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Whitcomb, Selinsky, PC Staff

Whitcomb, Selinsky, PC Staff
Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.
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Owners of Las Uvas Valley Dairies Sued by Liquidating Trustee

Posted by Whitcomb, Selinsky, PC Staff on Feb 18, 2021 3:05:10 PM

Robert Marcus, the liquidating trustee of the Las Uvas Valley Dairies sued Dean L. Horton and Frances H. Horton in the U.S. Bankruptcy Court of New Mexico. Mr. Marcus sought declaration that the main assets in the bankruptcy estate at issue were held in constructive trust for the estate he represents. Dean and Frances Horton applied for motion for judgment on the pleadings requesting the proceedings be dismissed for failure to state a claim. Mr. Marcus asserted he had a valid claim for recognition of a constructive trust.

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GAO: VA Needs Better Sexual Harassment Protection for its Employees

Posted by Whitcomb, Selinsky, PC Staff on Sep 25, 2020 10:57:40 AM

A report released by the Government Accountability Office regarding the testimony before the Subcommittee on Oversight and Investigations and the Women Veterans Task Force, Committee on Veterans’ Affairs before the House of Representatives was released in July 2020. The report evaluated the extent to which VA policies prevent and address sexual harassment of VA employees; how data informs VA concerning sexual harassment of its employees; and the extent to which the VA provides training to its employees to address sexual harassment. It includes a survey conducted by the Merit Systems Protection Board in 2016, which indicated approximately 22 percent of VA employees and 14 percent of federal employees experience some form of sexual harassment in the workplace.

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Tags: Civil Rights Law

The Value of the Whistleblower Program

Posted by Whitcomb, Selinsky, PC Staff on May 14, 2020 4:26:00 PM

On September 23, 2019, Senators Chuck Grassley, Tammy Baldwin, Joni Ernst, and Dick Durbin introduced the Whistleblower Programs Improvement Act (WPIA), which protects financial whistleblowers who report internally from retaliation. This law mirrors the Whistleblower Protection Reform Act of 2019, which passed in the House of Representatives last spring. It is aimed at clarifying that the Dodd-Frank Act’s anti-retaliation provision should apply equally to employees who report alleged misconduct directly to the U.S. Securities and Exchange Commission (SEC) and to employees who only report alleged misconduct internally to their employers.

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Tags: government relations

COVID-19 Causes Delays and Suspensions of Government Contracts

Posted by Whitcomb, Selinsky, PC Staff on Apr 23, 2020 2:45:40 AM

The coronavirus (COVID-19) outbreak has caused business disruption across the globe and is having a direct impact on government contractors. The federal government and the medical community’s efforts to contain COVID-19 requires a broad-based commitment to social distancing and self-quarantines, which directly impacts contract completion times and employee productivity. Outside of vital projects related to public health and safety or national security, contract specialists should expect that over the next few weeks, many government contracts will be formally or informally suspended for the duration of the COVID-19 quarantine period. Below are some important factors for government contractors to consider in order to protect their rights during this unprecedented time.

Force Majeure

Government contracts contain Federal Acquisition Regulation (FAR) clauses that provide grounds for entitlement to excusable delays, and are frequently referred to as force majeure clauses. A force majeure event refers to the occurrence of an event which is beyond the reasonable control of a party and which prevents that party from performing its obligations under a contract. It’s fairly certain that a pandemic such as COVID-19 would qualify as force majeure under government contracts.

The test for force majeure usually requires the satisfaction of three distinct criteria:

1) The event must be beyond the reasonable control of the affected party;
2) the affected party’s ability to perform its obligations under the contract must have been prevented,impeded or hindered by the event;
3) the affected party must have taken all reasonable steps to avoid or mitigate the event or its;consequences.

Applicable Regulations

Both Federal Acquisition Regulation FAR 52.249-14 Excusable Delays and FAR 52.212-4 Contract Terms and Conditions – Commercial Items explicitly provide that contractors shall not be considered in default as a result of delayed performance that arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather.

