, or the United States Court of Federal Claims. Successful protests, however, require knowledge of procedural rules, an understanding of applicable procurement regulations, and knowledge of the extensive body of GAO and federal court decisions.
Put simply, it is a waste of time and money to file a protest that is untimely or that does not lay out the basis for the protest properly. Similarly, it is very important to know whether a procurement regulation addresses the subject of a protest, or whether there have been prior GAO or court decisions that help, or hurt, the contractor’s case. If a prior decision dealing with similar facts and issues agrees with the contractor’s position, it may be possible to convince the agency to take corrective action by simply providing the Contracting Officer with a copy of the decision. On the other hand, if a prior decision has ruled against the contractor, it may not be advisable to proceed with the protest unless you have found a way to distinguish your facts from those in the unfavorable case.
A federal contractor has the option of filing a protest with an agency, the GAO, or the U.S. Court of Federal Claims (See FAR 33.1). While agency and GAO protests can be filed by letter, the letter must explain the basis for the protest in detail with citations to regulations and case law. This is particularly important when filing a GAO protest because the GAO will summarily dismiss a protest that does not provide a sufficient basis in fact and law. (See FAR 33.104 and 4 CFR Part 21 for the rules that govern GAO protests). When filing an agency protest, consideration must be given to the fact that you are essentially appealing to the same person, the Contracting Officer, who took the action that gave rise to the protest. Although there are exceptions, you may not receive an objective review if you file an agency protest. (See FAR 33.103 for the rules that govern agency protests). Generally speaking, both agency and GAO protests must be filed within 10 calendar days of the date when the contractor knew, or should have known, of the basis for the protest. If the protest involves a challenge to the solicitation itself, the protest must generally be submitted before the date for receipt of bids or proposals. (Note: In a protest of a negotiated procurement, the GAO requires that the protester must participate in a debriefing as a prerequisite to the filing of the protest. Accordingly, the protester has 10 days from the date of the debriefing, but the protest must be filed within 5 days if the protester wants to prevent the performance of the project while the protest is pending).
In the case of a Court of Federal Claims protest, there is no specific time limit, and a debriefing is not a prerequisite. It is more complicated, and expensive, to file a federal court protest, however, because a complaint, a memorandum of law, and a number of related documents required by the court’s rules must be prepared. Unlike an agency, or GAO protest, a Court of Federal Claims protest will generally be decided after each side files briefs in support of cross-motions for “Judgment Upon the Administrative Record.” The briefing is followed by an oral argument before the judge assigned to the case. In my experience, this procedure is more open and fair, and frequently holds out the highest probability of success. In view of the expense involved, however, a Court of Federal Claims protest (or any other type for that matter) should not be undertaken without first receiving legal advice about the prospects for success.
As an attorney who has been advising contractors on protest matters for over thirty years, I find the procedure involving protests on negotiated procurements to be particularly frustrating. Unlike sealed bidding, where everything is out in the open, negotiated procurements are shrouded in secrecy. Proposals are closely guarded and only the award price is generally disclosed. While an unsuccessful offeror may learn a little bit about why he was not selected during a debriefing, the sad reality is that it is often impossible to know whether there is a sound basis for a protest without first filing a protest. The reason for this is that until the agency’s internal documents in support of the source selection are reviewed, it is virtually impossible to tell whether the source selection was justified. I find this frustrating because I am often forced to tell my client that I cannot offer an opinion on the probability of success until after the protest is filed and the agency’s documents are reviewed. There are other times, of course, when the prospects for success, or failure, are known at the outset and the decision to proceed with a protest is much easier to make.
To add to the frustration, an attorney is not permitted to share the agency’s documents, or to reveal “protected” information to the client. It is routine, in the case of GAO and Court of Federal Claims protests, for the agency’s documents to be provided only after a Protective Order has been agreed to by the attorney and approved by the GAO or the Court. What that means is that only the protester’s attorney is permitted to review the agency’s documents. It is imperative, therefore, that a contractor be represented by an attorney who understands procurement law and who can be relied upon to make sound judgments based upon what is revealed in the agency’s documents. In my practice, I have frequently advised a client to withdraw a protest after I have reviewed the agency’s documents. This saves time and money, and prevents an unfavorable decision. If the documentation supports the protest, however, we can then forge ahead with the knowledge that a well-supported argument will be presented.
