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«2016 ABA Annual Meeting Prevailing Wage Requirements in Government Construction Contracts Friday, August 5, 2016 7:00 a.m. to 8:30 a.m. Westin St. ...»

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2016 ABA Annual Meeting

Prevailing Wage Requirements in

Government Construction


Friday, August 5, 2016

7:00 a.m. to 8:30 a.m.

Westin St. Francis Hotel

San Francisco, CA

American Bar Association

Section of Public Contract Law

2016 Annual Meeting

Prevailing Wage Requirements in Government Construction Contracts

Friday, August 5, 2016

Table of Contents Page

Program 5 Leadership Bios 7 Program Faculty Bios 13

• Federal or State Prevailing Wage Laws or Collective Bargaining Agreements: 15 Which One is Applicable?

Margie Collins, FLC/Construction, Environmental Solutions & Government Contracts (CESGC), FTI Consulting, Rockville, MD

• The Davis-Bacon Act: Continued Efforts To Avoid Its Exclusive Administrative 29 Enforcement Scheme And Remedies Michael J. Schrier, Duane Morris, Washington, DC American Bar Association Section of Public Contract Law Prevailing Wage Requirements in Government Construction Contracts Friday, August 5, 2016 Westin St. Francis San Francisco, CA The Wage Rate Requirements (Construction) statute (formerly known as the Davis-Bacon Act) requires government construction contractors and subcontractors working on federal construction contracts in excess of $2,000 to pay their laborers and mechanics prevailing wages. Contractors who fail to comply can be subject to various penalties, including withholding of contract payments, termination for default, suspension and debarment, and potential False Claims Act liability. In addition, prime contractors and subcontractors can be held financially liable for underpayments by

lower-tier subcontractors. This program will address:

Prevailing wage requirements: who is covered (laborers and mechanics), the scope of  coverage (site of the work, secondary site of the work), wage determinations, submission of certified payrolls, and use of certified payroll software.

Red flags of non-compliance and best practices for verifying/ monitoring compliance with  prevailing wage requirements by contractors and subcontractors.

Department of Labor audits of construction projects for compliance.

 The Circle C decision and False Claims Act liability for non-compliance with prevailing wage  requirements.

Program Panelists Lori Ann Lange, Moderator Peckar & Abramson, P.C., Washington, DC Margie Collins FLC/Construction, Environmental Solutions & Government Contracts (CESGC), FTI Consulting, Rockville, MD Michael J. Schrier Duane Morris, Washington, DC

–  –  –

Before joining Lockheed Martin, Dave served over 33 years in the Air Force in numerous positions. His most recent jobs included Staff Judge Advocate for the Air Force Materiel Command at Wright-Patterson AFB OH, Assistant Judge Advocate General for Military Law and Operations in the Pentagon, and Commander of the Air Force Legal Services Agency in Washington D.C. He also served as the Staff Judge Advocate for US Air Forces in Europe and Commandant of the Air Force JAG School. Prior to becoming a Judge Advocate, Dave served as a Civil Engineer.

Dave received his Bachelor of Science degree in Civil Engineering from the United States Air Force Academy, his Master’s degree in Business Administration and Management from the University of Utah, and his Juris Doctor cum laude from the Creighton University School of Law in Omaha, Nebraska.

Dave serves as the Chair of the American Bar Association (ABA) Section of Public Contract Law. He is also the Immediate Past Chair of the ABA Standing Committee on Legal Assistance for Military Personnel (LAMP) which includes the Military Pro Bono Program.

Dave is admitted to the practice of law in the State of Nebraska and the U.S. Court of Appeals for the Armed Forces. Dave and his wife, Chris, have three children and seven grandchildren.

–  –  –

Michael A. Hordell is a partner in the Government Contracts and White Collar and Corporate Investigations Practice Groups of Pepper Hamilton LLP, resident in the Washington office. Mr.

Hordell has a broad range of experience in government contracts matters. He also is a member of the firm’s Sustainability, CleanTech and Climate Change Team.