At the very least, all government contractors should be entitled to a no-cost time extension to cover the delays resulting from the coronavirus epidemic. While such a time extension will not compensate contractors for damages incurred as a result of the delay, it does offer protection against termination for default or the assessment of liquidated damages.

Most contractors will be permitted to delay performance, but they still need to consider the costs that they incur as a result of the contracting officer’s suspension -of-work order. FAR 52.242-14 Suspension of Work states, “If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer in the administration of this contract . . . an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contract modified in writing accordingly.”

There are three key points to address here:

1) First, the suspension must be ordered by the contracting officer. If you receive a suspension order from anyone else (e.g., a Contracting Officer’s Representative (COR), a Contracting Officer’s TechnicalRepresentative (COTR), or a contract specialist), request direction from the contracting officer in writing;

2) Second, the suspension of work must be for an “unreasonable period of time.” What constitutes an“unreasonable period of time” varies based on the nature of the contract and the duration of anyparticular suspension; and

3) Third, the clause limits contractors to damages “necessarily” caused by the unreasonable suspension.Again, the kind of damages that are “necessarily” caused by a suspension will vary based on the natureofa particular contract. Some examples of recoverable costs include: demobilization and remobilizationcosts, costs to maintain site security or an on-site trailer, and overhead costs that are reasonable,allowable and allocable to the delayed contract (see generally FAR Part 31).

Final Thoughts

With the exception of government contractors who are considered essential for national security reasons under COVID-19 stay-at-home orders, COVID-19 will cause unprecedented business disruption for government contractors. Government contractors need to be proactive in reviewing their contracts and understanding what actions they must take to protect their rights under delayed contracts.

When a contractor attempts to assert the existence of an epidemic or pandemic as grounds for excusable delay, to have a chance of succeeding, the contractor must be able to present evidence of the existence of an epidemic, and that the epidemic was the cause of the delay that it experienced. To do this, the contractor must be able to identify when the impacts occurred, how long they lasted, and must explain to the contracting officer how the epidemic directly affected the company’s critical path of performance of the work. Finally, a contractor must also establish that it made reasonable efforts to mitigate the adverse effects of the epidemic on its performance, and explain how those efforts were ineffective.
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Tags: Government Contracts

Worldwide Language Resources Awarded Reimbursement From the Army

Posted by Whitcomb, Selinsky, PC Staff on Apr 22, 2020 1:42:03 AM

WorldWide Language Resources, Inc. (WWLR) of North Carolina asked the Department of the Army to reimburse it for the reasonable costs of filing and pursuing its protest of the agency’s award of a task order to Valiant Government Services, LLC. WWLR’s contention was that the agency failed to take prompt corrective action to resolve meritorious grounds for a protest.

Background

In 2017, the Army issued a request for task order proposals (RTOP) under the Department of Defense’s Language Interpretation and Translation Enterprise II Indefinite Delivery Indefinite Quantity (IDIQ) contract (DLITE II). The RTOP was to acquire linguist support for the Combined Joint Task Force-Operation Inherent Resolve, the Department of State Office of Special Cooperation-Iraq, and the U.S. Army Central Command.

In July 2019, the Army notified WWLR that it had awarded the task order to a different bidder, Valiant. WWLR timely filed a protest challenging the agency’s evaluation of Valiant’s cost and technical proposals, its failure to credit WWLR’s proposals with additional strengths, its discussions with WWLR, and its best-value tradeoff determination.

A month later, WWLR filed a supplemental protest challenging the agency’s cost realism evaluation considering a reduction in Valiant’s proposed cost. WWLR later filed comments on a report the agency made in response to WWLR’s protest and submitted a second supplemental protest. It challenged aspects of the Army’s cost-realism evaluation and argued the agency unreasonably and disparately evaluated Valiant’s proposal and the Army’s best-value tradeoff was flawed due to these errors.

On September 30, 2019, WWLR filed its third and final supplemental protest. This time it challenged additional elements of the cost-realism evaluation, discussions with offerors, and the “cross walk” process used by the Army to assess the impact of Valiant’s cost elements on its technical approach.

On October 4, 2019, the Army announced it would take corrective action. It stated it would reevaluate proposals and make a new source selection decision. The agency reserved the right to reopen discussions and solicit revised proposals.

