Weekly Update for Government Contractors and Commercial Enterprises – May 2022 #3 | PilieroMazza SARL



GSA Seeks Comments on Potential Changes to Polaris Joint Ventures, Cy AlbaMay 13, 2022
On May 13, 2022, the General Services Administration (GSA) released draft of proposed changes to the Polaris Whole-of-Government Acquisition Agreement (GWAC). Specifically, the agency is proposing to revise Section L. of the Request for Proposals (RFP), dealing with joint ventures, after reviewing industry comments and speaking with the Small Business Administration (SBA ). The GSA pointed out that the wording is in draft form and is subject to change. Most importantly, members of the small business information technology community are encouraged to provide feedback to [email protected] by May 23, 2022. Read more here.

Federal Circuit Clarifies Scope of Incorporation by Reference, Kevin BarnettMay 10, 2022
A recent Federal Circuit ruling provides helpful guidelines for contractors who wish to incorporate their standard trade terms into their government contracts. The federal government often claims that it wants to make its contracting process more like the commercial market, but the government does not make it easy for commercial companies to do business with it. CSI Aviation, Inc. v. Department of Homeland Security highlights the potential confusion surrounding the terms and conditions governing government contracts for commercial products or services. There, the contractor was successful after several levels of appeals, with the Federal Circuit ruling that the contractor’s cancellation policy was incorporated by reference into its contract. To minimize disputes over applicable terms, federal contractors should ensure that their standard trade terms are incorporated by reference unambiguously. Read more here.

SBA Ends Class Exemption to Non-Manufacturer Rule for X-Ray Equipment
The Small Business Administration (SBA) is ending the class exemption from the Non-Manufacturer Rule (NMR) for the following products, under NAICS code 334517: manufacture of irradiation devices, manufacture of computed axial tomography scanners (TC/CAT); manufacture of CT/CAT scanners (computerized axial tomography); manufacture of fluoroscopes; manufacture of fluoroscopic x-ray apparatus and tubes; X-ray generators, manufacture; manufacture of irradiation equipment; manufacture of X-ray generators; and the manufacture of X-ray irradiation equipment, because the agency learned of a small company manufacturing the identified products. Small businesses will no longer be permitted to supply any manufacturer’s product regardless of size on identified items unless a federal procurement officer obtains an individual NMR waiver. The termination of the class exemption takes effect immediately. Read more here.

SBA adjusts civil monetary penalties for inflation
The Small Business Administration (SBA) issued a final rule that amended its regulations to adjust the amount of specified civil monetary penalties for inflation. This rule went into effect on May 11, 2022. Learn more here.

President Biden is already willing to increase recent demand for defense spending
NextGov reported that a Defense Department official acknowledged that inflation could cause the Biden administration to ask for more money just six weeks after the president sent his $773 billion spending request to Congress for fiscal year 2023. Learn more here.

GAO recommends steps to reduce $1.8 billion maintenance backlog for Navy surface ships
Reducing the Navy’s nearly $1.8 billion backlog for surface ship maintenance could help fleets last longer and improve Navy operations, the Government Accountability Office said ( GAO). The GAO made recommendations to improve the Navy’s maintenance process. One recommendation was to include backlog reduction in performance targets. Read more here.

Upcoming Presentations on Government Contracts

EVENT: Basic Requirements for Public Procurement, May 23, Peter Ford. Read more here.

EVENT: Peeps for Keeps: Finding and Managing Talent in a Competitive Labor Market, May 24, Nichole Atallah. Read more here.

WEBINAR: Supply Chain Pain: How Government Contractors Can Get Relief for Supply Chain Issues, May 24, Kevin Barnett. Read more here.

WEBINAR: Uncovering the Secrets of Debriefings, Government Assessment of Proposals and Protests, June 1, Peter Ford and Meghan Lemon. Read more here.


