Recently, Mike Severino secured a victory for a client in a bid protest involving the electronic receipt of a bid. With bid protests, timing is paramount. Contractors almost always need to file protests within a very short time period – often as short as five or seven days. Also, procurement agencies – either the State, a county, an individual school system, a state agency, etc. – often have their own specific procurement regulations that one must review and analyze.

One of the most important provisions for a subcontractor in any subcontract is a “pay if paid” clause. That clause, when used with the proper language, conditions payment by the general contractor to the subcontractor on payment by the owner to the general contractor. Last month, Virginia took steps to remedy this risk-shifting mechanism by amending current law to prohibit “pay if paid” clauses and impose new contract requirements on public and private jobs.

The 4th Circuit Court of Appeals, interpreting West Virginia law, recently took up an insurance coverage issue that arose from COVID-related shutdowns. Like many others, the insured claimed business-related losses from the closure of two of its locations. As with these other cases, the insurance policy did not cover the claims due to the physical loss requirement in the policy.

Contractors should be aware that OSHA has launched a National Emphasis Program aimed at preventing heat-related illness and death. Per the NEP, OSHA will conduct workplace inspections in 70 high-risk industries whenever the weather service issues a heat advisory for the area.

Judicial review of an arbitration decision is extremely limited. An arbitrator misapplying the law, misunderstanding the facts, or misconstruing a contract all fail to meet the high burden a litigant must meet to set aside a decision. Likewise, the arbitrator, not a reviewing court, decides the preclusive effect of a prior decision.

On December 17, 2021, the Sixth Circuit, in a 2-1 ruling, dissolved the Fifth Circuit’s stay of OSHA’s Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate either (a) employee vaccinations or (b) that unvaccinated employees wear protective face coverings with weekly COVID tests. The ETS permits employers to choose the compliance method, and does not apply to workers who exclusively work outside or from home.

On December 7, 2021, the United States District Court for the District of Georgia enjoined the President’s Executive Order requiring federal contractors and subcontractors to be fully vaccinated on all new contracts and renewals by January 22, 2022.

Federal contractors and subcontractors should be aware that the minimum wage for workers on many Federal contracts increases to $15 per hour on January 30, 2022 for new contracts (which includes renewals, extensions, and options).

Practitioners and contractors need to be aware that the State and the Maryland Board of Contract Appeals strictly construe the administrative time limits by which a bidder or offeror must protest an award. Typical extensions found in the Maryland Rules, which apply to litigants in state lawsuits, usually do not apply in bid protests. Contractors and their attorneys should leave nothing to chance in ensuring that they file their protests at the earliest opportunity.

Much like judicial conflicts of interest, arbitrators must avoid even the perception of bias or partiality. Just as important, both parties have a significant interest in ferreting out any possible appearance of an arbitrator’s partiality prior to an arbitration. Even without actual bias, perceived partiality can support a court vacating a significant award and requiring the parties to go through the process a second time.

Litigants should remember that they typically cannot immediately appeal an order denying a motion to compel arbitration. More importantly, they should require plaintiffs to submit a claim to arbitration since it is their claim and not leave it up to the parties to fashion an arbitration process. The default should be in the absence of an arbitration claim, the court proceedings should be dismissed.

The Court found that the terms of a construction subcontract conflicted with the prime contract and applied the subcontract’s order of preference clause. The main takeaway, however, is that subcontractors should apprise themselves of any flow-down provisions contained in their subcontracts.

A recent MSBCA case further explains that the “affected competitively” analysis, which may grant a contractor standing to protest the State’s contracting decision. This is one of the tests used to determine if the contractor is an “interested party” under State regulations.

FinCEN has now received public comment to the Corporate Transparency Act, found in National Defense Authorization Act for Fiscal Year 2021 (NDAA). The Act affects certain limited liability companies and corporations (especially those that are closely held) and requires disclosure of certain beneficial owners of the entities.

On April 27th, 2021, President Biden issued an Executive Order raising the minimum wage to $15 per hour for all federal contractors. Contractors must incorporate the higher wage in new contract solicitations starting January 30th, 2022 and implement the new wage by March 30th, 2022.

The Maryland Senate earlier this week approved a proposed constitutional amendment that would raise the minimum threshold for a right to a jury trial in Maryland from $15,000 to $30,000. The measure now goes to the Maryland House of Delegates for a vote there.

Tucked away in the lengthy National Defense Authorization Act for Fiscal Year 2021 (NDAA) is the little-known Corporate Transparency Act. The Act affects certain limited liability companies and corporations (especially those that are closely held) and requires disclosure of certain beneficial owners of the entities.

A trade group made up of commercial general contractors recently filed a lawsuit in federal court calling into question the Small Business Administration's questionnaires used to aid in determining whether loans made under the PPP are subject to forgiveness. The lawsuit seeks to disallow any examination of the borrower’s financial condition after applying for the PPP loan because the required certification is limited to the time the certification was executed.

A recent case before the Maryland State Board of Contract Appeals yet again illustrates the importance of understanding contractual limitations and waivers. In that case, the state contract contained a “no damages for delay” clause, which barred an approximate $1,000,000 delay claim.

The Maryland State Board of Contract Appeals recently addressed a prospective offeror’s standing to prosecute a protest and subsequent appeal to the Board. Because the claimant never submitted a proposal for the RFP and, therefore, there was no reasonable possibility of it being awarded the contract if it prevailed on its protest, the Board ruled that it was not aggrieved under COMAR regulations and lacked standing.