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).