Saturday, November 19, 2022

Government Contracting Compliance Requirements Are Often Not

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Have Questions Or Need Consulting Expertise Regarding Far Dfars Or Supplemental Regulations

Make NIST SP 800-171 A Framework Again

The Federal Acquisition Regulation is the regulatory compliance foundation comprised of the rules and requirements that the federal government and government contractors are obligated to comply with when pursuing, executing and performing contracts with the Federal government.

FAR 1.102 states The vision for the Federal Acquisition System is to deliver on a timely basis the best value product or service to the customer, while maintaining the publics trust and fulfilling public policy objectives. Participants in the acquisition process should work together as a team and should be empowered to make decisions within their area of responsibility.

The FAR and related agency supplements are periodically revised to incorporate new legislation or changing agency procedures. These revisions or potential revisions are typically first published in the Federal Register through a rule-making process consisting of proposed, interim and final rules. The Federal Register can be found here.

FAR clauses incorporated in contracts vary widely depending on the type of contract as well as applicability of various statutory and regulatory provisions. The FAR clauses subject to potential inclusion in contracts are contained in FAR Part 52 Solicitation Provisions and Contract Clauses.

Activities Allowed Or Unallowed

This compliance requirement establishes that each program operates for a specific purpose , and that funds provided for the program must only be used in activities that benefit that purpose. Therefore, federal assistance provided to a recipient for a specific purpose must be expended for such purpose only.

The Federal Acquisition Regulation Outlines Ethics And Compliance Standards

The Federal Acquisition Regulation is the set of rules and laws that governs the procedures that federal government entities must abide by when purchasing goods and services from contractors. The FAR component that pertains to ethics and compliance is Subpart 3.10 Contractor Code of Business Ethics and Conduct. In particular, this subsection directs the use of FAR clause 52.203-13 and FR.203-14 .

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Experience & Recent Representations

Our lawyers excel at guiding clients through all stages of litigation, and we specialize in complex, high-stakes disputes involving matters of first impression. The litigation risk experienced by contractors and subcontractors performing under federal, state and local contracts and grants is unique, and requires litigators with specialized knowledge. Our team of lawyers has a deep understanding of the vast array of statutes, regulations, case law and other requirements that continue to generate a growing number of disputes.

We have significant experience practicing before the Court of Appeals for the Federal Circuit, Court of Federal Claims, boards of contract appeals and other state and federal courts throughout the United States. In addition to these traditional venues for government contracts litigation, our groups members routinely guide clients through dispute proceedings in non-U.S. tribunals, international arbitrations and specialized quasi-judicial regulatory hearings.

Our deep bench of litigators has experience with virtually all types of cases involving government contractors. We routinely handle appeals of government and contractor claims, and specialize in complex matters involving key areas such as:

  • The U.S. governments Cost Accounting Standards and Federal Acquisition Regulation cost principles
  • Construction, engineering and contingency contracts
  • Prime-sub disputes

Recent representations include:

Appendix E Federal Contracts For Building Services In The Province Of Ontario

DOD Contracts &  Federal Government Contract Solutions
  • Federal contracting authorities are required to observe the intent and follow the provisions of the Ontario legislation concerning the protection of jobs and the level of benefits of workers who work primarily at one specific site to provide building cleaning, food and security services.
  • Upon request by the building owner or manager, an employer providing the specified services shall provide the following information as set out in Ontario Regulation138/96:
  • the name, address and telephone number of each employee
  • the classification, wage rate, benefits, average weekly hours and initial hire date of each employee
  • the number of weeks worked in the preceding 26 weeks or a longer period if services were temporarily discounted or an employee was on pregnancy or parental leave and
  • a statement indicating which employees were not primarily employed at the premises during the preceding 13 weeks or during and employees most recent 13weeks of active employment.
  • Building owners or managers are required to give this information, excluding the names, addresses and telephone numbers of employees, to prospective bidders upon request.
  • Building owners or managers must provide the full list, including names, addresses and telephone numbers, upon the request of the successful bidder.
  • Such information shall be used only for the purposes of complying with the Employment Standards Act and shall not be disclosed except as authorized by the Act.
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    Recent Ontario Case Law Reaffirm The Importance Of Compliance With Notice Requirements

