Redstone Government Consulting Blog (24)

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Redstone is excited to provide our Unanet Clients with the new features and functions that are part of Unanet Release 22.3. There are numerous new functionalities that will help clients streamline their processes.

The last blog in this series focused on who (what) OFCCP is, what they require of contractors of various sizes and why compliance is important. Now we want to provide a bit more clarity as to what these requirements are and later in the series, how those requirements impact your processes and policies.

Government Contractor Purchases below the Micro-Purchase Threshold Require NO Documentation

This is a common misconception within the GOVCON community. While the expectations are clearly less documentation and effort are required than that of a larger dollar value purchase, there is not a magic threshold at which NO documentation of the fair and reasonable price is allowed.

The Government runs away to fight another day and another day.

What is this Groundhog Day?

L3 Technologies, Inc. (L3) takes the Government to task[1] for “challenging both indirect and direct costs paid to L3 on several government contracts for certain years.” During the long-drawn-out process of the litigation, “the government apparently thought better of its claims and withdrew them in toto[2] and represented it would make no further claims on the contract years in question.” L3 opposed, the dismissal seeking either summary judgment in its favor or that the Board “keep the appeals live so that it can obtain a victory that, it believes, would preclude its suffering similar government claims in other contract years.” No such luck, the Board granted the government’s motion and dismissed the appeals.

All we can hope is that someday the fox will get the gingerbread man (aka the Government) and this Groundhog Day nightmare will stop.

[1] Armed Services Board of Contract Appeals (ASBCA) Case Nos. 61811, 61813, and 61814

[2] Fancy Latin word for completely.

Overview

• The 2021 EEO-1 Component 1 data collection is scheduled to open April 12, 2022 with a deadline of May 17, 2022 to file the report.
• OFCCP’s Affirmative Action Plan Certification period begins March 31 and ends June 30. Covered contractors must certify their AAP in the new Contractor Portal.
• The U.S. District Court for the Eastern District of Texas ruled on March 14, 2022 that the Biden Administration violated the Administrative Procedure Act when it delayed and then withdrew the Trump era Independent Contractor Rule. Accordingly, the Court ruled that the Contractor Status Rule became effective on its original effective date, March 8, 2021.
• The Department of Labor announced a Notice of Proposed Rulemaking (NPRM) to update the Davis-Bacon and Related Acts.
• The US Department of Labor released a field assistance bulletin (FAB) regarding specific examples of what constitutes unlawful retaliation under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and visa programs.
• The EEOC has updated its question-and-answer COVID guidance, this time with information about Title VII’s prohibition on religious discrimination in the context of religious accommodations to workplace vaccination requirements. This new guidance helps employers better understand the process of reviewing requests for religious accommodations and when and how to grant them.
• The Office of Federal Contract Compliance Programs (OFCCP) released a new directive (DIR 2022-01) regarding pay equity audits.
  

• On March 31, 2022, the OFCCP issued Directive 2022-02 in an effort to “promote greater contractor compliance” by “conducting comprehensive compliance evaluations” in a timely manner, promoting contractor’s self-audit of systems, implementing cross-regional approach to multi-establishment reviews and promoting communication with contractors.

As mentioned in a previous blog, OFCCP’s Contractor Portal, we are kicking off a blog series related to OFCCP and Affirmative Action requirements for contractors of all sizes. We begin this series by laying the groundwork of who (or what) OFCCP is and what affirmative action is. This series will focus on supply and service contractors; however, construction contractors may also find it helpful. Regardless of the type of contractor, our HR Team is available to assist with all of your OFCCP compliance and Affirmative Action Program (AAP) needs.

This video is the second part of a two part series where we provide an overview of some of the expectations that come with completing a Government proposal and their respective realities.

Lockheed Martin raised a great question to the ASBCA as to “whether the Fly America Act, 49 U.S.C. § 40118 (FAA) and Federal Acquisition Regulation (FAR) 52.247-63 only apply to direct personnel performing direct work on covered contracts, or also applies to indirect personnel or indirect travel.”[1] The Board declined to hear the case as there was no “live dispute” at hand.

[1] Armed Services Board of Contract Appeals Case No. 62377

Below is a novel thought, uttered in 1911 by the President of Columbia University, that may be equally true today:

I weigh my words when I say that in my judgment the limited liability corporation is the greatest single discovery of modern times. Even steam to electricity are far less important that the limited liability corporation, and they would be reduced to comparative impotence without it.[1]

[1]   Corporate Law & Practice (Practicing Law Institute, 2^nd Ed. 1999) at p. 11.

What is the Commercial Item Group (CIG)?

So, what is the DCMA CIG? They are the “cadre of experts” established under DCMA as a result of Section 831 of the FY 2013 National Defense Authorization Act (NDAA). The purpose of the CIG is to assist DoD contracting officers in making commercial item determinations. There are several DCMA ACO’s that have warrants specific to making commercial item determinations on contractor assertions or higher-tier contractor determinations of its supplier’s assertions at the request of a buying command. DCMA CIG has price analysts and engineers that perform market research, evaluate the commercial submission, determine whether pricing is fair and reasonable as well as provide negotiation support.