GAO Opinion

The GAO noted that the Army did not dispute three of the protest grounds, and that it took corrective action based on the errors that it identified. WWLR’S protests included arguments that the agency failed to conduct an adequate cost-realism evaluation, conducted misleading discussions with the protester, unreasonably and unequally evaluated the awardee’s proposal, and that the agency’s best-value determination was flawed.

The Army argued that with the exception of these arguments, WWLR’s protest grounds were not meritorious and readily severable from these grounds. The GAO, however, noted that protests are meritorious “where a reasonable agency inquiry into the protest allegations would have shown facts disclosing the absence of a defensible legal position.”

However, the GAO concluded the Army did not take corrective action based on the errors that it identified. The GAO found that the Army did not take prompt corrective action. GAO considers prompt corrective action to be if it is taken before the due date for the agency report responding to the protest. The due date for the agency report was September 18, 2019, but the agency didn’t take corrective action until nearly a month later on October 4, 2019.

The agency argued that the remaining protest issues are severable because they are based on different facts and legal theories. The GAO disagreed. It found that the protester’s arguments shared a common set of facts and legal theory, and that these causes of action are not severable from each other. It noted the protests were grounded in errors made by the Army to identify and account for Valiant’s low costs in its evaluation.

WWLR asserted that these errors impacted the evaluation of Valiant’s management and staffing plan, and that the agency should have taken Valiant’s low employee-compensation rates into account when it evaluated the strengths in Valiant’s proposal. One example is WWLR’s allegation that the Army conducted a “cross walk” analysis of the “impact of Valiant’s pricing …on its technical approach.” WWLR argued this inadequate evaluation allowed Valiant to “reap the reward of an ‘outstanding’ technical rating and multiple other strengths, without any consideration whether its [Valiant’s] cost approach would allow it to achieve those lofty promises.”

The GAO said that when the protester’s challenges did not directly reference the agency’s cost-realism evaluation, it noted that they were intertwined with WWLR’s successful protest grounds. The GAO also noted that the agency conceded WWLR’s challenge to the evaluation of Valiant’s staffing plan was “that clearly meritorious.” It viewed this successful challenge as sharing a “common factual basis with the protester’s other technical evaluation challenges; both the meritorious and non-meritorious issues are intertwined and interrelated with the agency’s flawed evaluation of Valiant’s proposal.” Accordingly, the GAO ruled that the technical evaluation issues were not severable from WWLR’s other claims.

Conclusion

The GAO sustained WWLR’s protest. The GAO recommended that the Army reimburse WWLR for its reasonable costs of filing and pursuing its protest challenging the agency’s award decision. For more information on filing a protest before the Government Accountability Office, please contact Whitcomb, Selinsky PC at 866-476-4558. Your first consultation with one of our attorneys is always free.
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Tags: Bid Protest

Booz Allen Hamilton Loses Post-Award Protest of VA Best-Value Decision

Posted by Whitcomb, Selinsky, PC Staff on Apr 16, 2020 9:49:20 AM

 

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Tags: SBA Bid protest

Base Selection for the U.S. Space Command is Halted

Posted by Whitcomb, Selinsky, PC Staff on Mar 17, 2020 12:16:12 PM

On March 4, 2020, Secretary of the Air Force Barbara Barrett announced that the service will restart the base selection process for the U.S. Space Command, tossing out a list of finalists that heavily favored Colorado.

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Tags: Space Law

BP Contests Walmart’s Economic Loss Claims

Posted by Whitcomb, Selinsky, PC Staff on Mar 11, 2020 12:11:29 AM

The effects of the explosion from the Deepwater Horizon in the Gulf of Mexico on April 20, 2010 are still present today. The explosion killed 11 people and leaked 3.19 million barrels of oil into the Gulf of Mexico on the ocean floor 42 miles off the coast of Louisiana. It is likely that much of the oil spilled is still present in the Gulf today. As a result of the explosion and spill, a settlement agreement was made between BP and class action representatives that claimed damages from the disaster. The agreement included provisions for business economic-loss (BEL) claims for those companies that incurred damages resulting from the explosion and spill.

