“The fundamental liberties protected by the Fourteenth Amendments Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs…. History and tradition guide and discipline the inquiry but do not set its outer boundaries.”[1]

In 1967 the Supreme Court invalidated laws prohibiting interracial marriage (Loving v. Virginia)[2], and twenty years later the high court held that prisoners could not be denied the right to marry (Turner v. Safley[3]).

In 2015 the Supreme Court’s Obergefell v. Hodges decision identifies four key principles and traditions to support marriage as a fundamental liberty of same-sex couples:

• the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Decisions about marriage are among the most intimate that an individual can make, and this is true for all persons, whatever their sexual orientation.
• the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association.
• protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.
• marriage is a keystone of the Nation’s social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable.

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

The Court looks to the Fourteenth Amendment’s equal protection clause and the due process clause. Some rights are implicit in liberty; others are secured by equal protection of the law.

The right to marry is a fundamental right inherent in the liberty of the person Same-sex couples may exercise the fundamental right to marry. “While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”

Prior to the Obergefell decision, Georgia’s constitution and statutes prohibited same-sex marriage and prohibited recognition of same-sex marriages formed in other states.  Georgia’s courts, legislature, and local governments are now adapting to the new legal landscape.  Stay tuned.

Endnotes:

Read the entire Obergefell v. Hodges decision at 135 S. Ct. 2584 (U.S. 2015)

[1] Quoted passages within this article are from the Obergefell decision as published.

[2] 388 U.S. 1 (U.S. 1967)

[3] 482 U.S. 78, 95, (U.S. 1987)

© Karen S. Hindson, Hindson & Melton LLC

For an updated look at the regulatory framework and case precedent applicable to multiple or final competitive ranges, check out Karen Hindson’s April 2013 article on the subject.  This article identifies the key FAR provisions addressing exchanges with offerors in competitive acquisitions, Comptroller General decisions addressing multiple competitive range scenarios, an RSA arbitration panel decision involving final competitive range, and federal court case citations involving initial and final competitive range determinations.

The Comptroller General recently made a clear statement on this subject: “The fact that an agency initially included a proposal in the competitive range does not preclude the agency from later excluding the proposal from further consideration, if the proposal is found no longer to have a reasonable chance of receiving award.” Matter of: Concept Analysis and Integration, LLC, B-406638.3 (March 29, 2013).

See Karen’s full article here:   MULTIPLE COMPETITIVE RANGES.April2013

© Karen S. Hindson, Hindson & Melton LLC – April 10, 2013

Employers subject to federal Family Medical Leave Act:

• private employers with at least 50 employees
• local, state, and federal government agency employers regardless of size
• elementary and secondary schools regardless of size (special rules for local schools)

Employer obligations:

• continue employee health insurance (employee may be required to make normal contributions)
• return employee to same or nearly identical job after FMLA leave (exception for certain “key” employees)
• cannot hold FMLA leave against the employee in hiring, promotions or discipline
• respond to employee FMLA leave request within 5 business days
• give employee notice of specific employee rights and responsibilites along with employer’s leave eligibility response
• medical certifications may be required

Employee eligibility requirements:

• must have worked for employer at least 12 months (seasonal work can qualify)
• must have worked at least 1250 hours in the 12 months before take leave under Family Medical Leave Act
• must work at a location where employer has at least 50 employees within 75 miles of worksite
• special eligibility rules for airline flight attendants and flight crews

Family Medical Leave Act rules:

• up to 12 weeks unpaid FMLA leave in any 12 month period
• employee can use sick leave or vacation time along with FMLA leave to get paid for the duration of the paid leave benefits
• employer can require employee to use paid leave during FMLA leave
• use FMLA leave to care for spouse, child or parent who has serious health condition
• use FMLA leave for your own serious health condition when unable to work

What is considered a serious health condition?

• requires overnight stay in hospital or medical care facility
• incapacitates you or family member for more than 3 consecutive days and have ongoing medical treatment
• chronic condition that cause occasional periods of incapacity requiring treatment at least twice a year
• pregnancy including prenatal medical appointments, incapacity due to sickness, and medically required bed rest

Birth of a child:

• FMLA leave for birth of a child or for placement of a child for adoption or foster care
• men and women have same rights to FMLA leave to bond with child
• leave must be taken within one year of birth or placement
• leave must be taken as a continuous block of time unless employer agrees to allow intermittent leave such as part-time schedule

Military Family Leave:

• up to 26 weeks FMLA leave in a 12-month period to care for covered servicemember with serious injury or illness
• FMLA leave related to certain military deployments

Stepchildren and others included under FMLA:

• stepchildren and foster children
• legal wards (guardianships for minors)
• “in loco parentis”  – those with day-to-day responsibilities to care for and financially support a child with no biological or legal relationship

For a  summary of the Family and Medical Leave Act (FMLA) for employees, see the following guide:

Family and Medical Leave Act Employee Guide – United States Department of Labor

For detailed federal regulations implementing the Family and Medical Leave Act, , see Code of Federal Regulations (CFR):

Title 29 – Labor – Part 825.

