Fair Pay and Safe Workplaces Executive Order—What Federal Contractors Need to Know

December 18, 2014

By Sean Milani-Nia

On July 31, 2014, President Obama signed the Fair Pay and Safe Workplaces Executive Order (Order), which imposes new requirements and prohibitions on federal contractors. While the Order is effective immediately, the requirements will not apply to contractors until the final rule implementing the Order is published (likely in 2016). In the meantime, contractors should bolster their compliance efforts to ensure they will be found responsible for future proposals.

Disclosure Requirements
Pre award: Under the Order, offerors on procurement contracts, where the estimated value exceeds $500,000, will be required to disclose certain labor law violations occurring during the prior three years. The Order enumerates 14 applicable federal labor laws and includes their state law equivalents as well.

Upon disclosing such violations, federal contractors will be permitted to explain their efforts to correct the violations and increase compliance efforts.

Contracting officers, in consultation with the agency’s designated Labor Compliance Advisor, must consider violations as well as contractors’ remedial efforts in determining whether contractors have a satisfactory record of integrity and business ethics sufficient to be considered responsible offerors.
Only serious, repeated, willful, or pervasive violations of the labor laws enumerated in the Order will demonstrate lack of integrity and business ethics. In most cases a single violation should not give rise to a non-responsibility determination.

Post award: In addition to disclosing labor law violations prior to award, federal contractors will be required to update their disclosures every 6 months. If a new violation is disclosed, the contracting officer, in consultation with the agency’s Labor Compliance Advisor, may: (1) require an agreement outlining appropriate remedial measures; (2) provide compliance assistance; (3) decide not to exercise an option on the contract; (4) terminate the contract; or (5) refer the contractor to a suspending and debarring official.

Subcontract Agreements
Federal contractors should also be aware that they will be responsible for flowing down similar requirements to their subcontractors. For subcontracts where the estimated value exceeds $500,000 (excluding commercially off-the-shelf items), contractors will need to require subcontractors to disclose any violations of the enumerated labor laws within the preceding three years and to update those disclosures every six months.

Arbitration Agreements
The Order prohibits contractors with federal contracts in excess of $1 million from entering into pre-dispute arbitration agreements with employees relating to Title VII or sexual assault or harassment torts. Contractors will be required to flow down similar requirements in subcontracts greater than $1 million. This provision, however, will not apply where employees or independent contractors entered into a valid agreement to arbitrate prior to the contractor or subcontractor bidding on a contract that is covered by the Order.

The Fair Play and Safe Workplaces Executive Order sets forth yet further requirements with which federal contractors will need to comply. Contractors should focus on increasing their compliance efforts now to ensure that the disclosure of any labor law violations in the future are minimal and not grounds for a nonresponsibility determination.


Federal Allies News September 2014

September 18, 2014

Letter from the Executive Director

U.S. SBA Central Office Government Contracting Transitions

Calvin Jenkins, Dean Koppel and LeAnn Delaney are all retiring this month with Judith Roussel and Darryl Hairston having left last spring. Remaining SES level staff: John Shoraka, SBA’s Associate Administrator of Government Contracting and Business Development responsible for overseeing the umbrella office with jurisdiction over the Agency’s offices of Size Standards, HUBZone, Government Contracting, and Business Development/8(a); and Ken Dodds, Director of SBA’s Office of Government Contracting, responsible for SBA programs and policies including goaling, size standards, size protests, procurement center representatives, subcontracting, certificate of competency, and the women-owned and service-disabled veteran-owned small business programs.

National Defense Authorization Act of 2013 and Mentor Protégé Proposed Regulation

If properly implemented, the Mentor Protégé proposed regulation could significantly expand the number of small businesses actively competing for government contracts.

Following the latest U.S. House Committee on Small Business, Subcommittee on Contracting and Workforce hearing entitled “Action Delayed, Small Business Opportunities Denied: Implementation of Contracting Reforms in the FY 2013 NDAA”, the Mentor Protégé proposed regulation is now with Office of Management and Budget for intra-agency comments. Once U.S. Small Business Administration receives comments from the other agencies, SBA will revise the proposed regulations as needed. Proposed regulation will then be released for public comments within the next 120 days.

“In the near future, SBA will publish a rule to implement a new Government-wide mentor-protégé program. The mentor-protégé program will be for all small business concerns, including socio-economic subcategories of small businesses, consistent with SBA’s mentor-protégé program for participants in SBA’s 8(a) Business Development Program,” said Associate Administrator John Shoraka for Office of Government Contracting and Business Development, U.S. Small Business Administration.

