Judge Grants Preliminary Injunction Blocking Implementation of Fair Pay and Safe Workplaces Rule

On October 24, 2016, Judge Marcia A. Crone issued a
nationwide preliminary
injunction
in Associated Builders and
Contractors of Southeast Texas v. Rung
(E.D. Texas, No 1:16-CV-425) blocking
the implementation of the Fair Pay and Safe Workplaces final rule. Specifically,
the injunction blocks the implementation of the rule’s requirements that contractors
self-disclose labor law “violations” and that they eliminate provisions in
their arbitration agreements restricting lawsuits for Title VII or sexual
assault allegations. The injunction does not, however, affect the Executive
Order’s “paycheck transparency” requirements, which will take effect on January
1, 2017.

For federal contractors, the injunction was granted in the
nick of time-just one day before the self-disclosure and arbitration
requirements were scheduled to take effect.

The preliminary injunction will last until a final decision
is reached in the case, although the government will likely ask the judge to
reconsider her decision and ultimately appeal to the federal Court of Appeals
for the Fifth Circuit and possibly the U.S. Supreme Court. If the injunction is
upheld, it remains to be seen whether the government will attempt to revise and
significantly reduce the rule to address the legal and constitutional shortcomings
identified in the court’s ruling.

Finding that the plaintiff contractors demonstrated both a
“substantial likelihood of success on the merits of their case” and risk of irreparable
injury, the court heaped derision on the Executive Order, final rule, and DOL
guidance as having:

  • Imposed “complex, cumbersome, and costly
    requirements . . . which hamper efficiency without quantifiable benefits;”
  • Violated contractors’ First Amendment rights by
    forcing them to “publicly condemn” themselves for allegations that may
    ultimately have no merit;
  • Violated contractors’ due process rights by
    forcing them to report and defend against non-final agency allegations without
    a hearing; and
  • Violated the Federal Arbitration Act.

The court repudiated the new class of reportable
“administrative merits determinations” as “nothing more than allegations of
fault asserted by agency employees and [which] do not constitute final agency
findings of any violation at all.”

The court’s injunction is the latest by a Texas federal district
court barring the implementation of a controversial labor regulation. In June,
the Northern District of Texas blocked the DOL’s “persuader rule.” A challenge
to the DOL’s new overtime regulations is currently pending in the Eastern
District of Texas.

If you have any further questions, please contact your FortneyScott attorney, or e-mail us at info@fortneyscott.com

OFCCP Director Patricia Shiu to Leave Agency

Patricia A. Shiu, Director of the U.S. Department of Labor?s Office of Federal Contract Compliance Programs, will be leaving the agency, according to information announced today during a public meeting held by the U.S. Equal Employment Opportunity Commission. Director Shiu was appointed as Director of OFCCP in 2009 by the Obama Administration.

The announcement of Director Shiu?s departure comes shortly after the EEOC announced that David Lopez, general counsel of the EEOC since 2010, would be leaving the agency in early December. Mr. Lopez leaves as the longest-serving general counsel in the history of the EEOC.

EEOC Announces Approval of Revised EEO-1

On
September 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC)
announced approval of its revised Employer
Information or EEO-1 report
, which employers must file with the EEOC annually to
report demographic information about their workforces. On March 31, 2018, private
employers, including federal contractors, with 100 or more employees must
include summary compensation and hours-worked data in their annual EEO-1 report.
Specifically, covered employers will be required to
report

employees’W-2 earnings and hours-worked data, broken
down by gender, race, ethnicity, and by 12 pay bands
in each of the 10 EEO job categories. 

The
new reporting requirements do not affect employers’ 2016 EEO-1 report due on
September 30, 2016.  However, beginning
in 2017, the annual filing deadline will be pushed back from September 30 of
the reporting year, to March 31 of the following year.  Accordingly, the first time employers’ must
file the EEO-1 reports containing the new data is by March 31, 2018. 

