DoD Issues Draft Guidebook for Acquiring Commercial Items

“Commercial
item” purchases are often favored both by the Government and by contractors, as
they are subject to fewer regulations and may be procured more quickly, using
streamlined Federal Acquisition Regulation (“FAR”) Part 12 procedures.  Recently enacted laws encourage this strong
preference for the acquisition of commercial supplies and services.  On February 24, 2017, the Department of
Defense (“DoD”) issued a draft Guidebook for Acquiring Commercial
Items
(“Guidebook”).

The draft Guidebook is comprised of two parts – Part A:
Commercial Item Determination and Part B: Pricing Commercial Items.  Part
A
of the Guidebook proposes processes and decision trees, and some examples
of their applications, for DoD personnel to use in assessing whether a product
or service qualifies as a “commercial item” under FAR 2.101 “Commercial item”.   Part B of the Guidebook proposes
processes and decision trees for conducting a price analysis to determine the
appropriateness of a contractor’s proposed commercial item pricing.

Takeaways:

  • The Guidebook proposes a road map for the DoD to
    use to determine whether a particular product or service will qualify as a “commercial
    item.”
  • Once DoD issues a Commercial Item Determination
    (“CID”), it can be used in future DoD procurements.
  • The Guidebook, once issued, should be of
    significant benefit to contractors, too. It can be used to guide contractors with
    regard to what they need to provide to DoD to demonstrate that their product or
    service, or the product or service of their subcontractor(s), qualifies as a “commercial
    item.”

The period for submission of comments on the Guidebook has
been extended; comments are due on or before May 1, 2017.

If you have
questions about this draft Guidebook, or are interested in learning more about
whether a particular product or service might qualify as a “commercial
item” subject to more streamlined acquisition requirements and processes, please
contact your Fortney & Scott attorney, or Susan Warshaw Ebner.

CSALs were Mailed on February 17, 2017/Revised Pay Transparency Notice

OFCCP has confirmed that as of February 17, 2017 that it has mailed 800 Corporate Scheduling Announcement Letters (CSALs) in its first release of the FY2017 Scheduling List. These are the first CSALs issued by OFCCP in approximately two years. In the revised FAQs for CSALs, OFCCP stated that these CSALs are being sent directly to establishments notify them that they will be scheduled for a compliance evaluation during the upcoming scheduling cycle.  According to the FAQs on the Federal Contractor Selection System (FCSS), the 800 establishments cover 375 distinct companies in 29 industries. The FY2017 Scheduling List also includes 30 Corporate Management Compliance Evaluations (CMCEs).
In addition, OFCCP made a small change to the notice that federal contractors must post regarding the Pay Transparency regulations, which became effective on January 11, 2017 and apply to all covered contracts entered into or modified as of that date.  OFCCP has indicated that federal contractors should implement the revised Notice as soon as practicable.  The revised notice can be found here.

Your FortneyScott attorney can provide you with advice on how to respond to these developments, or contact us by email at info@fortneyscott.com for additional information.

Ninth Circuit Court of Appeals Rules Against Reinstating the Travel Ban

In a unanimous ruling, a panel of three judges from the Ninth U.S. Circuit Court of Appeals have upheld the suspension of the immigration travel ban.  FortneyScott’s attorneys will continue to monitor this breaking development and will keep you updated.

FortneyScott Amici Curiae Brief Filed in 9th Circuit in State of Washington v. Trump et al.

Amici Curiae Brief filed by FortneyScott and Employment Law Alliance law firms in State of Washington v. Trump et al., No. 17-35105 (9th Cir, filed February 7, 2017).

OMB Renews Section 503 Disability Self-ID Form

OMB renewed the mandatory language for the Section 503 Voluntary Self-Identification of Disability form for 3 years. The new form expires on January 31, 2020.

Contractors need to replace hard copy forms with the new one immediately. Additionally, electronic versions of the Voluntary Self-Identification of Disability may either be:

  • Replaced; or
  • Updated with the new ?Expires? date of 1/31/2020.

