Georgia Tech Procurement Assistance Center

General contractor can be cited for subcontractor safety violations

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A U.S. Appeals Court judge for the 5th Circuit in New Orleans has ruled that OSHA can cite general contractors — even if their employees are not affected — for subcontractor safety violations.

The ruling came after Labor Secretary Alexander Acosta requested that the 5th Circuit review an OSHA administrative court decision that said a general contractor could only be cited for safety threats to its own employees.

In 2017, a Denver Occupational Safety and Health (OSH) Commission administrative judge ruled that Hensel Phelps could not be cited by the agency for safety hazards created by one of its subcontractors on a project in Austin, Texas. However, the 5th Circuit said more recent rulings have rendered the case law on which the administrative judge based his decision “obsolete” and said that Hensel Phelps could be held responsible for safety on the multi-employer site as a “controlling employer.”

According to court documents, Hensel Phelps hired subcontractor Haynes-Eaglin-Waters (HEW) for a library construction project, and HEW, in turn, hired CVI Development as a sub-subcontractor to perform demolition, excavation and other work. Hensel Phelps and HEW project staff allegedly directed CVI to work in an unsafe excavation area. An OSHA inspector cited both Hensel Phelps and CVI for safety violations. The OSH Commission will now review the matter again, taking the 5th Circuit’s decision into consideration.

Keep reading this article at: https://www.constructiondive.com/news/court-general-contractor-can-be-cited-for-subcontractor-violations/544678/

 

Slight decrease in FY17 suspensions and debarments, but contractors should take note of the continued high level of activity

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On July 31, 2018, the Interagency Suspension and Debarment Committee delivered its annual report to Congress on the status of the suspension and debarment system. The report shows a continued high level of activity relative to the last decade and serves as a reminder that exclusion from the federal marketplace continues to be a risk for contractors that do not “cut square corners” with the government.

The FY2017 report shows a modest decrease in the number of suspensions, proposed debarments, and debarments from the last fiscal year, a trend that has continued since the high-water mark set in FY2014.

But it also notes that the number of exclusions in FY17, over 3,000, are almost double those reported when the Committee first began formally tracking the data in FY09, approximately 1,800.

The decline in the total number of suspensions, debarments, and proposed debarments should not be viewed as an indication that suspension and debarment officials (SDOs) across the government are not vigilant or that they are not taking appropriate action when unethical individuals or contractors pose a threat to the public interest. Rather, it is likely that growing proactive engagement by contractors with SDOs even in the absence of lapses has decreased the need to suspend or debar contractors when problems do occur by ensuring that SDOs understand those companies’ commitment to ethics and compliance and that appropriate remedial actions are taken promptly where there is cause to question whether a company should be permitted to continue contracting with the government.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=742270

Security assessments soon may be part of DoD government contracts acquisition process

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Identifying threats and improving network and supply chain security has been an ongoing effort by Congress and the Department of Defense (DoD) for the past several years.

Congress has included multiple provisions in the annual National Defense Authorization Acts to spur action by the DoD to address weaknesses in contractor supply chains for electronic parts and vulnerabilities to cyber threats in contractor information technology systems. In turn, the DoD has amended the Defense Federal Acquisition Regulation Supplement (DFARS) to impose new performance requirements on contractors and subcontractors in DoD procurement contracts. This cascading effort of turning policy into contract performance has been steady but slow and of questionable efficacy.

A new initiative under consideration by the DoD could change that. In June testimony to Congress, the DoD said it has started a new initiative known as “Deliver Uncompromised” to “elevate the private sector’s focus on security.” The DoD’s goal is to establish security as a “fourth pillar” in acquisition, “on par with cost, schedule and performance.” The hope is to create incentives for industry to “embrace security, not as a ‘cost center,’ but as a key differentiator” in competitions for procurement contracts.

In August 2018, the nonprofit group Mitre Corporation (Mitre) released a report called “Deliver Uncompromised,” which describes how the DoD and the intelligence community face daily strategic attacks from foreign adversaries in the supply chain domain (e.g., software, hardware, and services) and cyber domain (e.g., informational technology and cyber-physical such as weapons systems). Mitre’s report calls for a unified focus of resources from both the DoD and government contractors to prioritize risk mitigation through enhanced infrastructure and better coordination.