To
accommodate the EEO-1’s new filing schedule, employers’ annual EEO-1 “workforce
snapshot” period (the time period during which employers survey their
employees) will shift from the third quarter to the final quarter of the
calendar year, beginning with the EEO-1 report due on March 31, 2018.

Since
last February when the EEOC published its initial proposal to collect this
additional data, the employer community has repeatedly voiced strong objections
and concerns regarding the use of W-2 data; the ability to accurately track
employees’ hours-worked; the utility of the information being collected; the
increased burden and costs that were not accurately considered in the EEOC’s
proposal; and insufficient safeguards to protect the privacy of the data.  Unfortunately, these genuine concerns largely have
gone unheeded.  Aside from changing the
EEO-1 reporting schedule so that employers will not have to issue an additional
W-2, in the final EEO-1 the EEOC made no other substantive changes from the
agency’s initial proposal.

Although
the EEOC has posted an assurance on its website that the agency “maintains
robust cybersecurity and privacy programs,” and will require employers to
choose a new password to access their next report, these warning will do little
to allay employer concerns regarding the security of their data.

For
federal contractors, it is important to note that EEOC shares EEO-1 data with
the Department of Labor’s Office of Federal Contract Compliance Programs
(OFCCP). The EEOC is prohibited by Title VII from releasing any individual
EEO-1 data, with EEOC employees subject to criminal penalties if they are
involved in such a release. However, the EEO-1 Report data shared with OFCCP has
more limited protections under the exemptions to the Freedom of Information Act.

Next
Steps

The
EEOC will be offering webinars on October 20 and 26 and providing technical
assistance through email and the agency’s hotline to help businesses comply
with the new requirements.

Additionally,
employers should consider the following steps in 2017 as they prepare for the
new EEO-1 reporting requirements:

  • Assemble a team with
    the necessary subject matter expertise that typically includes legal, HR,
    compensation, timekeeping, payroll, and other affected areas. The assessment team should evaluate the
    company’s current capabilities promptly, so that there is sufficient time to
    undertake necessary updates and changes to systems and reporting
    capabilities.
  • Review the
    payroll and HRIS systems to determine where the earnings and hours-worked data are
    maintained, and whether the new, expanded data requirements can be met from the
    current systems. Typically,
    modifications may be required in order to be able to collect hours worked data.
  • If the company
    uses a separate system for payroll, then consult with the company’s IT representatives
    to complete any necessary updates of their HRIS systems to accommodate and
    integrate the additional data.
  • Employers who rely
    upon outside vendors to generate W-2 forms, and do not maintain the information
    internally (specifically the individual employee earnings reported in Box 1)
    will need to review their contracts and confer with their vendor to determine
    the most efficient way to import the W-2 data to the system(s) that are used
    for preparing the new EEO-1 report.
  • Determine
    whether the company will use the permitted default entries of 40 hours (full
    time) and 20 hours (part-time) for exempt employees or will provide exempt
    employees’ actual hours, either by tracking hours worked or determining whether
    the employees’ work hours are available from other records, e.g., log-ins, federal contracting
    billing reports, etc..
  • Employers should
    ensure that all reasonable steps are taken to protect the confidentiality of
    their data once it is in the agencies hands.

Please
contact either the FortneyScott attorney with whom you work or Leslie
Silverman, Esquire from FortneyScott for additional information or advice on
complying with the new EEO-1 reporting obligations.

Maryland?s Aggressive New Pay Law Goes Into Effect on October 1st: 5 Key Changes

On May
19, 2016, Maryland Governor Larry Hogan signed The Equal Pay for Equal Work Act
of 2016, bolstering the state’s protections against pay discrimination.  Maryland will officially join the ranks of
New York and California when this aggressive new pay law goes into effect on
October 1, 2016.