As a reminder, contractors may create an electronically fillable version of the form used to invite self-identification provided that form meets certain requirements. The e-form must:

  • Display the OMB number and expiration date;
  • Contain the text of the form without alteration;
  • Use a sans-serif font, such as Calibri or Arial; and
  • Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).

It is our understanding that OFCCP will give a grace period of up to 10 days as long as contractors make good faith efforts to comply.

Federal Contractors Must Now Provide Privacy Training

At the last minute, the Federal Acquisition
Regulations
were amended by the Obama Administration requiring federal
contractors to provide employees with “privacy training.” The new rule, issued
on January 20, 2017, was effective January 19, 2017!

Under the privacy rule, contractors must provide a program to
train employees to protect personally identifiable information, both their own
and that to which they have access.
Contractors must:

  • identify all personally identifiable information
    (PII) and those who have access or handle it
  • must implement a mandated multi-step training
    program regarding access, use, and maintenance of PII
  • ban access to PII to all who have not completed
    the mandated training.

All contracts with PII, including those for commercial
items, are covered and the requirement to provide privacy training flows-down to all subcontractors including
those for commercial items when they involve handling and safeguarding of PII.

White House Issues Memorandum Freezing New and Pending Regulations

On
January 20, 2017, White House Chief of Staff Reince Priebus issued a memorandum instructing the
heads of executive departments and agencies to take immediate steps to ensure
that President Trump’s appointees and designees have the opportunity to review
any new or pending regulations.

Key steps outlined in the memorandum:

  • Send no regulation to the Office of the Federal
    Register (“OFR”) until a department or agency head appointed or designated by
    President Trump-or an authorized delegate-reviews and approves the regulation
  • Immediately withdraw, for review and approval,
    regulations that have been sent to the OFR but are not published in the Federal Register
  • As permitted by applicable law, postpone by 60
    days the effective date of regulations that have been published in the OFR but
    have not taken effect, and consider proposing for notice-and-comment a rule to
    delay the effective date for regulations beyond the 60-day period
  • In cases where a rule’s effective date has been
    delayed in order to review questions of fact, law, or policy, consider
    proposing further notice-and-comment rulemaking and, for such regulations,
    notify the OMB Director and “take further appropriate action in consultation
    with the OMB Director”

The effect of this memorandum on the new overtime
regulations and Union Persuader rule–both currently enjoined by federal courts–as well as the new EEO-1 reporting requirements remains to be seen. FortneyScott’s
attorneys will continue to monitor this development and keep you updated.

OFCCP Files Two New Systemic Pay Discrimination Lawsuits

In a last blast by the Obama Administration during its final hours, the U.S. Department of Labor?s Office of Federal Contract Compliance Programs (OFCCP) filed lawsuits on January 17, 2017 against banking giant JPMorgan Chase alleging systemic discrimination against women in its pay practices and against the tech company Oracle alleging systemic discrimination in hiring and pay practices in violation of Executive Order 11246.

More specifically, in OFCCP v. JPMorgan Chase & Co. (case number unavailable), the agency alleged that the bank discriminated against at least 93 women by paying them less than their male counterparts in the 4 positions within the company?s Investment Bank, Technology & Market Strategies unit and failed to evaluate its compensation systems to determine whether there were gender-based disparities.

In OFCCP v. Oracle America, Inc. (OFCCP No. R00192699), OFCCP claimed that the company engaged in systemic compensation discrimination against women, African-American, and Asian employees in three lines of business at the company?s headquarters in Redwood Shores, California and that it engaged in a pattern or practice of hiring discrimination in favor of Asian Indians applicants.  Additionally, the agency alleged that Oracle refused to produce required records during its compliance evaluation, including compensation and hiring data, adverse impact analyses, and materials showing that the company performed an in-depth review of its compensation practices.

In both cases, OFCCP is seeking ?complete relief? for the affected workers, including lost pay, interest, and lost benefits, as well as orders permanently enjoining JPMorgan and Oracle from discriminating in their hiring and compensation practices.  If the companies fail to provide relief as ordered in the lawsuit, OFCCP requests that their government contracts be canceled and that they be debarred from entering into future federal contracts.

