Georgia Tech Procurement Assistance Center

Government may disqualify contractors who use standard confidentiality language with employees and subcontractors

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Under a new FAR rule, standard language in confidentiality agreements could lead to disqualification from contracting or False Claims Act liability.

In January, the FAR Council issued a final rule regulating confidentiality agreements between prime contractors and their employees and subcontractors. The rule implements Section 743 of the Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. 113-235 (Dec. 6, 2014).  As we previously reported, a proposed rule was issued in January of 2016 and a class deviation was issued by the Department of Defense late last year.  The final rule largely adopts the proposed rule’s language and applies to all solicitations and resultant contracts that are funded with fiscal year (FY) 2015 funds.  Contractor Employee Internal Confidentiality Agreements or Statements, 82 Fed. Reg. 4717 (Jan. 13, 2017).

In summary, the new FAR 52.203-19 bars contractors from requiring their employees or subcontractors to sign or comply with “internal confidentiality agreements or statements” that would prohibit them from reporting “waste, fraud, or abuse” on a federal contract.  FAR 52.203-19(b).  Contractors who disregard this rule are prohibited from receiving federal funds.  FAR 3.909-1(a).

Because of the broad reach and significant consequences of non-compliance, the contracting community should take notice of this new rule’s requirements.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2017/04/new-far-rule-government-may-disqualify-contractors-use-standard-confidentiality-language-employees-subcontractors/

Government releases final rule implementing ‘blacklisting’ law

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The final rule and guidance implementing the Fair Pay and Safe Workplaces Executive Order, signed by President Barack Obama in July 2014 and finally published on August 25, 2016, remain almost as burdensome and problematic as they were when originally proposed. They will impact many federal contractors and require immediate attention to ensure full compliance, which for some will be required as soon as October 2016.

President Barack Obama signs the "Fair Pay and Safe Workplace" executive order in the Eisenhower Executive Office Building South Court Auditorium, July 31, 2014. The President is joined on stage by Labor Secretary Thomas Perez as well as employers who support fair labor practices, workers who have seen firsthand the effects of workplace violations, and advocates who have worked to improve fair pay and safety standards. (Official White House Photo by Pete Souza)
President Barack Obama signs the “Fair Pay and Safe Workplace” executive order in the Eisenhower Executive Office Building South Court Auditorium, July 31, 2014. The President is joined on stage by Labor Secretary Thomas Perez as well as employers who support fair labor practices, workers who have seen firsthand the effects of workplace violations, and advocates who have worked to improve fair pay and safety standards. (Official White House Photo by Pete Souza)

Often referred to as the “blacklisting” law, the Executive Order requires prospective and existing contractors to disclose violations of 14 federal labor laws plus state equivalents, requires them to provide certain information each pay period to enable workers to verify the accuracy of their pay, and prohibits certain contractors from using pre-dispute arbitration agreements to address sexual assault and civil rights claims.

The rule from the Federal Acquisition Regulatory Council (U.S. Department of Defense, U.S. General Services Administration and NASA) and guidance from the U.S. Department of Labor (USDOL) are designed to assist agencies in implementing the Executive Order. They detail procedures for making the disclosures, assessing violations, developing conditions for further consideration of bids, and providing required notices to workers.

The final rule and guidance remain burdensome and problematic for several reasons.  First, they create a publicly available repository of contractor violations. They also require the contracting officer to determine whether a contractor is a “responsible source” based on violations that may not be final or are subject to appeal. Moreover, contracting officers wield the power to require bidders with records deemed less-than-satisfactory to commit to a labor compliance agreement in order for their bids to be considered. Although some minor changes were made to the proposals between the initial release and ultimate finalization, the overall effect remains the same.

Keep reading this article at: http://www.mondaq.com/unitedstates/x/523316/employee+rights+labour+relations/Government+Releases+Final+Rule+Implementing+Blacklisting+Law

Federal contractor guidance on prohibiting LGBT discrimination arrives amid heated Congressional debate

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EO 11246The Labor Department yesterday (June 15, 2016) published detailed guidance to help federal contractors comply with an executive order that prohibits companies from discriminating against LGBT employees.

The final rule updates existing anti-discriminatory guidelines already on the books to include sexual orientation and gender identity and explains contractors’ obligations and potential costs related to implementing the amended Executive Order 11246, which President Obama issued in July 2014. The original E.O., issued by President Lyndon B. Johnson in the 1960s, prohibited federal contractors from discriminating against any employee or applicant for employment because of race, color, religion, sex or national origin. Obama updated it to include the language related to LGBT employees and applicants, and added protections against retaliation for employees who openly discuss or disclose compensation.

