Government Contracts, Investigations & International Trade Blog : Government Contracts Lawyer & Attorney : Sheppard Mullin Law Firm : Bids, Licenses, Awards, Conflict of Interest.

By Nick Schnermann and Ryan Roberts

On July 14, 2011, the Office of Federal Contract Compliance Programs’ (“OFCCP”) proposed rule implementing Executive Order 11246 became final. See 41 C.F.R. 60-2.1(d)(4). The new rule updates the procedures whereby a contractor submits both initial and renewal applications to obtain OFCCP approval for its Functional Affirmative Action Program (“FAAP”). These revisions are the product of a year-long review of the OFCCP approval process. "The FAAP is back and is better than before" claims OFCCP director, Patricia Shiu. Contractors, however, may beg to differ.
 

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By Thaddeus McBride, Mark L. Jensen and Corey Phelps

Beginning on February 20, 2011, the U.S. Bureau of Citizenship and Immigration Services (“CIS”) assumed a role in the U.S. Government's increasing regulation of technology exports. The new role for CIS relates to the transfer of controlled technology or source code, sometimes referred to as “deemed exports," to non-U.S. nationals.
 

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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.
 

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By Richard Siegel

On March 1, 2011, the Supreme Court of Missouri issued a unanimous opinion holding that a contractor’s “care and maintenance” of the water storage tank and tower for the city of Monroe City, Missouri, was “construction” and thereby covered under the Missouri Prevailing Wage Act, Mo. Rev. Stat. §§ 290.210, et seq. (the “Act”).
 

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By Richard Siegel

Two recent policy changes announced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) likely will lead to a significantly greater number of and increased scope for investigations conducted by that Office into allegations of discrimination and pay disparity against Government contractors.
 

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By Michelle Sherman

“Loose tweets sink fleets” is a new twist on a familiar saying. It is also borrowed from the Navy Command Social Media Handbook issued October 15, 2010. The Navy appreciates that social media is widely used, and that a ban on social media is not the answer. Trying to turn a blind eye to the use of social media, or banning its use in the workplace is naive. Whether they are doing it at work or in their free time, people who hold security clearances, or have access to classified or sensitive information, are using Facebook to connect with friends who may be one to three degrees removed. They are connecting with other professionals on Linkedin, and sometimes tweeting about their every day activities on Twitter.
 

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By Sheldon M. Kline, Karin Hunter Johnson, and Ashley T. Hirano

Executive Order 13496 requires federal contractors and subcontractors to inform employees of their rights under federal labor laws. The Executive Order was signed at the end of 2009 and the Department of Labor (“DOL”) issued a final regulation implementing the Executive Order on May 20, 2010. The DOL regulation went into effect on June 21, 2010.  
 

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The Obama Administration is now planning yet another spending plan, this time in the form of a policy that actively encourages federal contractors either to increase the pay and benefits extended to their workforces, or to face an evaluative disadvantage in competing for federal contracts. This so-called "High Road Procurement Policy" includes an evaluative reward for "potential Federal contractors that pay wages or provide benefits above those required by our laws," including the Service Contract, the Davis-Bacon, the Walsh-Healey, and the Fair Labor Standards Acts.
 

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In October, the United States Senate, by a 68-30 vote, approved an amendment to the Department of Defense (“DoD”) appropriations bill for fiscal year 2010 which prohibits the use of appropriated funds, if such funds are to be paid to any contractor or subcontractor, at any tier, which requires its employees or independent contractors to resolve certain claims through arbitration. The amendment, which passed despite DoD objections, was introduced by Sen. Al Franken (D-MN) (the “Franken Amendment”).
 

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On March 31, 2009, the FAR Councils issued several new interim rules (effective March 31, 2009) implementing the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) (also known as ARRA, The Recovery Act, or the Stimulus Act). See Federal Acquisition Circular (FAC) 2005-32, published at 74 Federal Register 14621-14652. The FAC issued new interim rules on a number of areas required under the Stimulus Act, including:

• Reporting Requirements for Recipients of Recovery Funds (see 74 Federal Register 14639) 
   
• Publicizing Contract Actions (see 74 Federal Register 14636) 
   
• GAO and IG Access to Company Employees (see 74 Federal Register 14646) 
   
• Whistleblower Protections (see 74 Federal Register 14633) 
   
• Buy American Requirements for Construction Materials (see 74 Federal Register 14623)
   

This blog focuses on the final three sets of rules – those relating to Auditor access; Whistleblower protections; and Buy American requirements. The first set of rules is discussed separately here.
 

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In his first month of office, President Obama issued three significant Executive Orders affecting employees of government contractors.  Revoking several Bush administration Executive Orders, the three new orders demonstrate a dramatic shift in federal labor policy.
 

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