DOL recovers $799,000 in back wages after investigation finds incorrect wages and benefits for electricians paid by New Jersey contractor
Eleven electricians on a federally funded construction project in Paterson, NJ, have recovered $799,000 in back wages from Deen Electrical Contractors Inc. The Jersey City, NJ electrical contractor violated Davis Bacon Law by paying electrician wages and benefits at a lower rate intended for blue-collar workers, the Department of Labor (DOL) said. Read more here.

DOL recovers $624,000 in back wages for 92 Charleston restaurant workers
A Department of Labor (DOL) investigation found that 167 Raw King Street LLC in Charleston, South Carolina, required tip employees at its restaurant to share tips, invalidating the employer’s claim to a tip credit. This practice led to violations of federal minimum wage and overtime rules because the company did not pay tipped employees the difference between their direct pay and minimum wage and did not pay them the rate. appropriate overtime. DOL recovered $624,017 in back wages for 92 workers. Read more here.

Technology services company pays $319,000 in overtime to 57 employees in New York
Pictometry International Corp., doing business as EagleView Technologies Inc., paid $319,141 in back wages to 57 employees after a Department of Labor (DOL) investigation found the company filed mistakenly 57 employees at its Rochester, NY facility, as being exempt from overtime pay. The company, which provides technology services such as aerial imagery and data analysis, also did not keep time records for these workers and did not include a non-discretionary annual bonus in the calculation of their overtime pay rates, DOL said. Read more here.

Florida special needs pediatric caregiver to pay 160 workers $303,000 in overtime
A Department of Labor (DOL) investigation found that Angels on Earth PPEC Inc., a pediatric special needs caregiver in Florida, failed to pay workers one and a half times their normal overtime pay rate and did not keep records of their working hours. The employer will pay $303,367 in back wages for 160 workers for these violations of the Fair Labor Standards Act. Read more here.

Upcoming Labor and Employment Presentations

EVENT: Peeps for Keeps: Finding and Managing Talent in a Competitive Labor Market, May 24, Nichole Atallah. Read more here.


Construction company agrees to pay $2.8 million to resolve small business subcontracting fraud allegations
Hensel Phelps Construction Company, a large construction company headquartered in Greeley, CO, has agreed to pay $2.8 million to resolve allegations that it mishandled a federal subcontract. The contract, to supply kitchen and catering equipment for the Armed Forces Retirement Home, was designated for a business owned and operated by a disabled veteran. According to the Department of Justice (DOJ), Hensel Phelps admitted that after fully negotiating the subcontract with a company that was not a Disabled Veteran-Owned Small Business (SDVOSB), he entered into a subcontract with a SDVOSB instead of performing the subcontract with the first company. The subcontract provided for the same work and used the same terms and prices that Hensel Phelps had agreed to with the first firm, but included an additional 1.5% charge to the SDVOSB. Hensel Phelps admitted that he should have known that the SDVOSB was only an intermediary for the first company, which provided all the work on the subcontract, and that the role of the SDVOSB was limited to providing its status of SDVOSB and make it appear as an SDVOSB was performing the job. Read more here.

Virginia IT Company agrees to pay $800,000 to resolve False Claims Act allegations
An information technology company in Arlington, Va., has agreed to pay $800,000 to resolve alleged False Claims Act violations. Subsystems Technologies Inc. (STI) admitted that its employees purchased electronics and luxury items for personal use by themselves and government employees and then improperly charged those items to government contracts held by STI for services at Picatinny Arsenal in Morris County, NJ, the Justice Department announced. Read more here.

Court allows limited discovery in bid protest alleging misrepresentation by beneficiary
In a post-award protest, the U.S. Federal Claims Court ruled that plaintiff American Roll-on Roll-off Carrier Group, Inc. (ARC) should be allowed to seek information upon discovery of an alleged misrepresentation by the recipient, HomeSafe Alliance, LLC. ARC says HomeSafe materially compromised the security level of its information technology system before winning an $18 billion relocation services contract from the Department of Defense, US Transportation Command. Finding that ARC is entitled to limited disclosure related to fulfilling its obligation to prove that HomeSafe’s representation was untrue, the court allowed ARC to serve Home Safe with two examinations and a request for admission. Read more here.


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