While the DoD cannot require private companies to invest in specific security measures, the Mitre report recommends that the DoD use its purchasing power and regulatory authority to influence and shape the conduct of the DoD suppliers. For example, the DoD may begin defining procurement requirements with new security measures, or rewarding contractor proposals with superior security measures by elevating security as a primary metric for evaluation during the source selection process. The DoD could also include terms and conditions in its contracts that impose security requirements, and then use those contractual terms post-award to monitor contractor compliance.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=737662

GTPAC has created a video and a template to help businesses comply with DoD’s cybersecurity requirements.  These resources appear at: http://gtpac.org/cybersecurity-training-video/

Something old, something new: Contractor recognition and AAP verification on the horizon at OFCCP

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On August 24, 2018, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued three new directives, 2018-05, 2018-06, and 2018-07.   While directive 2018-05 has received most of the attention because it focuses on reviewing a contractor’s compensation practices during a compliance evaluation, directives 2018-06 and 2018-07 should not go unnoticed.

During OFCCP Town Hall Meetings earlier this year, contractors suggested a return to recognition programs such as the Exemplary Voluntary Efforts (EVE) Award or the Secretary of Labor’s Opportunity Award. Both programs were instituted in the late 1980s to recognize federal contractors for exemplary efforts in advancing fair employment practices and programs. Both programs were ultimately rescinded in 2013.

Recognizing that awards and recognition programs may incentivize contractor compliance, the OFCCP issued directive 2018-06 titled, “Contractor Recognition Program.”  While short on details, the directive describes several tools and resources under development:

  • A contractor recognition program that highlights implementable best or model contractor practices;
  • A contractor mentoring program that uses contractors to help their peers improve compliance; and
  • Other initiatives that provide opportunities for contractors to collaborate or provide feedback to OFCCP on its compliance assistance efforts.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=732786

OFCCP launches new resource for contractors

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The Office of Federal Contract Compliance Programs (“OFCCP”) has announced that it has launched a new resource for federal government contractors called the “Contracting Officer Corner.”

OFCCP touts the new website as constituting “a central repository of resources, including a new pre-award process guide and downloadable workplace posters, for both federal agency contracting officials and federal contractors.”

The aim of the website is to “assist and ensur[e] that federal contractors meet their equal employment opportunity obligations,” and to “enhance compliance assistance.”

Keep reading this article at: https://www.natlawreview.com/article/ofccp-launches-new-resource-contractors

Orlando contractor to pay $575,000 after DOL investigation uncovers improper pay deductions

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Loyal Source Government Services LLC – a medical and support staff contactor based in Orlando, Florida – will pay $574,989 to 4,047 employees after a U.S. Department of Labor Wage and Hour Division (WHD) investigation determined the company violated the McNamara-O’Hara Service Contract Act (SCA).

WHD investigators found Loyal Source Government Services LLC unlawfully deducted $10 per paycheck from each employee for the administration of employee health and welfare benefits.

“This investigation demonstrates the Department of Labor will enforce all applicable laws to ensure that employees receive legally required pay and benefits,” said Wage and Hour Division District Director Daniel White, in Jacksonville. “The Department’s Wage and Hour Division encourages all employers to make use of the many tools we provide to help them understand and comply with the law, and to call us for assistance.”

For more information about the SCA and other laws enforced by the Division, contact its toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at http://www.dol.gov/whd/ including a search tool to use in the event a worker suspects he/she may be owed back wages.

Source: https://www.dol.gov/newsroom/releases/whd/whd20180907

OFCCP promises clear guidance and consistency, laying out a program of carrots and sticks

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In his first two speeches after taking over as Acting Director of the Office of Federal Contract Compliance Programs (OFCCP), Craig Leen emphasized a commitment to the rule of law, promised to provide contractors with clear guidance and transparent enforcement processes, offered incentives for voluntary compliance, and outlined plans to identify and audit government contractors that are ignoring their obligations.