Mr. Hordell advises small and large business clients on a range of government contracts issues, including: proposal preparation and business counseling; GSA Multiple Award Schedule contracting, strategic alliances and subcontracting relationships; prosecution and defense of bid protests at the U.S.

Government Accountability Office (formerly the General Accounting Office); the Federal Aviation Administration; the U.S. Court of Federal Claims and other forums disputes and contract closeouts; teaming agreements and joint ventures; rights in technical data and computer software mergers and acquisitions;

procurement fraud; small business preferences grants; suspension and debarment matters compliance reviews; litigation.

–  –  –

Mr. Hordell has a Top Secret/sensitive compartmented information clearance/access from the U.S.

government, permitting him to assist contractors with classified matters. He helps clients identify contract or grant opportunities, and works with them as the client develops its proposal addressing the government’s needs as described in the solicitation documents.

Mr. Hordell is a frequent lecturer and author on a variety of government contracts topics. Among his publications is Winning Proposals and Pricing/Cost Strategies: A Guide for the Federal Contractor, a book designed to help companies doing business with the government and those who want to do business with the government.

Mr. Hordell is a past chair of the ABA’s Section of Public Contract Law. He also is a member of the Bid Protest and Health Care Contracting committees. Previously, Mr. Hordell was section chair (2006-07), chair elect (2005-06), vice chair (2004-05) and secretary (2003-04), and was a member of the Section’s Governing Council (1994-97) and an associate editor for the Public Contract Law Journal (1986-98).

Honors: Best Lawyers, Listed in The Best Lawyers in America; Super Lawyers, Selected for inclusion on the 2007, 2011 and 2013 Washington, D.C. Super Lawyers lists.

Education: B.B.A., Insurance and Marketing, University of Cincinnati, 1970; J.D., Boston University School of Law, 1973 Bar Admissions: District of Columbia; Massachusetts Court Admissions: U.S. Court of Federal Claims; U.S. Court of Appeals, Federal Circuit; U.S. District Court, District of Columbia

Kristen E. Ittig, Annual and Quarterly Program Co-Chair

Kristen Ittig is a partner at Arnold & Porter in Washington, DC. She counsels and represents large and small clients in government contracts matters, including compliance counseling, bid protests, investigations, audits and self-disclosures, claims and disputes, terminations, and other issues impacting government contractors and federal grantees.

Ms. Ittig counsels companies on compliance obligations relating to federal contracts and grants and assists companies in designing and implementing effective compliance programs. She also provides guidance on contract and subcontract negotiations, the formation and administration of teaming and strategic alliances, and performance disputes.

Ms. Ittig assists contractors and grantees in conducting internal investigations, and represents clients in audits and investigations conducted by the Department of Justice, the Government foreign firms in Accountability Office, and agency inspectors general, including providing advice on the FAR mandatory disclosure requirements. She has substantial experience in suspension/debarment proceedings, and in defending federal civil False Claims Act cases, including matters relating to GSA Schedule contract compliance.

–  –  –

Further, Ms. Ittig provides advice regarding small business matters, including maintenance of small business status and establishment of SDVOSB, EDWOSB and HUBZone eligibility. In this context, she litigates size protests and NAICS code appeals.

Ms. Ittig has substantial experience in domestic preference law, including the Buy American Act and the Trade Agreements Act. She litigates Freedom of Information Act (FOIA) and reverse-FOIA matters relating to the release of unit pricing and other sensitive contractor information.

Separately, Ms. Ittig represents clients in security clearance litigation matters before the Defense Office of Hearings and Appeals and other agency adjudicative authorities.

Education: JD, Vanderbilt University Law School, 1996; BA, American University, 1990 Admissions: Virginia, District of Columbia; Maryland

–  –  –

Sharon L. Larkin, a partner in Steptoe's Washington office, has nearly 20 years of experience handling complex government contract matters. She holds a Secret clearance to assist clients with classified matters. Ms. Larkin is identified in Chambers USA 2015 and 2016 as a “Recognized Practitioner” among government contracts lawyers nationwide, and in 2016 as a Washington, DC “Super Lawyer” in government contracts.