We have identified five key aspects of the new law that
employers with locations in Maryland should bear in mind:

  1. Maryland has
    prohibited pay differentials based upon an employee’s gender identity. 
  2. It is no longer just
    about compensation. 
    In addition to
    protecting against discrimination in pay, the new law forbids employers from
    providing “less favorable employment opportunities” based on employee’s sex or
    gender identity. This precludes employers from : assigning or directing an
    employee into a less favorable career track or position, if offered; failing to
    provide information about promotions or advancement in the full range of career
    tracks offered by employer;  and limiting
    or depriving employee of employment opportunities which would otherwise be
    available to employee but for employee’s sex or gender identity.
  3. Employees do not have
    to work in same establishment to be comparators.
     
    Maryland has expanded the pool of comparators
    beyond the “establishment” where an employee works to include employees who
    “provide work of a comparable character or work on the same operation, in the
    same business or of the same type” for the employer at workplaces in the same
    county
    of the state. 
  4. Maryland has
    instituted strong pay transparency and anti-retaliation provisions aimed at
    shielding employee discussions around pay.
     
     Employers may not prevent
    employees from (i) inquiring about, discussing, or disclosing wages to other
    employees; (ii) questioning employers about their wages; and (iii) aiding or
    encouraging other employees to exercise their rights under the new law.  Employers are prohibited from taking adverse
    action against employees for engaging in any of the aforementioned activities;
    nor may employers enter into agreements, which require employees to waive their
    rights to discuss or disclose wages.
  5. Employers must
    institute written policies in order to take advantage of the law’s affirmative
    defense
    .
      Under the law, employers
    may issue written policies prohibiting certain employees from discussing or
    discovering the wages of another employee without that employee’s permission (e.g., supervisors and those whose jobs
    directly reveals such information, such as payroll and HR, where the wage information
    was learned in the employee’s performance
    of  his/her job duties came from the employee’s performance of  his/her job duties).  Employers may also establish reasonable
    workday limitations of the time, place and manner for employee inquiries and
    discussions about pay, provided that the limitations are in writing and
    consistent with standards, yet to be issued by Maryland Equal Pay Commission,
    and with state and federal laws, including the National Labor Relations
    Act.  These written policies must be
    distributed to employees in order for an employer to utilize an employee’s
    failure to comply with these restrictions as an affirmative defense.

In addition to New York, California, and now Maryland equal
pay laws, employers should also be aware of a sweeping new pay equity
legislation, which was recently enacted in Massachusetts.  When that law goes into effect in July 2018,
Massachusetts will become the first state to restrict employers from requiring
that applicants disclose prior salary history. 

Next Steps

Given these tough new state laws, and the focus on
compensation collection and enforcement efforts by the Equal Employment
Opportunity Commission and the Office of Contract Compliance Programs,
employers should consider taking the following steps to ensure that their
compensation practices and pay differences are lawful and defensible.
 

  •  Conduct a comprehensive compensation compliance audit that
    includes: identifying the factors that influence compensation, conducting a
    statistical analysis of similarly situated employees, and thoroughly review
    their compensation policies, practices and procedures.  The assessment should be conducted under the
    guidance of experienced counsel in order to protect audit results under the
    attorney-client privilege;
  • Train all personnel involved in compensation decisions
    (hiring and raises) on the new legal requirements and standards; and
  • Ensure that all supervisors and HR understand the new pay
    transparency and anti-retaliation protections.

Please
contact your FortneyScott attorney if you have specific questions about the new
Maryland equal pay law, or if we can assist you with complying with the new
equal pay laws and regulations.

 

GAO Issues Long-awaited Report on OFCCP

The Government Accountability Office (GAO)
issued its report on OFCCP
entitled “Strengthening Oversight Could Improve Federal Contractor
Nondiscrimination Compliance.”  The GAO
concluded that although most of the agency’s compliance evaluations ended in a
finding of no violation, the OFCCP’s process for selecting contractors is not
designed to focus on contractors most likely to be noncompliant.

As a result the GAO says the OFCCP should:

  • Change contractor
    selection process so contractors chosen based on their risk of noncompliance;
  • Develop mechanism
    to monitor contractors’ compliance with AAPs on regular basis;
  • Improve outreach
    and compliance efforts to improve contractors’ and employees’ understanding of
    AA and equal employment requirements;
  • Provide uniform
    and continuing training to OFCCP staff; and
  • Assess current contractor
    guidance for clarity.