The E.O. applies to federal contractors and subcontractors who do more than $10,000 in business with the government in one year.

Keep reading this article at: http://www.govexec.com/contracting/2016/06/federal-contractor-guidance-prohibiting-lgbt-discrimination-arrives-amid-heated-congressional-debate/129070

5 things contractors should care about in 2016

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Person drawing a graph

Calendar 2016 is in full swing and the fiscal year is nearly a third of the way through, but it’s not too late for government contractors to get ahead of the new year.

Recently, the Washington law firm Crowell & Moring hosted a webinar on topics ranging from acquisitions to intellectual property rights. Here’s a look at some of what contractors should keep their eyes on and ears turned to in 2016:

  1. An Election Year
  2. Labor and Employment
  3. Cybersecurity
  4. Intellectual Property and Data
  5. Mergers and Acquisitions

Keep reading this article at: http://federalnewsradio.com/industryassociations/2016/01/5-things-contractors-care-2016/ 

Annual EEO and VETS forms submitals required of many employers and contractors

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Many private companies and federal contractors and subcontractors are subject to federal reporting requirements involving employment data.  The deadline to file federal EEO-1 and VETS-100/100A forms is September 30, 2010.  Here are the details on the requirements, including who is covered, and what must be done.

What is an EEO-1 Form?

The EEO-1 form is an annual report that categorizes employees based on ethnicity, race and gender, as well as by job category. The EEO-1 form uses data from any pay period in July, August or September of the filing year.

What is the VETS-100 Form?

The VETS-100 and VETS-100A forms are annual reports that track the employment and hiring of former military service members by job category and type of veteran, and use data from any pay period in July or August of the filing year. Additionally, the VETS-100 and VETS-100A forms contain a 12-month summary of information, dating back 12 months from the specific pay period selected.

Why are these forms important?

In addition to the legal requirement that they be completed, the forms are used by government agencies, such as the Office of Federal Contract Compliance Programs (“OFCCP”), to help select compliance evaluation targets and track employment patterns, and are used by plaintiffs in lawsuits. Thus, accuracy and timeliness in completing the forms is critical.

How do I get the employee information to prepare the forms?

The government recommends that employers request that applicants/employees voluntarily self-identify as to their racial/ethnic status. Federal contractors are required to request applicants to self-identify voluntarily concerning their veteran status.

Who must file the EEO-1 report? 

  • All private employers subject to Title VII of the Civil Rights Act of 1964 (as amended) with 100 or more employees, excluding, among others, state governments, Indian tribes and institutions of higher education.
  • Private employers with fewer than 100 employees if, together with related entities, the entire “single” enterprise employs 100 or more employees.
  • All federal government contractors (unless otherwise exempt) who are prime or first-tier subcontractors, with a contract/subcontract of $50,000 or more, and who employ 50 or more employees.
  • Certain financial institutions, regardless of the dollar value of the federal contract.

Who must file the VETS-100/100A reports?

Certain federal government contractors and subcontractors are subject to the VETS-100/100A filing requirements.

  • Federal government contractors and subcontractors with a contract of $25,000 or more, entered into before December 1, 2003 must file the VETS-100. However, if this contract has been modified since December 1, 2003 in the amount of $100,000 or more, the VETS-100A must be filed instead.
  • Federal government contractors and subcontractors with a contract of $100,000 or more, entered into on or after December 1, 2003 must file the VETS-100A. Depending on when the contracts were signed and the amount of the contracts, an employer may need to file both t?he VETS-100 and the VETS-100A.

How Do the Reports Cover Multiple Facilities?

A single-establishment employer must submit one EEO-1 and one VETS-100/100A report. Multi-establishment employers must submit multiple reports, which can be accomplished in a few different ways depending on the number of employees at each separate facility.

Where Do I Obtain More Information?

For more information about EEO-1 reporting, visit the U.S. Equal Employment Opportunity Commission’s website at http://www.eeoc.gov/employers/eeo1survey/faq.cfm.

For more information about VETS-100 reporting, visit the U.S. Dept. of Labor wbsite at http://www.dol.gov/vets/programs/fcp/main.htm.

IRS ‘contractor’ study raising big concerns

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The Internal Revenue Service has launched a hard look at how companies count contractors and full-time employees, prompting business advisers to urge companies to take a look before the revenue service does.

“I’m guessing the use of independent contractors and contingent workers has expanded a lot in the last 25 years,” said Mike Abcarian, an employment law attorney at Fisher & Phillips in Dallas. “For the IRS this is an issue of a lot of money not finding its way to the federal government.”