It is not uncommon for contractors to fear retribution by the agency if they file a protest. I have not found that to be the case in my experience, although I certainly would advise against filing a protest that makes a personal attack or that is frivolous. Given the tough economic and highly competitive time in which we live, government agencies have become accustomed to bid protests and they do not harbor any ill will. In the last analysis, protests keep government officials on their toes and help to assure that contracts are awarded fairly.
Michael H. Payne is the Chairman of the firm's Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on bid protest matters.
Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/ljm59uqcyQ0/
Monday, July 25, 2011
3 Positions Open on Washington's Project Review Committee
Washington State's Capital Advisory Review Board (CPARB) is seeking letters of interest from individuals knowledgeable in the use of alternative public works contracting procedures, to serve three year terms on its Project Review Committee.
Representatives needed in 2011 are from the following groups:
- 1 Owner - Counties
- 1 Owner - Cities
- 1 General Public Owner
Letters of interest are due by 12:00 p.m. on August 1, 2011. For more information click here.
Mike Purdy's Public Contracting Blog� 2011 by Michael E. Purdy Associates, LLChttp://PublicContracting.blogspot.com
Copyright 2011 by Michael E. Purdy Associates, LLC - http://www.mpurdy.com
OFCCP's Proposed Equal Employment Opportunity Rules: More On-Site Investigations, More Data Collected From Contractors, Closer Scrutiny of Contractor Affirmative Action
By W. Bruce Shirk and Nick Schnermann
The Office of Federal Contract Compliance Programs (“OFCCP”) recently proposed two rules that would, among other things, enhance the agency's investigative and enforcement capabilities and substantially increase the amount of EEO-related data it will collect from contractors. These proposals should come as no surprise – OFCCP's publicly available budget submissions to Congress for FYs 2011 and 2012 set out detailed explanations of the agency's long-term enforcement strategy.
The first proposed rule, published under the heading “Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans,” would create significant new contractor obligations with respect to data collection and implementation of affirmative action plans under the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”). 76 Fed. Reg. 23,358 (proposed Apr. 26, 2011). The second proposed rule, which appears under the misleadingly innocuous heading “Proposed Extension of the Approval of Information Collection Requirements Comment Request,” would require prime contractors and subcontractors to collect and provide much more—and much more specific—information regarding implementation of their affirmative action plans for EEO than is presently the case. 76 Fed. Reg. 27,670 (proposed May 12, 2011).
Congress has given the OFCCP more enforcement “muscle,” increasing its budget from $82.44M in FY 2007 to $105.38M in FY 2010. The agency anticipates funding of $109M in FYs 2011 and 2012, and an increase in FTEs from 625 in 2007 to some 786 by the end of FY 2011. U.S. Commission on Civil Rights, Funding Federal Civil Rights Enforcement: 2000 and Beyond (2001); OFCCP, FY 2011 Congressional Budget Justification (“FY 2011 Justification"), at 3; OFCCP, FY 2012 Congressional Budget Justification ("FY 2012 Justification"), at 6.
“Building on the gains reflected in the FY 2010 and FY 2011 budgets,” the agency is committed to forcing “an overall improvement in the compliance rate of federal contractors and a reduction in [their] discrimination rate.” To that end, OFCCP's new leadership is making a number of expenditures intended to enhance its ability to investigate contractors and subcontractors and to collect, maintain and analyze contractor and subcontractor data, including:
- Hiring over 200 compliance officers to “build the agency’s capacity to conduct more comprehensive compliance evaluations and increase enforcement efforts.”
- Acquiring a new IT system designed to enable federal contractors and subcontractors to provide the agency employment data, including EEO, hiring, promotion and compensation information, “in a much more timely and efficient manner” and aimed, ultimately, at automation of the Affirmative Action Plan process.
- Developing a Compensation Data Collection Tool to assist the agency in identifying compensation discrimination.
FY 2012 Justification at 13, 18, 22; FY 2011 Justification at 22.
Once in place, these functional capabilities are intended to enable the agency to implement the policy and operational changes planned by the new agency leadership, including:
- Replacement of the Bush-Cheney era Active Case Management process, which, it is asserted, for a decade restricted the agency’s enforcement activities to investigation of “systematic hiring discrimination,” with an approach that instead entails full reviews of “all discriminatory practices, not just systemic cases, and enforcement of affirmative action plans . . . .” FY 2011 Justification at 15-16.