Ms. Larkin represents government contractors in the full spectrum of procurement matters, with particular emphasis on bid protests, claims litigation, and dispute resolution – areas where her role as a former judge hearing contract disputes informs her understanding and insight. She also advises and assists clients with contract negotiations, small business matters, data rights, investigations and compliance, and civil disputes. Her clients include both large and small contractors, and her particular areas of industry focus include health care and biotechnology, aerospace and defense, information technology, and construction.

Ms. Larkin’s experience as a judge and advocate enables her to take the most practical approach in solving her clients’ legal and business problems efficiently. She spent 12 years with the Government Accountability Office (GAO), where she served as a Judge on the GAO Contract Appeals Board and an Assistant General Counsel in the Procurement Law Division. Her experience at the GAO includes presiding over some of the most complex bid protests and contract appeals, including disputes involving the acquisition and performance of contracts for complex weapons systems, environmental remediation, healthcare services, information technology, and the modernization and renovation of the United States Supreme Court. During her time at GAO, she heard more than 1,600 cases, issued more than 425 public decisions, presided over more than 40 hearings and trials, and conducted more than 65 alternative dispute resolution sessions. Ms. Larkin won numerous awards for distinguished service, including the GAO Meritorious Service Award from the Comptroller General in 2007, and several Office of General Counsel Outstanding Achievement Awards.

9 Table of Contents

American Bar Association Section of Public Contract Law

–  –  –

Before and after GAO, Ms. Larkin was a government contracts attorney in private practice, where she counseled clients on a variety of procurement matters and litigated cases at the GAO, Court of Federal Claims, various other state and federal trial and appellate courts, and the boards of contract appeals. She has also served as an expert witness on procurement matters.

Ms. Larkin chaired the ABA Section of Public Contract Law in 2013 to 2014, where she led the Section through the federal government shutdown. She is a frequent lecturer on government contracting matters and has taught numerous classes on contract formation and administration, litigation practice, and alternative dispute resolution. Prior to going to law school, Ms. Larkin worked for several years in the field of medical technology in laboratory medicine.

Representative Matters

• Successfully defended a bid protest that affirmed a client’s win of a $199 million task order to support the US Department of Agriculture’s web-based supply chain management system—a system which supports food and nutrition programs serving over 30 million Americans and 280 million people worldwide.

• Successfully defended a bid protest that secured for a major government contractor a $1.2 billion contract award issued by the Marine Corps for amphibious combat vehicles.

• Represented a contractor in preparing a multi-million dollar claim against the District of Columbia government for outstanding payments due and owing the contractor for the development and implementation of the District of Columbia’s health care access exchange under the Affordable Care Act.

• Represented a small disadvantaged business in preparing a multi-million dollar claim against the Metropolitan Washington Airports Authority for costs incurred by owner-caused delays to the project.

• Retained as an expert to offer opinion and testimony on irreparable harm in an action for injunctive relief in Starlite Aviation Operations Ltd. v. Erickson Inc., No. 3:15-cv-00497 (D. Or. 2015).

Education: Suffolk University Law School, J.D., magna cum laude, Member, Suffolk University Law Review;

Albany College of Pharmacy, B.S., Medical Technology in Laboratory Medicine Judicial Clerkships: Hon. Moody R. Tidwell, III, US Court of Federal Claims Bar & Court Admissions: District of Columbia; Maryland; Massachusetts; Virginia US Court of Appeals for the Federal Circuit; US Court of Appeals for the Fourth Circuit Professional Affiliations: Past-Chair and Fellow, American Bar Association Section of Public Contact Law;

Faculty Member, Public Contracting Institute; Advisory Board Member, PubKLaw; National Association of Professional Women; Board of Contract Appeals Bar Association; Court of Federal Claims Bar Association

–  –  –

Rebecca R. Vernon is an active duty judge advocate in the United States Air Force. She is currently assigned as the Executive Officer to The Judge Advocate General, Headquarters Air Force. Rebecca has served over 20 years as an active duty judge advocate.

–  –  –

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