The Senate’s markup of the 2018 National Defense Authorization Act (“NDAA”) adds new language to 10 U.S.C. § 2304 that would give the Secretary of Defense authority to waive provisions of law that result in only one responsible bidder for a contract for purposes of expanding competition. However, the new provision, which appears in Section 811 of the bill and which, if enacted, would be part of a new subsection (m) added to 10 U.S.C. § 2304, contains a significant carve-out such that it would not permit the Secretary of Defense to impose additional competition in connection with the Small Business Administration’s 8(a) program.
On May 30, 2014, the Federal Acquisition Regulatory Council issued a final rule expanding the FAR’s executive compensation cap—which is currently set at $952,308—to all contractor employees on contracts for the Department of Defense (DoD), NASA, and the Coast Guard. The final rule adopts without any changes the interim final rule issued on June 26, 2013, as modified by a subsequent technical amendment.
Overview of the Final Rule
The FAR’s executive compensation cap limits the allowability of executive compensation to an amount set each year by the Administrator of the Office of Federal Procurement Policy. The rule, which is implemented by FAR 31.205-6(p), previously applied only to the CEO and the next four most highly compensated employees in management at the company’s headquarters, as well as the five most highly compensated employees at certain other home offices of the contractor. The updated rule expands the applicability of the cap to all contractor employees on DoD, NASA, and Coast Guard contracts awarded on or after December 31, 2011.
The final rule was issued pursuant to Section 803 of the National Defense Authorization Act (NDAA) for Fiscal Year 2012 (Pub. L. 112-81). In response to a comment that the final rule will reduce contractors’ ability to attract and retain experienced and talented individuals, the comments to the final rule explain that a June 2013 GAO report found that less than .4 percent of defense contractor employees would be affected by a cap set at the President’s salary of $400,000. The comments also note that GAO found that fewer than .1 percent of employees covered by the existing cap were affected by the cap from 2010 to 2012. The final rule also indicated that the DoD is not prohibited from considering an exception to the cap for scientists and engineers. Continue reading “Final Rule Expanding the FAR’s Compensation Cap to All Contractor Employees on DoD, NASA, and Coast Guard Contracts”
The American Arbitration Association (AAA) recently adopted optional Appellate Rules which significantly change the resolution of post-award issues. The new Appellate Rules, effective November 1, 2013, permit appeals of arbitration rulings directly to an AAA appellate panel. Given the difficulty in overturning traditional arbitration awards, these new rules could help protect against factually and legally flawed outcomes. However, they also could add both time and expense to an arbitration, limiting the efficiencies and cost savings that often lead contractors to use arbitration provisions in the first place. This alert discusses the new Appellate Rules, and some things to keep in mind when evaluating whether to use them.
New Appeal Grounds
One of the traditional features of arbitration compared to litigation is that arbitrations are designed to reach a final decision sooner. Vacating an arbitration award is extremely difficult and can generally only be done under limited circumstances (e.g., plain and obvious bias of an arbitrator, fraud or corruption, misconduct of an arbitrator, or if arbitrators exceed their powers). See Federal Arbitration Act, 9 U.S.C. § 10. An arbitration panel’s legal or factual errors alone are not traditional grounds to overturn an award.
Addressing some of these limitations, the new Appellate Rules provide an optional appellate proceeding for parties who agree to use the rules-either by stipulation or contract provision-to appeal an award based on two grounds: “(1) an error of law that is material or prejudicial; or (2) determinations of fact that are clearly erroneous.” Appellate Rule A-10. Continue reading “AAA Expands Review of Arbitration Awards With New Appellate Rules”