- Replacement of the Bush-era enforcement strategy that “prioritized” enforcement of equal employment rules under Executive Order 11246, asserted to have caused a significant decline of enforcement activities under VEVRAA, Section 503 of the Rehabilitation Act of 1973, as amended (38 U.S.C. §4212), and the Americans with Disabilities Act, as amended ("ADA") (42 U.S.C. §12101 et seq.), with a broadened enforcement effort intended both to maintain the agency's focus on equal employment and to enhance employment opportunities for veterans and the disabled. FY 2011 Justification at 16, 22; FY 2012 Justification at 20. The likely increase in OFCCP investigations was previously discussed on the blog here.
- Conduct more on-site reviews to ensure “that more contractors abide by technical requirements, including maintaining appropriate and accurate records.”
- Expanded use of existing agency authority to investigate subcontractors, authority provided by the mandatory flow-down provisions from prime contractors to subcontractors pursuant to the Federal Acquisition Regulation, for compliance with Executive Order 11246, VEVRAA, the Rehabilitation Act and the ADA.
- Use of litigation to force entities who deny their subcontractor status to comply with Equal Employment and affirmative action requirements of the above Executive Order and statutes. The Department of Labor’s attempts to extend the “Christian Doctrine” to subcontractors was previously discussed on the blog here.
Finally, the OFCCP has recently identified two issues as to which the agency believes its prior enforcement efforts have fallen short and which will be the subject of the its aggressive attention going forward, as follows:
- The pay gap between men and women which, according to the agency, persists to the extent that there is currently a 23% pay disparity between men and women, with an even greater disparity between African-American and Hispanic women and men. FY 2012 Justification at 20.
- Misclassification of employees as independent contractors who, as a result, "do not receive the protections and benefits to which they are entitled" and who may be misclassified to mask discriminatory employment practices. FY 2012 Justification at 20; U.S. Gov’t Accountability Office, GAO-09-717, Employee Misclassification: Improved Coordination, Outreach, and Targeting Could Better Ensure Detection and Prevention (2009).
These proposed rules are at the first stage of the rule-making process and subject to comment and revision. However, given the agency's announced commitment to the strategies underlying these rules, the proposals may well not undergo significant substantive change before becoming final. Contractors should therefore review the proposed rules with care to ascertain how their operations may be impacted if the rules become final and whether they may wish to submit comments. In this regard, there are certain aspects of the proposed rules which are, we think, highly likely to become final, because their implementation is asserted to be critical either to the achievement of key administration goals, e.g., elimination of misclassification and gender discrimination, or because they are viewed as critical to OFCCP's successful implementation of its overall strategy. That said, contractors may wish to prepare for these probable changes in the following ways:
- Review their records to determine the level of "technical compliance," e.g., the accuracy and completeness of their records.
- Review their affirmative action plans to determine whether those plans are adequate and are in fact being implemented.
- Assess changes which may be necessary to their IT systems to comply with OFCCP's likely new data submission requirements.
- Determine whether their worker classification methodology has resulted in misclassification of employees as independent contractors.
- Assess their compensation system to determine the extent to which, if any, it appears to discriminate on the basis of gender.
The comment deadlines for the proposed rules are, respectively, June 27 and July 11, 2011.
Authored By:
W. Bruce Shirk
(202) 741-8426
bshirk@sheppardmullin.com
and
Nick Schnermann
(202) 469-4946
nschnermann@sheppardmullin.com
Source: http://feeds.lexblog.com/~r/GovernmentContractsBlog/~3/h__iFba-mbY/
Jun 18, Discount Bathroom Accessories: Coastal Cottage Bath Accessory Set
Coastal Cottage Bath Accessory Set The Coastal Cottage bath accessories set was inspired by life on the shores of the Atlantic Ocean. Sailboats,
Big Changes to Washington?s Workers Compensation ? In a Nutshell
The State of Washington just released an easy to read press release on “historic” changes to its workers compensation system. We outlined the legislation that passed back in June 2011, here on the blog. But the Department of Labor & Industries appears to have finally wrapped their head around the regulations. L&I released [...]
Source: http://feedproxy.google.com/~r/BuildersCounsel/~3/95OuwH79y48/
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