His speeches came at the beginning and end of a four-day Industry Liaison Group National Conference held in Anaheim, California that was attended by HR compliance professionals and officials from the Department of Labor (DOL), OFCCP, and Equal Employment Opportunity Commission (EEOC). Although the conference included presentations from industry experts, the highlight for many was the opportunity to hear directly from the OFCCP, including its new acting director.

Mr. Leen opened the conference with a keynote address focusing on his goals for the OFCCP, including transparency, certainty, efficiency, and recognition. Mr. Leen highlighted OFCCP’s recent Directive 2018-01, which requires a Predetermination Notice (PDN) in all cases with preliminary individual and systemic discrimination findings. According to Mr. Leen, contractors can expect meaningful, good-faith conciliation.

Additionally, he noted that the OFCCP will no longer engage in fishing expeditions with information requests during a compliance evaluation. Instead, OFCCP compliance officers must have specific reasons for a request and be able to explain the need for the information upon request.

Importantly, in the information request context, Mr. Leen explicitly acknowledged that contractors will be given reasonable time to respond and that the age of “false deadlines” to show authority was over.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=727378

Draft DoD guidance reveals how cyber readiness will impact contract evaluations

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Editor’s Note: This post was created by Jon Williams who is a partner with PilieroMazza and a member of the firm’s Government Contracts Group. 

We have been blogging and giving webinars since last year about the DoD requirements around cybersecurity for contractors that are subject to DFARS 252.204-7012. Please view our past blogs and webinars here and here to get more of the backstory.

In a nutshell, DoD contractors operating nonfederal IT systems and subject to DFARS 252.204-7012 were required to have a system security plan (“SSP”) in place by December 31, 2017, to demonstrate compliance with the recommended security controls in NIST SP 800-171. Although the DFARS requirements were black-and-white, there was a fair amount of uncertainty late last year and continuing into this year about what contractors needed to do to comply and if/how DoD would enforce the requirements.

DoD has taken some of the mystery out of these cyber requirements in a recently-released draft guidance.

Keep reading this blog post at: http://www.pilieromazza.com/the-protests-are-coming-draft-dod-guidance-reveals-how-cyber-readiness-will-impact-contract-evaluations

See GTPAC’s instructional video on achieving compliance with DFARS 252.204-7012 and NIST guidance at: http://gtpac.org/cybersecurity-training-video/

Mergers and acquisitions: Contractors advised to slow down and ensure compliance

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The pace at which government contractors are engaging in mergers & acquisitions has increased notably in recent years, as a stream of recent stories in the Washington Post and New York Times have reported.

The acquisition of a government contractor frequently provides the buyer an opportunity to increase its market share and/or strengthen its capabilities in an existing industry. The acquisition may also allow the buyer to develop and market a new government contracting capability that was previously lacking from its portfolio.

In the past few months alone, several multi-billion-dollar acquisitions within the government contracts sector have been announced. For example, in September 2017, Northrup Grumman announced it would acquire Orbital ATK, a rocket and defense contractor. Orbital will bring new capabilities to Northrup’s portfolio, including a missile defense business line and the ability to launch rockets that carry satellites into space. The deal, worth $7.8 billion, will also allow Northrup to bolster its existing satellite capabilities.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=635270

4 ways to avoid suspension or debarment on federal contracts

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The U.S. government appropriated $120 billion for federal construction spending in 2017, covering a range of projects from the construction of a new Federal Bureau of Investigation headquarters to building agricultural research facilities, according to the Associated General Contractors of America. President Donald Trump’s 2018 budget proposal, even with its cuts to key federal spending programs and new funds for a U.S.–Mexico border wall, calls for roughly the same level of investment.

Because of the potential for a big payoff, some companies have elected to become experts in the federal contracting field, making it the focal point of their business plans. Other contractors, like international design, engineering and construction firm AECOM, have set up specialized business units to take advantage of government contracting opportunities.

Keep reading this article at: http://www.constructiondive.com/news/the-dotted-line-4-ways-to-avoid-suspension-or-debarment-on-federal-contrac/448789/

 

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