    In the 2021 Ontario Superior Court of Justice case Elite Construction Inc. v Canada, the contractor, Elite Construction Inc., did not strictly comply with the contractual notice provisions for requests for extensions of time. Specifically, the multiple notices provided by the contractor contained various deficiencies. For example, one of the notices failed to include the required written consent of the bonding corporation and another was submitted after the timeframe stipulated in the construction contract. The Court pointed to a long list of Canadian case law reiterating the importance of compliance with notice provisions and ultimately, did not accept Elite Construction Inc.s various attempts to deliver notice, as they did not strictly comply with the provisions agreed to in the contract. Similarly, in the 2021 Ontario Divisional Court case Tower Restoration v Attorney General of Canada, the Court found that the contractor was barred from bringing the claim against the Government of Canada because they failed to deliver notice to dispute a final decision in the time frame established by the dispute resolution provisions in the contract.

    Government Contracting And Certification

    ISO certifications are not synonymous with business qualifications but as a Government Contractor, the Federal government often looks for credentials that reduce their risk when selecting vendors by providing a standard to measure the contractors ability to meet their requirements through a focus on quality assurance and control.

    Ultimately, if you want to do business with the government, your organization will need to evaluate the benefits of achieving a certification as there are often implicit or explicit requirements that the government expects vendors to adhere to when theyre looking to buy goods or services.

    The U.S. Federal government spends hundreds of billions of dollars on contracts with private companies and many of these purchases are made under governmentwide acquisition contracts, Indefinite delivery, indefinite quantity contracts, or other large contract vehicles.

    Agencies appear to be moving towards points-based acquisitions in which a bidder is evaluated or scored on different categories of importance such as past performance, quality, and capabilities.

    Its clear that the governments emphasis on increased quality and reduced risk is growing. To position your company for success on upcoming IDIQs, GWACs, or RFPs, consider pursuing ISO certifications and CMMI appraisals to help establish your organizations commitment to meeting requirements.Certifications for Government Contractors in 2019 from Integration Technologies Group Inc

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    As A Reinsurer For The Federal Employees Group Life Insurance Program Are We A Federal Government Subcontractor

    Yes. Reinsurance entities that have subcontracted with the prime contractor to FEGLI are considered to be government subcontractors within the meaning of the regulations implementing Executive Order 11246, as amended, the Vietnam Era Veterans Readjustment Assistance Act of 1974 , as amended, 38 U.S.C. 4212, and Section 503 of the Rehabilitation Act of 1973 , as amended.

    The implementing regulations for Executive Order 11246 at 41 CFR 60-1.3, for VEVRAA at 41 CFR 60-300.2 and for Section 503 at 41 CFR 60-741.2, consistently define a government contract as any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services. The term nonpersonal services includes, but is not limited to, the following services: utilities, construction, transportation, research, insurance, and fund depository. This definition thus explicitly includes agreements for insurance, which would cover FEGLI contracts.

    The same regulations generally define a government subcontract as any agreement or arrangement between a contractor and any person for the purchase, sale or use of personal property or nonpersonal services which, in whole or in part, is necessary to the performance of any one or more contracts or under which any portion of the contractors obligation under any one or more contracts is performed, undertaken or assumed. This definition includes any reinsurance agreement related to FEGLI.

    Support Department Of Labor Investigations

    Avoid This to Avoid a £1,000 Fine!

    Before starting an audit, we help contractors identify the internal and external resources necessary. These resources will work with the auditors and respond to information requests. Audits can last anywhere from several weeks to months , which can create significant strain on contractor resources.