BP challenged (BEL) awards made to Wal-Mart stores, East, L.P. Its challenge was based on Walmart changing its accounting system one month after the explosion on the Deepwater Horizon. The accounting change affected the amount of Walmart’s BEL claims, which are based upon the difference between expenses before and after the disaster. BP contended that the change resulted in “artificially inflated award amounts.”

In June 2015, Walmart submitted BEL claims for each of its nine stores located along the Gulf Coast. BP questioned the validity of five of the claims. The United States Court of Appeals consolidated these claims in an appeal filed by BP. To facilitate reconciliation of the differences between the accounting systems, Walmart submitted supplemental documentation to the Claims Administrator for the claims in April 2017. After reviewing Walmart’s claims with PWC accountants, the Claims Administrator issued awards to Walmart in 2018 of over $17.4 million.

BP Appeal

BP appealed the Court Supervised Settlement Program (“CSSP”) awards. It argued the change in Walmart’s accounting system “made its profit and loss data for the pre-May 2010 period inconsistent with the subsequent period.” BP argued to the Appeal Panels that Walmart artificially inflated its awards by changing its accounting system. The change in accounting systems caused the pre-disaster period to appear more profitable compared to the later period following the Deepwater Horizon disaster.

U.S. Court of Appeals Decision

The U.S. Court of Appeals was tasked with determining whether it should reverse the district court’s decision not to review a final award under the CSSP settlement program. The Court applied the abuse-of-discretion standard to the district court’s refusal to review the final award. In applying the standard, the Appeals Court considered whether the final award “actually contradicted or misapplied the Settlement Agreement or had the clear potential to contradict or misapply the Settlement agreement.”

The Appeals Court noted the district court would not abuse its discretion if it denied a request for review that “involves no pressing question of how the Settlement Agreement should be interpreted and implemented,” but instead raised questions as to whether the discretionary administrative decision is correct or not.

Misapplication of Settlement Agreement

BP argued that the case BP Expl. & Prod., Inc. v. Claimant ID 100094497, 910 F.3d 797 (5th Cir. 2018) demonstrated that a claimant that changes its accounting system during the relevant time period, as Walmart did, must provide information on how each expense was categorized before and after the change. Walmart responded by providing supplemental information to the Claims Administrator, which the court concluded was necessary for the change in its accounting system to be factored into the calculations. The court also noted that the Claim Administrator’s calculation notes indicate the accounting systems were reconciled. The U.S. Court of Appeals held BP did not show that the Claims Administrator or any Appeal Panel misapplied the Settlement Agreement, nor was there potential for any contradiction or misapplication.

BP’s Request for Walmart Expenses

BP argued that Walmart needed to provide additional information describing how each expense in Walmart’s pre-May 2010 accounting systems was classified in its post-May 2010 system. The U.S. Court of Appeals held it was “unconvinced by BP’S pleas for more information.” It stated it was presiding over an exercise of judgment by the district court, Appeal Panels and Claims Administrator whether there was enough evidence under the Settlement Agreement to make an award. The Court of Appeals found that BP’s challenge to the Appeal Panels’ decisions raised issues regarding the “correctness of a discretionary administrative decision in the facts of a single claimant’s case.” The U.S. Court of Appeals concluded that the district court’s denial of a request for discretionary review was not an abuse of discretion.

Conclusion

The U.S. Court of Appeals held that the district court’s denial of a request for discretionary review was not an abuse of discretion. This case demonstrates the lengthy amount of time it takes for legal issues to be resolved following a disaster. The events of the Deepwater Horizon disaster occurred nearly ten years ago, and the question of Walmart’s economic loss claims were not resolved until January 14, 2020. Environmental restoration will take even longer. If your company has sustained a casualty loss resulting from a disaster, or if you would like more information on this case, please contact Whitcomb Selinsky PC at 303-534-1958.
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Tags: Trial Lawyer

OSHA and MSHA Raise Penalty Fees

Posted by Whitcomb, Selinsky, PC Staff on Mar 10, 2020 11:58:06 PM

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act. It was passed to improve the effectiveness of civil penalties and to maintain their deterrent effect. The Act requires agencies to adjust their level of monetary penalties and to make subsequent annual adjustments for inflation no later than January 15th of each year.