When
GAO provided a copy of the report and its recommendations to OFCCP, the DOL
indicated agreement with the GAO’s recommendations and the agency agreed to “take
additional steps to strengthen oversight and improve compliance with nondiscrimination
requirements.”

For
additional details, or if you would like to discuss how this report could impact
your OFCCP compliance, please contact your FortneyScott attorney.

Update on Fair Pay and Safe Workplace Regulations Implementation

Since
the initial FS Client Alert on the final Federal Acquisition Regulation (FAR)
rule and the Department of Labor (DOL) guidance implementing the Executive
Order on Fair Pay and Safe Workplaces (final rule), FS attorneys have learned
some important information on how the final rule will be implemented.  

Current
implementation of the final rule is being phased in starting on October 25,
2016.  At that point, the actual or prospective
contractors or subcontractors (herein “Contractor”) proposing on new
procurements of $50 million or more are required to make disclosures regarding
fourteen identified Federal labor and employment laws, and state approved
occupational safety and health plans.  The
Agency Labor Compliance Advisor (ALCA) receiving the disclosures is required to
place this disclosure information into an “assessment case file” that will
reside in the ALCA Hub being established. 
It is currently anticipated that the Contracting Officer (CO) will only be
provided access to the ALCA’s recommendation and identified basis for that
recommendation.  The CO will not have
access to the underlying disclosure information in the ALCA Hub.

  • The
    CO involved in the particular procurement will assess the ALCA recommendation
    to determine whether action is appropriate and, if so, what that action will
    be.  While the disclosures will be
    publicly available, the Contractor may request protection from public
    disclosure of its explanatory or mitigating information.  There is reason to believe that the
    underlying ALCA assessment made during a procurement may be considered
    predecisional and exempt from public disclosure. 

Starting
on September 12, 2016, a Contractor can request a preassessment of its
violations.  The Contractor seeking the
preassessment will disclose its violations and may also provide explanatory or
mitigating information.  The Contractor may
request protection from public disclosure of its explanatory or mitigating
information.  However, what is not clear
is whether the information submitted to DOL as part of the preassessment
process can be accessed and used by enforcement agencies and ALCAs outside of
the preassessment process. 

  • In
    contrast to where disclosures are made and assessment decisions are rendered by
    the CO during the procurement, the preassessment decision will be made by DOL,
    or the enforcement agency.  There is
    concern that the written decision may not be protected from public disclosure as
    it is not part of a predecisional deliberative process in a specific procurement.

Although
the prime contractor can rely on a subcontractor’s representations regarding
its Labor Law violations in making its responsibility determination, the
Government is encouraging the prime to refer the subcontractor to the
appropriate enforcement agency if the prime believes there is a responsibility
problem.

The
DoD has appointed its own ALCA.  That
ALCA is appointing ALCA representatives for each DoD procurement activity.  The ALCA representative will be responsible
for collecting the disclosure information from Contractors, for entering it
into the ALCA Hub and for using DOL guidance to perform the initial assessment
of whether to recommend one of following possible dispositions:

  1.     
    No
    issue-Contractor has a satisfactory record of responsibility.
  2.     
    Issue-Action
    is required before proceeding with an award decision.
  3.     
    Issue-Contractor
    must commit to negotiation of LCA before the CO can proceed with an award.
  4.     
    Issue-Contractor
    must complete the LCA as a condition of an award.

 Where
the ALCA representative finds an issue, the matter is referred to the ALCA with
the ALCA representative’s recommendations. 
The ALCA will review and forward his recommendation to the CO for final
review and decision.  Where the CO
decides to dispose of the matter per item 4, the matter must be referred to the
responsible agency Suspension Debarment Official for further consideration.

For
Paycheck Transparency, Contractor systems will likely require updating to
enable them to report on the required information. 

