Month: September 2013

Confusion Surrounds a New Virginia Law on Emploees’ Personal Identifying Information

Authored by attorney Anne G. Bibeau

A new law, Va. Code § 40.1-28.7:4, which went into effect on July 1, 2013, has caused confusion for Virginia employers.  The law provides that an “employer shall not … be required to release, communicate, or distribute to a third party any current or former employee’s personal identifying information,” which is defined as home telephone number, cell phone number, email address, shift times, or work schedule.  The law lists exceptions for where employers are required to release personal identifying information pursuant to a federal law, court order, judicial warrant, subpoena, or civil litigation discovery.

Several commentators have erroneously reported that this law prohibits employers from releasing employees’ personal identifying information.  That’s not what the law says.  While there is no official guidance on the law and it’s impossible to predict how a court would interpret it, employers should know that the law only provides that employers shall not be required to release employees’ personal identifying information, unless one of the exceptions applies.  The law was intended to prevent employers from being compelled to produce employee information to union organizers.  Because it is broadly worded, the law applies to any third-party request for employees’ personal identifying information.  However, the law would not prevent an employer from voluntarily disclosing its employees’ personal identifying information.

Nonetheless, there are numerous reasons—unrelated to the new law—that employers should think twice before releasing an employee’s personal identifying information.  Foremost, there may be safety concerns.  In addition, there may be issues of employee morale, competition, customer relations, privacy, and any number of other reasons that employers and employees may have for not wanting such information released.  This new law gives employers an excuse for refusing to produce employees’ personal identifying information except where required by law.

These articles are meant to bring awareness to these topics and are not intended to be used as legal advice.

Can I File a Bid Protest over an IDIQ Task Order?

Authored by attorney Anthony J. Mazzeo

You’ve successfully been awarded a Multiple Award contract with a Federal Agency and have earned a “seat at the table” for the forthcoming Indefinite Delivery Indefinite Quantity Task Order competitions.  We know that those Task Order Requests for Proposals require just as much effort on your part as the initial proposal did.  In this case, after what seemed like a lengthy delay, the awards are finally announced, but you are notified that you were not selected for the contract.  What are your options?

Unlike other government contracts, there are some restrictions on the availability of a bid protest for task orders on a multiple award contract.  The Federal Acquisition Regulation specifically prohibits bid protests related to task orders or delivery order contracts except in certain cases.

A protest of an individual task order is only authorized when the order “increases the scope, period, or maximum value of the contract,” or on task or delivery orders in excess of $10 million.  Protests satisfying the large dollar value threshold may only be filed with the Government Accountability Office.

For Task Orders that do not meet the $10 million criteria, the ability to file a protest is very narrow.  In most instances, the disappointed bidder’s only recourse is to contact the Agency’s Task Order and Delivery Order Ombudsman who has been appointed to review contractor complaints and ensure fairness in the competition.  This ombudsman is a senior agency official, independent from the contracting officer, and serves as the Agency’s advocate for competition.

Multiple Award IDIQ contracts have become very popular, in part because of this limited opportunity for protests, so it is very important to understand your options when unsuccessful in your bid for a task order.

These articles are meant to bring awareness to these topics and are not intended to be used as legal advice.

New Affirmative Action and Nondiscrimination Obligations Set for March 2014

The U.S. Department of Labor published new final regulations on September 24, 2013 requiring Federal government contractors to begin complying with new affirmative action and nondiscrimination obligations towards veterans and individuals with disabilities by March 24, 2014.

Click Here to view the final regulations (last accessed 09/25/20013).

Generally, the rule requires contractors to adopt quantifiable hiring benchmarks for veterans and utilization goals for people with disabilities. The new rule also has a number of new employment data collection obligations, and requirements to invite job applicants to voluntarily self-identify themselves as protected veterans or individuals with disabilities both at the pre- and post-offer phases of the employment process.

There are some phase-in allowances. As with any program of this type, its effectiveness in achieving its intended goal will remain to be seen, as will any future adjustments as the rules take affect.

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Employer Issues in Workers’ Compensation: Undocumented Workers

Employees working for an employer covered by the Virginia Workers’ Compensation Act are entitled to monetary benefits when a work-related injury causes a total loss of wage-earning capacity, such as where the worker is unable to return to his or her job because of a temporary or permanent injury.  This applies equally to unauthorized or undocumented workers in the United States.

However, the Virginia General Assembly has made a policy decision that employers and insurance companies are not required to pay partial loss of wages in cases where the injured worker is “not eligible for lawful employment,” for example, unauthorized or undocumented workers.  Thus, while unauthorized workers are not barred outright from coverage under the Virginia Workers’ Compensation Act, they are barred from claiming and receiving wage loss compensation once they have regained at least some work capacity following their industrial accidents.

Therefore, when you are discussing the adjudication of a workers’ compensation claim with the attorney retained to represent your interests in defense of such a claim, make sure your attorney is aware if there is any question of the immigration status of the injured worker, and be sure to include all documentation you have pertaining to the injured workers’ immigration status.

Contractor’s Misrepresentation Allows Government to Void Maintenance Contract

Multiple representations are required from prospective bidders as part of the bidding process. Some bidders push the line on those in order to put them in a better position for award. But what happens when a bidder crosses the line from augmenting qualifications to misrepresenting them? In the recent decision of Dongbuk R&U Engl’g Co., Ltd., ASBCA No. 58300, 8/13/13, decision released 8/26/13, the ASBCA concluded such misrepresentation allowed the Government to void the contact – in that case a maintenance services contract. In its proposal, Dongbuk had represented that it had several technicians meeting required licensing requirements, but after award the Army found that none possessed the required certificate.

The matter was referred to the local prosecutor’s office and ultimately Dongbuk’s CEO convicted of fraud and the company debarred. In the interim, Dongbuk had been performing the contract and submitting invoices for its work that the Government did not pay. Donguk’s final decision request was denied, and it appealed for payment to the ASBCA. The ASBCA granted summary judgment to the Government on the grounds that Dongbuk’s fraud voided the underlying contract, and that the fact that the Government may have received some benefit did not relieve Dongbuk from the consequences of its fraud.

This decision offers many lessons for prospective bidders / offerors; all learned the hard-way by Dongbuk.

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