The Labor Department issued an annual inflation adjustment of civil penalties in 2019. It calculates the annual adjustment based on the Consumer Price Index for all Urban Consumers (CPI-U). The most recent adjustment is based on the percent change between the October 2019 and October 2018 CPI-U.

The Federal Civil Penalties Inflation Adjustment Act provides a cost-of-living formula for the adjustment of civil penalties. The Act increases penalty levels to those assessed after the effective date of the increase. The final rule became effective January 15, 2020, increasing penalty fees. The changes to the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA) penalties take effect immediately and apply to penalties assessed after January 15, 2020.

Penalty Assessment Formula

Penalties for health and safety violations are assessed by MSHA’s Office of Assessments’ formula that considers five factors: the history of previous violations, size of the business, negligence of the operator, gravity of the violation, and the operator’s good faith attempt to correct the violation promptly (if any). The inspector determines these findings from inspections, MSHA records, and information supplied by the operator. The effect of the penalty on the operator’s ability to remain in business is also considered when an operator submits information to the inspector.

OSHA Penalties

OSHA raised its civil penalties by about 1.8% at the beginning of this year. Some of the changes to the OSHA penalties include the following: willful violations where an employer knowingly failed to comply with OSH standards or demonstrated plain indifference for employee safety now has an increased penalty from $49,472 to 49,639 and the maximum penalty increases from $132,598 to $134,937. Violations that are repeated or substantially similar to previous violations have penalties that increase from $132,598 to $134,937.

MSHA Penalties

MSHA violations are the most serious and can impose the greatest fees. The most severe MSHA flagrant violation will now cost $266,275. Employers that fail to abate a citation will incur a maximum penalty of $7,867 per day. Failure to report a fatality or serious injury within 15 minutes will incur a minimum penalty of $6,052.

Contesting Health and Safety Citations

There are multiple options employers can take if OSHA or MSHA cites the company for a violation. If you believe you unfairly received a citation or have evidence to defend your business’ health and safety standards, it may be beneficial to contest the citation. You can contest a citation if you do not believe that your company violated a health and safety order, you believe the violation was improperly classified, you do not believe that the Government gave your company enough time to complete the abatement, or if you believe the assessed penalty was unreasonable.

OSHA Citations must be addressed as soon as possible. Requests to contest OSHA citations must be made within 15 calendar days. Mine operators have 30 days to file a notice of contest with the Secretary of Labor or can wait until a penalty is assessed. After receiving the penalty, the operator has 30 days to file a contest and request a hearing before an administrative law judge of the Federal Mine Safety and Health Review Commission.

There are other factors employers should consider beside the monetary expense of citations. It is also important to consider the consequences of receiving a citation. Workplace safety violations that lead to repeat violations are likely to receive greater fines. Employers are cited for ‘repeated’ violations if they receive ‘substantially similar’ violations anywhere in the nation within the past three years. Employers can also develop poor reputations in the labor community if it consistently receives citations or has employees who continue to get hurt on the job.

Health and Safety Violation Consequences

OSHA and MSHA violations will result in larger penalties for employers. It is important that employers take the necessary steps to improve the health and safety of their most important resources, their employees. A healthy workforce makes employees more likely to work at companies longer. This helps employers save money by not having to train replacements and it limits the penalties that their company may incur from OSHA and MSHA. It is best to be proactive and solve problems and prevent accidents before they occur. If you have been cited for an OSHA or MSHA violation or you anticipate that you will be cited, please contact the experts in workplace safety at Whitcomb Selinsky PC. Consultations are free and you can reach the firm at 303-538-1958.
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Tags: Workplace safety

Trump Proposes NEPA Changes

Posted by Whitcomb, Selinsky, PC Staff on Mar 10, 2020 11:25:38 PM

Trump Proposes Limiting Environmental Reviews and Eliminating Climate Change Considerations From NEPA

On the 50th anniversary of the National Environmental Policy Act (“NEPA”), the President has proposed making the first regulatory change to the Act in over 40 years. The White House Council on Environmental Quality (“CEQ”) recently proposed changes to NEPA. The Act requires environmental reviews of projects like highways and pipelines. The changes to NEPA will reduce the number of projects that would trigger environmental reviews, expand the number of project categories that can be exempted from NEPA review, and allow companies to conduct their own environmental assessments.