A
formal request to delay implementation of the final rule has been submitted to
the Office of Federal Procurement Policy by the Council of Defense and Space
Industry Associations (CODSIA) because of the limited time available to collect
information and get systems in place that can comply with the requirements.  [link to letter] Other questions about
possible postponement of all or a portion of the rule have also been
raised. 

DOL
has established a portal for contractors to
submit questions on FPSW implementation and it is working with the Defense
Acquisition University to prepare web-based training for Federal officials on
implementation of the FPSW.  

The
final rule is a convergence of Federal labor and employment laws and guidance
and Federal government contracting rules. 
Understanding how these laws and regulations intersect and apply may not
be crystal clear.  If you have specific
questions about whether you are covered by the new rule and its implementation
requirements, contact your FortneyScott attorney.

Compensation May Be An Issue That Candidates on Both Sides of the Aisle Are Willing To Embrace

From his earliest days
in office, President Barack Obama has made combatting compensation discrimination
a top priority.  As we are often reminded, The Lilly Ledbetter Fair Pay
Act was the very first bill he signed into law.  Not long thereafter, the
White House created the National Equal Pay Enforcement Task Force, a cross
agency task force aimed at finding ways to crack down on violations of equal
pay laws.   As this President’s term begins to wind down, we have
seen the Equal Employment Opportunity (EEO) agencies take action.  In
June, the Office of Federal Contract Compliance (OFCCP) issued new Sex
Discrimination Regulations.  Earlier this month, the Equal Employment
Opportunity Commission (EEOC) in coordination with OFCCP, published revised
guidelines that will require employers to include employee compensation
information in their annual EEO-1 reports.  If the Office of Management
and Budget approves, beginning in March 2018, employers with 100 employees or
more must share employee pay data with the EEOC and the OFCCP annually.

If last week was any
indication, employers, who may have been ignoring the issue under the guise
that the increased federal focus on compensation is sure to dissipate in a
Trump administration, are likely to be in for quite a surprise.  At the
Republican National Committee convention last week, the Trump campaign appeared
ready to embrace equal pay.  During Ivanka Trump’s address to the
convention last Thursday, the GOP candidate’s daughter emphasized the need to
focus on women’s compensation issues.  Ivanka Trump said of her father, “as
President … will change the labor laws that were put in place at a time when
women weren’t a significant portion of the workplace”
 and
“fight for equal pay for equal work.”  Although Donald Trump did not address the
issue in his lengthy acceptance speech, on a number of occasions the GOP
Presidential candidate has indicated that he is studying it  closely and
suggested that the campaign may be introducing equal pay policy proposals in
the not too distant future.

And it is not just the
Republican Presidential candidate that is focusing on compensation.  In a
surprise to many, outside the formal political platform process, last week
Congressman Luke Messer (IN), the Chair of the U.S. House of Representatives
Republican Policy Committee announced that House Republicans have formed a Working
Group on Women in the 21st Century Workforce
.  The Working Group,
which will be chaired by Congresswoman Martha McSally (AZ). will focus on pay
disparity and other barriers impacting women in the workforce. 

FortneyScott will
continue to monitor this issue and anticipate that fair pay issues will garner
even greater attention at the Democratic Convention in Philadelphia this week.
 If you are interested in receiving future development at the national as
well as the state level, please contact FortneyScott
and we will include you in our email list.

DoD Seats Section 809 Panel to Advise on Streamlining and Improving Defense Acquisition Process

Pursuant to Section 809 of the National Defense Authorization
Act for Fiscal Year 2016, the Department of Defense (“DoD”) has provisionally
seated a Panel (“Section 809 Panel”) to review and make recommendations for
streamlining and improving the DoD acquisition process and maintaining defense
technology advantage.  The Section 809 Panel seeks to address the
overarching question of “How would we restructure our business models [DoD’s Business models] to enable a rate of innovation that
would allow us to maintain and increase our technological dominance?” 
including: (1) what significant changes could be made to make the process of
doing business with DoD faster and more efficient? (2) How does DoD change
business models to include emerging technology and adopt new business
approaches? (3) What are the barriers to flexibility and innovation? (4) What
key areas does industry see as most prohibitive to business–technologically
and financially?  A portal is being established so the public can submit
comments.  The Panel is holding meetings to engage the contracting
community in identifying and potentially addressing significant areas of
concern.  It also plans to establish task forces to analyze each of the
identified areas and to develop recommendations for inclusion in a report to
the Secretary of Defense.  The Secretary then will provide his comments
and the Panel report to Congressional committees.

