Late Breaking Stories - March 1996

As this issue goes to the printers, there are two significant stories affecting government contractors. On February 2, 1996, the United States Court of Appeals for the District of Columbia Circuit struck down the President’s March 8, 1995, Executive Order that forbade federal contractors from permanently replacing striking workers. See Chamber of Commerce v. Reich, No. 95-5242.

The Executive Order had precluded striker replacements as a matter of procurement policy. The Court of Appeals held it invalid because preempted by the National Labor Relations Act (NLRA), which does not forbid employers from permanently replacing strikers. The Court rejected arguments that the Executive Order was not reviewable and that the President had plenary authority to set Executive Branch procurement policy whether or not that policy was consistent with the NLRA. In striking down the Executive Order, the Court in effect ruled that employers do not forfeit their rights under the NLRA be cause they receive federal contracts.

The media reports that the administration plans to appeal. This Executive Order was critiqued in Peter Kilcullen’s article “What Happened to Acquisition Streamlining?” in the Summer 1995 issue of Insights, also available on our Home Page at Stay tuned for further developments.

On February 10, the President signed the National Defense Authorization Act for Fiscal Year 1996. Beyond funding Department of Defense operations, the appropriations act eliminates the information technology oversight function of the General Services Administration authorized in the Brooks Act, 40 U.S.C. § 759, and with it, the protest jurisdiction of the General Services Administration Board of Contract Appeals.

Included is the Information Technology Management Reform Act of 1996. Among other changes are requirements for agency Chief Information Officers to develop an “information technology architecture,” i.e., a plan for evolving or maintaining existing systems, and for acquiring new systems. The Information Technology Management Reform Act requires agencies to use modular contracting for major systems acquisitions. This it defines as “successive acquisitions of interoperable increments,” with each increment compliant with “common or commercially accepted standards,” and such “that the increments are compatible with other increments of in formation technology compromising the system.”

The effective date of the Brooks Act repeal is August 8, 1996. At this same date, the period in which the General Accounting Office must decide protests is reduced from 125 to 100 calendar days. The General Services Administration Board of Contract Appeals may continue to docket protests through August 8, and may decide protests after that date.

The elimination of the General Services Administration Board of Contract Appeals’ protest jurisdiction leaves the General Accounting Office, the United States Court of Federal Claims, and the federal district courts as the only forums with protest jurisdiction. We’ll look more closely at these forums in future issues of Insights.

Walt Wilson & Dan Donohue

Copyright © 1996 Kilcullen, Wilson & Kilcullen. All rights reserved.