NEPA

NEPA was signed into law in 1970 under the Nixon Administration. The purpose of NEPA is to “use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.” It requires federal agencies to assess the environment impacts of their proposed actions before making those decisions. This includes making decisions on permit applications, adopting federal land-management actions, and making decisions concerning highways and publicly-owned facilities.

Trump Proposal

Under the new changes that President Trump has proposed, the scope of NEPA would dramatically change. Large-scale projects like highways, pipelines, and mines would be exempt from the Act’s requirements. In a speech President Trump declared that “Most of America’s most critical infrastructure projects have been tied up and bogged down by an outrageously burdensome federal approval process.” President Trump added, “these endless delays waste money, keep projects from breaking ground and deny jobs to our nation’s incredible workers.”

Proponents of NEPA “Modernization”

The limits on environmental reviews have been touted and criticized by sides of the political aisle. Those supporting the changes to NEPA have stated it would be good for industry, while those who are opposed argue it will be detrimental to environmental and public health. In November, over thirty industry groups that included the Chamber of Commerce and American Petroleum Institute, called on the CEQ to hurry the release of the NEPA “modernization.” As part of the “modernization,” the CEQ is expected to announce federal agencies will not be required to consider the impact of federal projects on “cumulative” climate change. A statement by Wyoming Governor, Mark Gordon, expressed support for the narrowed focus of NEPA. He stated Wyoming is proud of its environment and protective of its natural resources, while also stating NEPA “is not a platform to engage in speculation and it is not a convenient mechanism to obstruct development.”

Critics of NEPA Revision

Critics of the proposed changes argue that upending NEPA is irresponsible considering how it would negatively impact CO2 emissions and climate change. Environmental groups and advocates have raised concerns, stating that the NEPA regulatory process offers protections for communities that are directly affected by big projects. Raul Garcia, senior counsel at Earthjustice, stated, “A lot is riding on this.” He expressed concern that expediting the NEPA process would lead to “environmental reviews cutting corners and overlooking potentially hazardous impacts.” Gina McCarthy, former Environmental Protection Agency (“EPA”) Administrator in the Obama Administration and current president and CEO of the Natural Resource Defense Council (“NRDC”), has said the NRDC will use every tool it has to stop this proposal.

Critics have also said the environmental rollback could impact minorities and low-income communities the hardest. An article by Cheryl Katz in Scientific American indicates that air pollution contains more hazardous ingredients in nonwhite and low-income communities than that of affluent white ones. Katz writes, “the greater the concentration of Hispanics, Asians, African Americans or poor residents in an area, the more likely that potentially dangerous compounds such as vanadium, nitrates and zinc are in the mix of fine particles they breathe.” Latinos receive the highest exposure to these compounds, while whites experience the lowest exposure to such compounds. A study published in the American Journal of Public Health in 2018 echoed the results of Cheryl Katz’ article in Scientific American. It indicates persons of color suffer a greater burden of particulate matter air pollution than white people. According to the study, race is the greatest predictor of exposure to health-threatening particulate matter.

Stay Tuned

If Congress votes in support of the changes to NEPA (which is far from certain), it is likely that the decision will generate considerable controversy. Statutory changes are subject to public hearings before Congress votes to make a change. The proposed statutory changes will most likely face opposition from environmental groups. If the revisions are enacted, both public hearings and court proceedings will delay their implementation. The results of the upcoming presidential elections may also affect the outcome, depending on who is elected. Stay tuned for more information on the proposed changes to NEPA. If you have concerns or questions about NEPA, contact Whitcomb Selinsky PC and talk to one of our attorneys about the impact of the proposed changes.
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Tags: environmental law

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