 The American Bar Association Public Contract Law Section (“ABA
PCLS”) submitted comments in response to the questions raised by the Panel in
these initial outreach efforts. Click here to view the comments as
filed. 

If you are interested in further information on this Panel, please contact Susan Ebner, Shareholder at FortneyScott.    

GSA Issues Final Rule on Transactional Data Reporting and Proposed Rule on Access to Reported Data

Starting
with a phase-in pilot program on July 1, 2016, the recently issued General
Services Administration (“GSA”) final rule will require contractors to report a
minimum of eleven elements of transactional data (including contract and order
numbers, deliverable descriptions, manufacturer and part number, unit measure, quantity
sold, and prices paid per unit for items and services, as well as total price
(“TD”)) on orders issued under covered FSS, GWAC or IDIQ contract vehicles.   The new TDR clause is intended to help the
Federal government improve competition, lower prices and increase
transparency.  However, the new rule may
mean increased risks and exposure for Federal contractors.

The new
clause would apply to all new contracts under these FSS, GWAC and IDIQ contract
vehicles, and by bilateral modifications to existing FSS contracts.  The clause will be phased in, starting with a
pilot program phase that will cover eight FSS areas (Schedule 70 General
Purpose Information Technology  Equipment, Software and Services [selected
SINs]; Schedule 00CORP Professional Engineering Services; Schedule 03FAC Facilities
Maintenance and Management; Schedule 51 V Hardware Superstore; Schedule 58 I
Professional Audio/Video, Telemetry/Tracking, Recording/Reproducing and Signal
Data Solutions; Schedule 72 Furnishing and Floor Coverings; Schedule 73 Food
Service, Hospitality, Cleaning Equipment and Supplies, Chemicals and Services).  These eight areas comprise 30% percent of
GSA’s FSS contracts and 43% of the volume of GSA Schedules sales.  Total GSA Schedules sales accounted for more
than $33 billion in FY 2015.  Phase in to
make the pilot permanent or to expand to other FSS areas is not expected for at
least one year.  The rulemaking states
that the new TDR clause is part of an Administration initiative to
fundamentally shift government management of individual purchases and prices
across the Federal government to “buying as one through category
management.” 

Significantly,
under the pilot program, vendors will be required to report their TD monthly,
and GSA, category management personnel and buying officials across the Federal
government will be able to use and share the TD furnished by these vendors to
negotiate and leverage lower prices for purchases not only from these vendors,
but from other vendors that would sell the same or similar supplies and
services.  GSA plans to employ automated
analysis techniques, such as the new Formatted Product Tool (“FPT”), to
facilitate its identification of comparative vendor pricing and to use that data to notify vendors
where proposed pricing is “outside a range determined to be acceptable for
identical items.”   It also intends to use the TD reported to analyze
the pricing of similar items or services, and to plan its future strategic
sourcing needs. 