Adding these latest cases to the high profile suits recently filed against Palantir and Google, it is clear that OFCCP is trying in the final months of the Obama administration to develop a track record of systemic compensation enforcement.  Stay tuned as more announcements could be made during the final hours.

We will continue to follow these cases as they develop.  If you have any questions or need additional information, please contact your FortneyScott attorney.

New Pay Equity Requirements for New York State Contractors

While
there is an expectation that the new Trump administration will nix the revised
EEO-1 Report pay collection requirements, employers should be aware of what
appears to be a new trend that states are stepping into the void and imposing
new pay data reporting obligations.

Most recently, New York Governor Andrew Cuomo
signed an Executive Order on January 9, 2017 that requires New York state
contractors to provide to the state data on the job titles and salaries of all
employees performing work on state contracts after June 1, 2017.

Executive
Order No. 162, entitled “Ensuring Pay Equity by State Contractors,” also
requires that the contractor report the job titles and salaries for its entire
workforce if the contractor cannot identify which employees are working
directly on the state contract.  These
reports must be made quarterly if the prime contract is in excess of $25,000,
and monthly for prime construction contracts in excess of $100,000.

Governor
Cuomo, who is rumored to be considering a presidential run in 2020, also signed
Executive Order No. 161, entitled “Ensuring Pay Equity by State Employers,”
which forbids state entities from asking about a job applicant’s compensation
history.  However, once a conditional
offer of employment has been extended-with compensation-a state entity may
request and verify compensation.  If a state
entity is already in possession of an applicant’s prior compensation, it may
not be relied upon in determining the applicant’s salary, unless required by
law or collective bargaining agreement.  While
an applicant can volunteer their compensation information, the Executive Order
provides that an applicant’s refusal to provide their compensation information
may not be considered in making a hiring decision.

We
will continue to update our website with additional developments.  If you have any questions or need additional
information, please contact your FortneyScott attorney or Nita Beecher at
FortneyScott.

EEOC Issues Last Minute Omnibus Guidance Tracking Harassment Task Force?s Recommendations

With
a few work days left under the current administration, the Equal Employment Opportunity
Commission (“EEOC” or the “Commission”) has released new 75-page draft guidance on workplace harassment.  While the
EEOC’s timing will certainly raise eyebrows, employers should take notice.  The Commission describes its new guidance as
“a companion piece” to the Report
issued by EEOC Harassment Task Force Co-Chairs’ Victoria Lipnic and Chai
Feldblum this past June.  Since Commissioner
Lipnic is the only Republican on the EEOC and widely rumored to be its next Chair,
the proposed harassment guidance could very well survive the Presidential
transition.

EEOC
provides that the proposed Enforcement Guidance on Unlawful Harassment explains the
legal standards for unlawful harassment an employer liability, and provides “a
single legal analysis for harassment that applies the same legal principles
under all the statutes the Commission enforces.”  The proposed guidance consolidates and
replaces four separately issued harassment guidance: EEOC’s Compliance Manual
Policy Guidance on Issues of Sexual Harassment (1990) and on Employer Liability
for Sexual Favoritism (1990); and EEOC’s Enforcement Guidance on Harris v. Forklift Sys. Inc. (1994) and
on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1990).

The
EEOC followed this same procedure when updating its Enforcement Guidance on Retaliation and
Related Issues
  and National Origin
Discrimination

last year.  Employers have 30 days to
review the draft guidance and submit comments.
Once the agency reviews the public comments and makes changes to the
draft guidance, the Commission must vote to approve the final guidance.

We anticipate that
the EEOC will move forward with the new harassment guidance.  Given the guidance’s length and timing we
encourage employers take the time to review the proposal and strongly consider
providing comments to the EEOC.  We will
be preparing a summary of the proposed guidance.  If you are interested in receiving our
summary and participating in FortneyScott’s comments, please contact your
FortneyScott attorney or Leslie Silverman.