Category Archives: Advice to Contractors & Grant Recipients

Davis-Bacon Act Repeal Efforts Renewed

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Republican members of Congress have renewed steps to repeal the Davis–Bacon Act, which sets the prevailing wage requirements for workers employed under federally funded or assisted contracts for the construction, alteration, or repair of public works. In January, Senator Jeff Flake (R-AZ) introduced the Transportation Investment Recalibration to Equality (TIRE) Act that would suspend the Davis–Bacon Act’s provision that workers on federal contracts be paid a prevailing wage for all federal highway construction projects. Additionally, Senator Mike Lee (R-UT) and Representative Steve King (R-IA) [...]Read more

The Trump Administration’s Move Toward Pro-Employer Policies

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On March 27, 2017, President Trump signed House Joint Resolution 37 under the Congressional Review Act, which in essence blocked the Fair Pay and Safe Workplaces Executive Order (the “Blacklisting Rule”) signed by President Obama. By signing this Resolution, the Blacklisting Rule and the Department of Labor guidance remain in place, but as a practical matter will not be enforced by the Trump Administration. This Resolution will have minimal impact on government contractors in the short term since the Eastern District of Texas already issued a preliminary injunction in 2016 enjoining the implementation [...]Read more

GAO Report on Government Contracting Finds Overall Decrease from 2011-2015 and Most Obligations on Service Contracts

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Every year, billions of dollars in products and services are needed to keep running the U.S. federal government’s 18 cabinet-level departments and nearly 100 other independent agencies. In March 2017, the Government Accountability Office (GAO) released results of its one-year audit of the government’s contracts between fiscal years 2011 and 2015 (including its fixed price, cost-reimbursement, and time-and-materials/labor hour contracts). Overall, GAO’s report shows a 24 percent decrease in government-wide contracting in FY 2015 from FY 2011 levels (a drop of approximately $438 billion), with [...]Read more

Alston & Bird Advisory: Highlights of the OIG’s 2017 Work Plan

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In coordination with Alston & Bird partners Dawnmarie Matlock and Wade Pearson Miller and other authors, Construction & Government Contracts associate Erica Harrison Arnold contributed to the Alston & Bird Health Care and Health Care Litigation advisory “New Initiatives for the New Year: Highlights of the OIG’s 2017 Work Plan.” The advisory focuses on new OIG HHS initiatives and projects in the 2017 Work Plan that companies in the health care industry should take special note of when planning their business strategies, risk assessments, internal audits and compliance efforts for [...]Read more

The Washington Post Quotes Jeff Belkin on Obama Order on Contractor Workplace Violations

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On August 31, Alston & Bird Construction & Government Contracts partner Jeff Belkin was quoted in the Washington Post article “Obama Order on Contractor Workplace Violations Takes Effect Soon, Despite Objections.” The article discusses some of the issues surrounding the Fair Pay and Safe Workplaces Executive Order that will compel potential government contractors to report violations covering 14 workplace protections from the previous three years. As indicated by Belkin, the new regulations could turn into a “blacklisting rule” that may shut out “many highly capable, ethical and [...]Read more

Corporate Counsel Quotes Clare Draper on Final “Blacklisting” Rule for Government Contractors

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On August 25, Alston & Bird Labor & Employment partner Clare Draper was quoted in the Corporate Counsel article “New ‘Blacklisting’ Rules for Contractors Add Compliance Burden for Companies.” The article explains what the Fair Pay and Safe Workplaces Executive Order, or so-called “blacklisting rule,” would do and examines some of the anticipated effects. Draper was quoted as saying the firm expects the regulations “to bring about complex compliance issues on a variety of levels to both large and small companies, leaving them increasingly vulnerable to risk.” To learn [...]Read more

Law360 Publishes Article on Kingdomware by Jeff Belkin and Breana Ware

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On June 21, 2016, Law360 published the article “High Court Boosts Veterans Contracts in Kingdomware” written by Jeff Belkin and Breana Ware. In this article, Jeff and Breana discuss the issues at hand in the recent unanimous decision for the U.S. Supreme Court in Kingdomware Technologies Inc. v. United States, No. 14-916. As indicated by Jeff and Breana, this ruling will have a significant impact on the U.S. Department of Veterans Affairs’ procurement process; on current and future protests before the Government Accountability Office regarding the VA’s use, or nonuse, of the Rule of Two; [...]Read more

The Supreme Court Weighs In on the Implied Certification Theory of False Claims Act Liability

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The Supreme Court has handed the Department of Justice and qui tam relators a bigger hammer to wield against government contractors with its opinion in Universal Health Services, Inc. v. United States ex rel. Escobar, confirming the viability of the implied certification theory of False Claims Act (FCA) liability. In this case, the relators filed a qui tam action alleging that a provider of mental-health services in Massachusetts violated the FCA when it submitted Medicaid reimbursement claims that included representations about the services provided, but failed to disclose that the service [...]Read more

OFCCP Announces Final Rule Regarding Gender Equality in the Government Contracts Workplace

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On June 14, 2016, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule setting forth the requirements that covered federal contractors and subcontractors must meet to fulfill their obligations under Executive Order 11246 to ensure nondiscrimination in employment on the basis of sex. The new rule updates prior, outdated guidelines to bring the requirements in line with case law interpreting Title VII of the Civil Rights Act of 1964 and the U.S. Equal Employment Opportunity Commission’s current interpretation of the statute (which sometimes [...]Read more

Supreme Court Hears Oral Arguments in Significant False Claims Act Case

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Our colleagues Jackie Baratian and Jason Popp summarize here the oral argument for Universal Health Services v. United Sates ex rel. Escobar heard by the U.S. Supreme Court on Tuesday, April 19th, laying out the various arguments presented by counsel and addressed by the Justices.  As they note, much of the argument focused on the Restatement of Contracts, as a source of “fraud” in contracting common law, to help draw a distinction between an implied promise and an immaterial unspoken performance detail.  The Justices also took note of the decision in Halper, in which the Supreme Court in [...]Read more