The
government seeks to encourage existing vendors to accept the clause (and therefore
the contractor’s requirement to report and the government’s ability to use the TD)
by eliminating the Price Reductions Clause’s (“PRC’s”) price protection
provision and current quarterly Commercial Sales Practices (“CSP”) disclosures required
by the Most Favored Customer (“MFC”) clause, in favor of monthly reporting of
TD by covered contractors participating in the pilot program.  If after the first-year of the pilot, GSA
determines that the TD rule does not result in beneficial savings to
government, it could end the program and resume use of the PRC and MFC CSP
provisions.  Alternatively, it could
expand the program.  Either way, the
contractor must bear the significant burden of establishing a system,
electronic or manual, to accumulate, track and report the identified TD
elements monthly.  It also must face the
risk that the government will change or increase the reporting and elements to be
captured and reported, and that the government will still require the provision
of additional pricing data if the Contracting Officer (“CO”) is unable to make
a determination of whether the proposed price is fair and reasonable.   Since GSA plans to issue data extracts to provide
vendors, and the public, transparency into the range of pricing for the same or
similar products, it and the other customers using the GSA FSS, GWACs and IDIQ
vehicles are likely to expect vendors to submit offers that take this horizontal
market insight into account.   While it does not intend that the new TD rule
will turn the acquisition system into “a lowest-price procurement model”, GSA
expects the government to save billions of dollars as it leverages the TD to be
provided by contractors under the new final rule.

In complement
to the final TD rule, on July 7, 2016, GSA issued a new Notice, soliciting
comments by August 29, 2016, regarding the contractor-reported TD that GSA
plans to release to the public.  The GSA
seeks to provide “valuable market intelligence” to the public, including a
contractor’s competitors, and to promote transparency “to the maximum extent
allowable”.  Accordingly, it is seeking
input on how far it can go in the release of TD elements being reported.  At this point in time, the Notice only
identifies two of the eleven elements to be reported (quantity sold and price
per unit) to be exempt from release under the Freedom of Information Act (FOIA)
and through a public “data extract”.  It
is likely that GSA, in soliciting comments, is seeking justification to
publicly report this data as well.

Takeaways:

  • The new TD rule requires contractors to provide the eleven TD
    elements at no additional cost to the Government.  Whether you have a new contract or would
    accept a bilateral modification to include the clause in your existing
    contract, you need to develop a compliant system.  Plan ahead to address the requirements and
    costs that will arise due to the change.
  • The new TD rule requires reporting of TD on all supplies and
    services delivered by the contractor during the performance of the orders
    issued against covered contracts, and apparently not just the supplies or
    services SINs that are part of the pilot program.
  • Because this is a new way of assessing pricing, the GSA is
    issuing new GSA Acquisition Manual guidance for government procurement
    officials.  These personnel will need to
    be trained to understand the uses and limits on the TD being reported. 
  • Given the GSA’s recently issued Notice and request for
    comments on the releasability of TD data elements, contractors and vendors
    should make sure that they vigilantly mark and protect their proprietary data
    from unauthorized use, release and disclosure.  They may also consider commenting on this
    Notice. 
  • Given the recent Supreme Court case on implied certification,
    Universal Health Services, Inc. v.
    Escobar,
    reporting under the final rule may be considered an implied certification.  Exercise care to ensure you maintain a
    consistent and accurate accounting method for tracking and reporting your
    transactional data, and paying your industrial funding fee (“IFF”) and/or
    Contract Access Fee (“CAF”).

 

The new clauses are scheduled to be included
in contracts starting as early as July 1. 
And the Notice is out for comment until August 29, 2016.  Please forward this information to your
personnel involved in GSA FSS, GWACs, IDIQ contracting and subcontracting.  If you have questions about the new rule, or
compliance matters, contact Susan Ebner, or your Fortney Scott counsel. 

US Department of Labor?s Persuader Rules Enjoined

On June 27, 2016, the United States District Court for the Northern District of Texas issued a preliminary injunction enjoining the implementation and enforcement of the U.S. Department of Labor?s Persuader Rule, 81 Fed. Reg. 15,924 et seq. (March 24, 2016).  The Court?s injunction, issued in National Federation of Independent Business v. Perez (N.D. Texas), is effective nationwide.  The now-enjoined rule would have required, effective July 1, extensive reporting on union-related services by employers? outside counsel and consultants, as summarized in FortneyScott?s prior alert.   The injunction will remain in place until the case is decided on its merits or until a further order is issued by the Court, the Fifth Circuit Court of Appeals, or the Supreme Court.