Over 500 construction
lawyers, experts, and consultants descended on Washington last week for the Forum’s 2023 Fall Meeting. Newly
minted Forum Chair John Cook and Program Coordinators Catherine Delorey and
Brian Zimmerman put together a stellar program focused on navigating government
construction. For this installation of the post-meeting post, I'm teaming up with guest contributor, Jennifer Kanady, to bring you
10 of our top take-aways from this unique program.
10. Contracting with the
government is replete with risk that could easily trap the unwary. Nobody
likes to be taken advantage of. But hell hath no fury like the U.S. Government
scorned. Erin Cannon-Wells and Aaron Silberman, gave a (truly) delightful,
Indiana-Jones-inspired presentation on the regulations that can doom the unwitting contractor who is less than perfectly forthright in its
dealings. The government has
created financial incentives for members of the public to report your
company’s violations as part of a qui tam action. When you consider the
number of potential whistleblowers in the bidding process and the contracting chain, a qui tam action would seem more likely than not. Add to that the sanctions contractors
might face for even innocent errors either by their
own companies or their downstream subs, and government contracting begins to sound
increasingly like the Temple of Doom. Oh, and in case you were only focused on
affirmative claims, beware the “reverse false claim” which is concealing
information that would rightfully entitle the government to a credit…
9. The federal infrastructure act ("IIJA") can fund projects focused on clean water, clean school busses, and everything in between. Contractors who are clamoring to get their piece of the IIJA pie will need to make sure they can live by the government’s rules, chief among them being the Davis-Bacon Act (“DBA”). The DBA, among other things, requires contractors and subcontractors on federally funded construction projects to pay local prevailing wages and fringe benefits to laborers and mechanics. While this high-level aim may sound easy enough to achieve, there are several ancillary requirements built into the DBA that mandate that contractors must, for example, pay workers weekly and maintain adequate records for three years after completion of the work. It was for good reason that the DBA was one of the potential traps lying in wait for federal contractors discussed by Erin and Aaron (see Take Away No. 10 above). But during the Division 3 lunch program, Rob McDonald and Tamara McNulty advised attendees that the DBA is about to see the most significant and comprehensive changes it has seen in 40 years. Those changes to the DBA go into effect on October 23, 2023 so be on the lookout.
8. The U.S. Government is using its massive purchasing power to force sustainable construction. The U.S. Government is the largest purchaser of goods and services in
the world. On an annual basis, it spends over $550 billion, with more than $24
billion of that spent on construction. According to James Nagle, the government
is attempting to wield this purchasing power to force the "greening" of construction. Contractors who wish to
bid on government projects are not just going to be evaluated on technical
merit, key personnel, and price. They are also going to be assessed on their
carbon footprint. The impact of these requirements on the bottom line has yet
to be seen but will likely be substantial.
7. “Language connects us and shapes our most significant moments.” Attendees of the fall meeting were invited to a networking reception hosted at the Planet Word Museum where they sampled the culinary contributions of different immigrant cultures and were given free access to several floors of exhibit halls. Opened in 2020, Planet Word is the only museum in the country dedicated to inspiring a love of language. The museum’s mission is ever more critical given the fact that literacy rates in this country are actually declining; Planet Word reports that there are 32 million adults in the U.S. who can’t read. The museum's immersive exhibits had an amazing way of bringing words—whether signed, spoken, written, or sung—to life. Be sure to check out the video below to watch John Cook connecting with his karaoke skills!
6. Government contractors
who fall victim to cyber-attack can find themselves subject to government
sanctions as a result. This is the
word on the street by B. Stephanie Siegmann and Alex Trafton who gave an
insightful workshop on the evolution of the threat to cybersecurity. The most
startling statistic was that the vast majority of companies have experienced
some form of cyber-attack over the last 12 months. To match the risk, federal
rules requiring companies to provide adequate security and to report cyber incidents are being implemented.
As if the loss of the data were not punishment enough, government contractors and grant recipients that fail to follow cybersecurity
standards may be held accountable to the government for putting U.S. information and systems
at risk.