Continuing Resolution and the Lame Duck Session

In a morning small business briefing on September 17 prior to the convening of his afternoon hearing in the House Budget meeting room, Congressman Paul Ryan spoke of his committee’s agenda namely the CR to extend to December the previous two-year agreement achieved with Sen. Patty Murray (See Federal Allies News December 2013) that took the sequester off discretionary spending that hit particularly hard the Pentagon and NIH and many other areas important to Federal Allies Institute members. This will take us to December 11 when the rest of the FY bill is to be finalized. So for at least the near future “the fiscal trains” will run on time, plus following two days debate “fiscal plumbing to prosecute ISIS” is moving forward. Next will be the elections, followed by a lame duck session, which will take on tax extenders for expiring tax provisions from last year, revenue targets, score keepers that will better reflect reality as econometrics have come a long way. By March 2015 expect the Highway Trust Fund to be reauthorized. More priorities: the “doc fix”, Medicare, Debt Limit and Trade issues. The issue that both the Obama Administration and House agree closely upon: trade and making US businesses competitive overseas. Eximbank is extended until June and a goal is to enable more small businesses, not just the well-connected, to take advantage of Eximbank programs.

FAI Corporate Ethics Certification

At coffee at the Russell Senate Office Building with Virginia’s very collaborative senate team Senators Mark Warner and Tim Kaine, I provided an update on Federal Allies Institute’s new Corporate Ethics Certification program, just prior to Senator Kaine’s meeting on ISIL with Secretary of Defense Chuck Hagel and General Martin Dempsey, the Chairman of the Joint Chiefs of Staff. The next FAI Ethics Board of Overseers meeting is to be held at George Mason University School of Policy, Government and International Affairs in October.

David T. Boddie
Founder & Executive Director
Federal Allies Institute


Federal Allies News Summer Edition Pictorial

August 8, 2014

FAN Summer 2014 Cover Image


Health & Human Services Secretary Confirmation Hearing for Sylvia Burwell

May 8, 2014

HHS & Federal Allies Institute have worked together since FAI’s first national conference at Fort Myer, Virginia and the Therapeutic Discovery Project Tax Credit symposium that Federal Allies was asked to organize by U.S. SBA, with Treasury, HHS and FDA.  That conference yielded small bioscience research firms of 250 or fewer staff with millions of dollars to hire new researchers and to keep U.S. research from going offshore.

President Obama’s nominee for Health and Human Services Secretary Sylvia Burwell testifies at her confirmation hearing this morning. On behalf of Federal Allies Institute, I wish Sylvia Burwell and the ability and experience she brings to office, best wishes.

David T. Boddie, Executive Director, Federal Allies Institute

http://www.c-span.org/video/?319176-1/hhs-secretary-confirmation-hearing

C-SPAN Photo credit: Carolyn Kaster, Associated Press


Federal Allies News November 2013

November 4, 2013

Letter from the Executive Director

Federal Allies Institute Board of Directors Election November 4 to 13, 2013

If you have not received your ballot, please call 571-217-0823.

How to Provide Guidance to the 2014 Federal Allies Institute Board of Directors

If there has yet to be a chapter established in your region, please send your comments to Guidance@FederalAllies.org today.  Your input will be championed by the Office of the Executive Director.

Members Acting on Behalf of Members

On behalf of Federal Allies Institute we appreciate efforts made by Patricia Driscoll and New York Chapter Chairman Charles Freeman to advance the FAI program in the Empire State.  We appreciate Federal Allies member Lynn Petrazuollo’s October 15 Fox News appearance On The Record with Greta Van Susteren during the government shutdown  speaking  on behalf of small business contractors.   The recent crisis over the shutdown and debt limit ended October 16.   The interview is posted at FederalAllies.org.

2014 Midterm Elections

Future shutdowns are less likely over the next 12 months until after Tuesday, November 4, 2014.  The midterm elections will offer a referendum on ACA, including the 15 or more provisions that have been delayed or revised, and the pending lawsuits to challenge the administration’s ability to tax, borrow, and spend $700 billion.

It would behoove those without the political strength to defend themselves and their views to join the Federal Allies Government Relations Committee so that your voice is heard.

Cyber Intelligence Sharing and Protection Act, CISPA

The cybersecurity bill would remove legal barriers that prevent companies from sharing information with each other and the government about cyberattacks.   The stated aim of the bill is to help the U.S. government investigate cyber threats and ensure the security of networks against cyberattacks.  The legislation was first introduced on November 30, 2011 by Representative Michael Rogers (MI) and 111 co-sponsors. If you are interested in pursuing this issue at Federal Allies, please contact GovernmentRelations@FederalAllies.org

David T. Boddie, Executive Director

Federal Allies Institute


Federal Allies News May 2013

May 16, 2013

Washington Days Conference in Review

Much is required to produce and sponsor such an extensive event as Washington Days Conference and when it comes to Board of Directors our board is second to none.  And together, we appreciate the encouraging remarks made recently by U.S. Senator Mary Landrieu (La), Chair, U.S. Senate Committee on Small Business & Entrepreneurship, and U.S. Representative Sam Graves (Mo-6), Chair, U.S. House Small Business Committee on behalf of the Federal Allies Institute and our event held in Washington, D.C.   We appreciate Dr. Winslow Sargeant and his staff at U.S. Small Business Administration’s Office of Advocacy for their strong support of the Federal Allies Institute.