    During the audit, we address contentious issues by first gathering the facts. Understanding our clients circumstances allows us to help manage the dialogue and successfully resolve difficult issues. In this regard, we:

    • Establish a disciplined audit liaison and audit request management protocol
    • Provide full- or part-time surge support during the audit
    • Provide ad-hoc support to client audit response teams and facilitate communications with government auditors
    • Identify and resolve audit issues in real time
    • Coach client personnel working with the government audit team
    • Draft communications to investigators

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    Reporting Requirements For Government Departments And Agencies

    1.1 Departments and agencies are to submit an annual report on the total number and dollar amounts of construction and service contracts , including amendments awarded within a departments own departmental authorities.

    1.2 Data on contracting activities is to be broken down by Basic contracting limits and Exceptional contracting limits and further organized into competitive, non-competitive and amendments. Information on the following items is to be excluded from the report:

  • real property leases
  • Criminal Code The Financial Administration Act And The Trade Agreements

    12.5.1 The Criminal Code of Canada, Section 748, Sub-Section 3 prohibits anyone who has been convicted of an offence under:

    • Section 121, Frauds upon the Government
    • Section 124, Selling or Purchasing Office or
    • Section 418, Selling Defective Stores to Her Majesty,

    from holding public office, contracting with the government or receiving a benefit from a government contract, unless the Governor in Council has restored these capabilities to the individual or the individual has received a pardon.

    12.5.2 As stated in article 4.2, Related requirements, contracts are subject to the screening requirements of the Security Policy of the Government of Canada. The contracting authority is responsible for ensuring compliance. Contract administrators, therefore, must ensure that any necessary security clearances and/or reliability checks are carried out so that contractors and their employees, where applicable, are acceptable under the policy .

    12.5.3 As required by the Prime Ministers Conflict of Interest and Post Employment Code for Public Office Holders, September 1985, contracting authorities are to ensure that all requirements are met. These include inserting clauses, approved by Treasury Board, into every contract entered into by the Crown. They are contained in Appendix G.

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    What Types Of Accommodation Request Records Are Federal Contractors Required To Maintain

    All covered construction contractors are required to maintain records of accommodation requests related to pregnancy, childbirth, or related medical conditions and religious practices and observances. In addition, direct federal construction contractors are required to maintain records of accommodation requests related to disabilities, including requests from disabled veterans.

    Specifically, contractors should maintain documentation on requests made, any relevant meetings and discussions held, and final dispositions. OFCCP regulations require contractors to grant reasonable accommodation requests unless they can demonstrate that doing so would impose an “undue hardship” on the operation of its business.

    Government Contracting Rules You Need To Know

    Government Contracting: A Government Subcontractors Guide to ...

    Government contracting rules, regulations and procedures dictate how you do business with the government. The two most important laws you need to be aware of are FAR and FASA . However, there are numerous other laws that have an impact on government contracting that you should also keep in mind.

    You’ve heard it said many times, “Government contracting seems hardso many rules and regulations. And, if you don’t follow them, the government is just waiting to take you down!”

    Actually, nothing could be further from the truth. The government not only actively seeks out small business participation when it buys products and services, but it also goes to great lengths and spends lots of money in outreach programs to find good, qualified small businesses to be its suppliers. For example, it will provide information that will help you bid with minimal risk. Just for the asking, you can find out how much the government bought the last 5 to 10 times, who they bought from, and how much they paid. Try asking for that kind of information from your commercial customers and see what they say!

    However, although the approach to the commercial and government market is similar, the procedures and rules of doing business in the government arena are differentand if these differences are not understood, it is here that problems can occur.

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    *a Note About Place Of Performance

    Base wages are calculated on the idea that a workers pay should reflect the cost of living in that area. So changing locations can complicate things. In some situations, there are even invisible borders within cities that will change wage rates on top of county and state lines.

    Taking that one step further, if your company adds a new office, a new warehouse or an employee starts working from home that changes their location and thus, their base wage could change as well.

    Make sure you stay on top of changes as DOL auditors tend to look closely at base wages.