5. When it comes to the
government claims process, "two roads diverged in a yellow wood…" If you or your clients don’t agree with the contracting officer’s response to your claim for time and money, you have
two paths to appeal: (i) the Court of Federal Claims and (ii) the Boards of
Contract Appeals. Andrew D. Ness, Michelle D. Coleman, Timothy C. Tozer, and
David Wonderlick gave an interactive presentation on the claims process and
their perspectives about which of the roads should be taken depending
on the circumstances. The Boards of Contract Appeals are presided over by
administrative law judges and will be less formal. They allow pro se litigants,
have accelerated processes available for claims under $100,000, and hew more
closely to what you would expect to see in arbitration. If that doesn’t sound
appealing (or if you miss the 90-day window to appeal with the Board), the
Court of Federal Claims might be for you, although there's no guarantee that road will be less traveled by.
4. Attorneys can request—but
not direct—their client’s current (but not former) employees
not to speak to opposing counsel. This was just one of several ethical
minefields we navigated with the help of Thomas E.
Spahn. Other nuanced take-aways: (i) while it could be considered malpractice
not to search the social media of an adverse witness, you can cross the line by
attempting to “friend” them; and (ii) while most jurisdictions require you to
return documents inadvertently sent by opposing counsel whether it is
ethical to look at metadata that is inadvertently disclosed is
highly state specific. Research the rules in the state where you are licensed
so you don’t run afoul of them.
3. Engaging in ADR with the feds is a delicate—but possible!—process. It is always important to understand how a federal construction project might differ from a private one, particularly when it comes to resolving disputes. While historically the government was not willing to engage in ADR, this is no longer the case according to the Hon. Jeri Somers, Adrian P. Bastianelli, III, and Scott N. Flesch. Just because the possibility of ADR with the feds is on the table does not mean it should be pursued without careful planning. Harry Potter fans know it would be unwise to approach a Hippogriff with too much haste; so, too, a contractor must be patient and respectful in approaching the contracting officer with a proposed meditation plan. In order to set the stage for successful mediation with the government, a contractor should: (i) understand who has authority to bind the government; (ii) give the government rep time to understand and evaluate the case before requesting a mediation; (iii) be prepared and willing to select a mediator from the government’s preferred panel of judges; (iv) understand whether settlements will be paid from the Judgment Fund (which covers liabilities of the government); and (v) be prepared to establish some exposure that will justify settlement and recognize that the government will never settle for nuisance value.
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| Tom Dunn, Jessica Knox, and Chris Caddell at the Puttery |
2. You can discover more about someone in an hour of play than in a year of conversation. That lesson was never better illustrated than at the divisional socials on Thursday evening. Divisions 1 and 6 teed off for a few friendly rounds of mini golf at the Puttery. Some were fortunate to experience the unparalleled exhilaration of a hole in one. Others mastered using the reverse side of the putter to chip balls over the obstacles instead of around. While the debate continues to swirl as to whether this technique was in the “spirit” of the game, fun was nevertheless had by all.
1. Dare to dream big. While Jackie Robison wasn’t considered the best African American player to come out of the Negro League, he became the first to break the Major League color line in 1947. This was the act that Bob Kendrick -- President of the Negro Leagues Baseball Museum in Kansas City, Missouri -- credits with igniting the civil rights movement. Until that time, the Negro League was the only option open to African American men (and women) who wanted to play professional baseball in this country. The fact that the athletes in the Negro League faced profound discrimination and adversity did not prevent them from competing at the highest levels. While they certainly weren't given their due respect contemporaneously with their achievements, a total of 35 Negro League players have now been inducted into the Major League Hall of Fame, including: (i) Andrew “Rube” Foster, credited with inventing the screwball; (ii) “Cool Papa” Bell, who could circle the bases home to home in 12 seconds flat; and (iii) Josh Gibson, aka “the Black Babe Ruth” who is reported to be the only player (of any color) to ever hit a ball out of old Yankee Stadium. They are the ultimate testament to the fact that if you dream big, there is no limit to what you can achieve!
Co-author Jennifer M. Kanady is Senior Counsel at FAC Services, LLC, a
professional services firm with over 40 years of experience providing high
quality, timely and trusted business services to architecture, engineering and
construction management firms. Jennifer focuses her practice on design professional practice management and
construction litigation and can be reached at JKanady@facfin.com.
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