Thank you for your support to the many federal agencies, military, and House and Senate staff that understand the opportunity to help their constituents back home by leveraging their relationships at Federal Allies Institute.  This includes freshmen Members of Congress, such as Representative Jim Bridenstine (Ok -1) and Representative Markwayne Mullin (Ok -2) both active with the national office and Oklahoma Chapter of Federal Allies Institute.  Although mainly a two-day conference, preparation and meetings with businesses and with the Congress and their staffs continue year round as part of a comprehensive Federal Allies business development and government relations programs.

We thank Orysia D. Buchan, Sidney L. Clay, and Robyn H. Snyder all of Lockheed Martin and John F. Long of Northrop Grumman Information Technology.  And we thank all of our registrants and new members for placing their trust in the Federal Allies Institute federal contracting community.  Our strategy to enable business development opportunities via the establishment of long-term relationships initiated at our relaxed conference environment works.  Fort Belvoir’s Defense Logistic Agency’s Small Business Representative Amy Sajda, Howard County Md’s Base Business Initiative (Fort Meade area) Raj Kudchadkar and U.S. AID’s Daisy Matthews and others worked very hard on behalf of small business at this Federal Allies conference.

Washington Days Conference contained the Federal Allies Institute’s fourth recent event on the National Defense Authorization Act and Mentor Protégé and among many featured Emily Webster Murphy.  In the 112th Congress, Ms. Murphy was the primary author of the small business contracting reforms in the National Defense Authorization Act of 2013, which became Public Law 112-239 on January 2, 2013.

The conference launched the Federal Allies Institute’s affordable Corporate Ethics Certification program for small businesses.  Federal Allies Institute lauds The Washington Post and many universities that encouraged applicants to register for full and partial conference scholarships.  This is a method employed by Federal Allies Institute to encourage new entry-level participants into the world of federal contracting and federal contracting best practices.

All combined Federal Allies Institute and its Washington Days Conference offerings revolve around the three major tenants of the association: Business Development Allies, Federal Government Allies, and Back-Office Allies.

Congress came back in session during Washington Days Conference 2013, meetings in Austin, Texas were announced by FAI’s Texas Chapter Chair, and an Outstanding Service Award was presented to the Executive Director.  Plus certificates of achievement were presented to graduates of the Federal Allies Institute Mentor Protégé and Washington Representative programs held during the conference.  The Federal Allies Institute Reception at the National Press Club and Fort Myer Officers’ Club luncheon helped to announce the Corporate Ethics Certification program, 2013 Washington Days Conference Program Guide and scholarship recipients.

Government Accountability Office High Risk List

Recently 30 areas were posted on Government Accountability Office’s new High Risk List to improve performance and accountability of the federal government.  Removed from the list are Management of Interagency Contracting and IRS Business System Modernization.

Transatlantic Trade and Investment Partnership

 

And along the lines of government economic promises, one is left to imagine what former Dow Jones Barron’s Alan Abelson, would say, about new life given to the Transatlantic Trade and Investment Partnership, to create the largest free trade zone in the world and expand access to government procurement markets.

David T. Boddie

Executive Director

Federal Allies Institute


Federal Allies News April 2013

April 1, 2013

The March 27-28 Region 6 Roundtable produced by Mid America Industry Government Coalition in collaboration with Federal Allies Institute Oklahoma Chapter was an informative, successful and fully-subscribed event.  With FAI’s input the Roundtable set into motion a grassroots gathering of comments on Mentor Protégé to be followed up upon at Federal Allies Institute’s Washington Days Conference May 6-7, 2013 in Washington, D.C.  The beneficiaries of our collective comments are the U.S. Small Business Administration and other areas of the Federal government.  Regulators will accept the comments, consider and respond to them before making final decisions.

 

As the readership of Federal Allies News knows, the National Defense Authorization Act contains many small business issues, including Mentor Protégé that the Federal Allies Institute has tracked and promoted dating from the 111th Congress unto today.

 

We note the government’s move online has not produced a fundamental shift in the nature of notice-and-comment rulemaking. A decade into e-Rulemaking, and four years since the Open Government Memorandum – that promised to incorporate rulemaking within a Social Media setting – it has not achieved the gains in efficiency and democratic legitimacy that were anticipated.  It is simply not used to any great extent, but we certainly appreciate the effort and look forward to the day that e-Rulemaking may be the norm.  For now our engaged and informed members still use the traditional methods of notice-and-comment.

 

As you attend Washington Days Conference to find your next contract and to establish new relationships, should you have comments for rulemaking we encourage you to voice your comments at Washington Days in person.

 

David T. Boddie

Executive Director