    Our Business Operates As A Fund Depository And An Issuing And Paying Agent For Us Saving Bonds And Savings Notes Therefore Are We Required To Comply With Affirmative Action Program Obligations Under Executive Order 11246 Vevraa And Section 503

    Executive Order 11246, as amended implementing regulations at 41 CFR 60-1.40 and 41 CFR 60-2.1 state, in relevant part, that any nonconstruction contractor that serves as a depository of government funds in any amount or a financial institution which is an issuing and paying agent for U.S. saving bonds and saving notes in any amount must develop an affirmative action program.

    Under Section 503 of the Rehabilitation Act of 1973, as amended , a government contractor with 50 or more employees and a Government contract of $50,000 or more must develop a Section 503 AAP. 41 CFR 60-741.40. The Section 503 regulations define a government contract as “any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services.” 41 CFR 60-741.2. The term “nonpersonal services” as used in this section includes fund depository. 41 CFR 60-741.2. Thus, the agreement to serve as a federal funds depository is a “government contract.”

    Under Section 503, however, all government contracts must meet the dollar threshold amount of $50,000 for coverage. Therefore, if you serve as a depository for federal funds of $50,000 or more, or have an agreement valued at $50,000 or more to be an issuing and paying agent for savings bonds and notes, you would be obligated to develop and maintain a Section 503 AAP.

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    Bid Solicitation From Suppliers Lists

    7.1 Wherever practicable and consistent with sound procurement management, contracting authorities will first solicit bids from within the Territory.

    7.2 Where the Crown intends to solicit bids for government contracts in the Territory, the contracting authority will make all possible attempts to award contracts to qualified Inuit firms.

    7.3 Where the Crown intends to solicit bids for government contracts in the Territory, the contracting authority shall take all reasonable measures to determine if there are Inuit firms qualified to perform government contracts.

    7.4 Where it is determined that there is a single firm within the Territory qualified to perform a government contract, the contracting authority will solicit that firm to submit a bid for the government contract. The contract may be awarded upon negotiation of acceptable terms and conditions.

    7.5 Where the Crown intends to solicit bids from more than one qualified firm within the Territory, the contracting authority shall take all reasonable measures to determine if there are Inuit firms qualified to perform the government contract, and shall solicit bids from those Inuit firms.

    7.6 Where a contract has been awarded it is the responsibility of the contracting authority to ensure that the contract document contains appropriate terms and conditions to make certain that sub-contractors to the contractor are also subject to the intent and the specific provisions of the contract.

    When Does Executive Order 11246 Apply To Federal Construction Contractors

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    Executive Order 11246 applies to federal construction contractors that meet one or more of the following contract thresholds:

  • A direct federal construction contract or subcontract of over $10,000.
  • A federally assisted construction contract or subcontract of over $10,000.
  • Two or more federal construction contracts or subcontracts of less than $10,000 that, when added together, total more than $10,000 within any 12-month period or can reasonably be expected to total more than $10,000 during that time.
  • A construction contract or subcontract of over $10,000 with a federal nonconstruction contractor or subcontractor, if the construction contract/subcontract is necessary in whole or in part to the performance of the federal nonconstruction contract or subcontract or if the subcontractor performs, undertakes or assumes any portion of the contractors obligation.
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    Basics Of Federal Contracting

    The federal government may award research and development funding in the form of grants, cooperative agreements, contracts, or other transaction agreements. Unlike grants and cooperative agreements, which are assistance mechanisms, a federal contract is a procurement mechanism. This means that the principal purpose of a federal contract is to purchase property or services for the direct benefit or use of the US Government.

    Federal contracts are governed by a strict set of terms and conditions, including clauses from the Federal Acquisition Regulation . They usually require frequent reporting and a high level of responsibility to the Government. A failure to perform the project in strict compliance with the contract and provide the required deliverables on time and on budget could result in criminal and/or civil penalties, as well as potential financial consequences.

    Other Transaction Agreements are not subject to the administrative requirements of grants nor the federal regulations governing procurement. The Federal Contracts Services Team is responsible for processing any OTAs or subcontracts under OTAs, or proposals that may result in OTAs, both when the University is the prime recipient or a subcontractor.

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