The study, which began in March, will involve three years of intensive audits of businesses and workers, and will be used to help the IRS determine the difference between how much tax it collects and how much goes unpaid, said Clay Sanford, an IRS spokesman.

The study will also be used to look for tax cheats on both sides of work arrangements, Sanford said.

An IRS program manager told industry publication Tax Notes Today that 20 Texas companies are part of the first wave of companies being studied, despite the companies being randomly selected. The IRS manager was not immediately available for additional comment.

Speed bump for growth

The study comes at a hard time for businesses looking to grow and be flexible during a stop-and-start recovery.

“A lot of employers are looking for ways to be more efficient,” Abcarian said. “If you use independent contractors, you can price your product lower because you have less administrative costs.”

Add in the prospect of additional health care costs tied to regulatory reform, and government changes are giving companies even more reason to avoid new hires, said J.R. Gonzales, former president and CEO of the U.S. Hispanic Chamber of Commerce.

“The economy’s not making it any easier (to hire), and more restrictions will make it more difficult,” he said.

Independent contractors are concerned, too.

“When you’re looking for a flexible work force this is an ideal situation,” said David Dunnigan, executive director of the Dallas-based Coalition for Independent Contractor Freedom. “In many cases, you can make more money as an independent contractor because there’s not a ceiling there.”

If the IRS redefines how contractors are classified, that flexibility and upside for entrepreneurial contractors could be challenged, he said.

A more aggressive IRS

Fundamentally, it’s easier for the IRS to collect employment taxes from companies and their full-time employees, Abcarian said.

That creates a bias in the IRS toward counting workers as employees rather than contractors, said Jim Smith, an accountant with Smith Jackson Boyer & Bovard PLLC in Dallas.

“They are increasingly auditing (small and mid-sized businesses) that are reporting a large number of contractors,” he said. “It’s not a program, it’s a pogrom,” Smith said.

If a company has accidentally misclassified full-timers as contractors, it should simply correct that mistake, said the IRS’ Sanford. But if a business has “no reasonable basis” for misclassifying a worker, it can be held liable for all the workers’ employment taxes, not just the portion typically paid by the company.

Companies could also face penalties and interest. In extreme situations, a company could face class action lawsuits on behalf of misclassified workers claiming they haven’t been properly paid for the hours they’ve worked, Abcarian said.

He said he expects to see a more aggressive IRS even before the study is done, and businesses should get ready.

“This is a very appropriate time for employers to do their homework in terms of classification of employees to be sure they’re doing it right,” he said.

— by Chad Eric Watt – Staff Writer – Dallas Business Journal -Friday, June 4, 2010  |  Modified: Saturday, June 5, 2010

“Tech Tune-Up” Features Free Webinars

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Solutions for a Better Small Business:

The Georgia Tech “Tech Tune-Up” is a free webinar series designed to tackle the topics most important to the small manufacturers throughout the State of Georgia.

What to Do Before and When OSHA Comes Knocking

February 24, 2010, 12:00 noon

Click here to view the archived webinar.

OSHA is increasing its compliance efforts and small manufacturers are seeing a big increase in the number of citations and the size of fines.  Learn more about how OSHA operates, the areas they’re focusing on, and what you can do to be ready – before and when they show up at your door.

Generating Sales and Boosting Profits in a Difficult Economy

March 10, 2010, 12:00 noon

Click here to view the archived webinar.

Learn about a process to identify new markets, new business models, and new products/services that work – even for those who do not have a strong history of product and market development.  This can be done with your people and on a budget using “fail fast, fail cheap” methods.   Learn how to get started NOW!

Pending Employment Laws That Could Rock Your World in 2010!

March 24, 2010, 12:00 noon

Click here to view the archived webinar.

In this webinar, you’ll learn about some of the most significant legislation in the pipeline and what you can do to prepare.

Driving Down Costs to Accelerate Profits

April 14, 2010, 12:00 noon

Check back to see the archived webinar soon.

Six strategies to drive down your Costs!   We all know that reducing our cost can be the fastest way to increase our profit.    We’ll explore six often overlooked cost-busting strategies that could pay big dividends in 2010.

How to Successfully Identify, Compete for and Win Government Contracts

April 28, 2010, 12:00 noon

To register click here

The initial steps your company should take to determine whether government contracting is right for you!  We’ll cover how to register, where to find opportunities, how to avoid pitfalls, and how to effectively compete in the government marketplace.

 

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