Many states also have laws covering family and medical leave for employees working in that state.  Contact Hindson & Melton LLC for assistance with your FMLA questions and compliance needs.
Karen S. Hindson    August 10, 2012

The Court of Federal Claims, interestingly, was not concerned that the protester submitted non-identical electronic and paper copies of the bid.  The electronic copy was submitted timely, but the non-identical paper copy of the proposal (which, according to the RFP, would control in the event of inconsistency) was not in the contracting offices’ hands until after the time set for receipt of proposals.  The contractor’s courier was logged in at the security gate prior to time for receipt of proposals and had spoken to a representative in the contracting office by telephone.  The Court found the proposal to be under the government’s control prior to the deadline under the facts of this government contract bid protest case.

Government control exception calls for a fact-specific inquiry.

In applying the government control exception to late proposal rule, the Court made a fact-specific inquiry looking to the instructions in the solicitation and the nature of the agency’s facilities.    The Court noted that the government contractor did not receive an advantage by late submission, such as access to post-deadline information or having more time to prepare its proposal, and consideration of the proposal would not compromise the competitive process.

In applying the government control exception in this bid protest, the Court stated that the proposal was “under the government’s control” when the offeror relinquished control over the proposal such that the offeror could no longer modify the proposal.   Under this standard, many proposals rejected as untimely would seem to qualify.  However, the Court emphasized the fact that the contractor had timely submitted a complete copy of the proposal electronically.   (The fact that the electronic proposal was not identical to the paper copy did not trouble the Court since the RFP did not require identical proposals).

Possibility of waiver as minor informality.

The Court went even further, finding that even if the late proposal was not under government control, the late delivery of the paper copy could be waived as a minor informality in this bid protest case.  The agency should look to see if the offeror gained a competitive advantage or prejudiced competing offerors, and if not, waive the late paper proposal as a minor informality.

The Court issued a permanent injunction requiring the DIA to consider the contractor’s late proposal.  The court concluded that the contractor, a Native American Indian, service-disabled veteran owned and certified small disadvantaged business, would be irreparably injured without a permanent injunction.  Recoupment of bid preparation costs was not considered a sufficient remedy, since this large dollar value contract represented a significant business-expansion opportunity for the small business.   The bid protest decision to issue an injunction would not work a significant hardship on the agency since the agency had not yet awarded a contract.

Government control exception calls for prompt action.

It was important to the contractor’s success in this bid protest case that it acted quickly to assert its rights.  The Court of Federal Claim’s decision to issue an injunction might have been different had the agency already awarded a contract.  If your company needs assistance with your late bid or proposal issue, contact Hindson & Melton LLC as early as possible for assistance with your case.
Karen S. Hindson – July 23, 2012

Notify contracting officer of prime’s failure to make subcontractor payment

Notify the government contracting officer in writing, promptly, if subcontractor payment by the prime is late.  While the government does not have “privity of contract” with a subcontractor (meaning the government’s contract is with the prime contractor, not with the sub), the contracting officer will often exert pressure on the prime contractor to make timely subcontractor payments.

Sometimes, the government will agree to modify the prime contract to require government contract payments be made jointly to the prime and a key subcontractor.  This status as an official joint payee gives rise to the subcontractor being considered a “third party beneficiary” of the modified prime contract.  If the goverment then fails to make joint payment as contractually agreed in the contract modification, and the prime does not pay the sub, the subcontractor can sue the government directly for breach of contract.

Subcontractor third-party beneficiary status upheld by courts

The United States Court of Appeals for the Federal Circuit recognized the subcontractor’s status as a third party beneficiary in such a case years ago.  D&H Distributing Company v. United States, 102 F.3d 542 (Dec. 12,  1996)  The government modified the prime’s contract requiring the government to make joint payments to the prime and subcontractor.  The government then failed to make joint payments as required by the modification, and the prime contractor failed to make subcontractor payment.  The Court of Federal Claims dismissed the subcontractor’s suit against the government, but the Court of Appeals for the Federal Circuit reversed the lower court.  The subcontractor as a third party beneficiary of the contract modification can sue the government directly for damages resulting from the government’s breach of the modified contract.   Further, even if the modification is interpreted as an assignment of rights under the contract, assented to by the government, the subcontractor can still successfully hold the government liable if it fails to make payment in accordance with the contract modifiation terms.  So under either theory – third party beneficiary, or assignment with the assent of the government – the subcontrator has a remedy directly against the government for failure to make the payment jointly with the prime as required by the modified contract.

Subcontractor payment on government contract not subject to setoff by government

One a subcontractor has status as a third-party beneficiary, the subcontractor is entitled to payment without any setoffs for amounts due to the government by the prime contractor on unrelated contracts.  Only government claims against the subcontractor can be setoff from payment due the subcontractor under the contract.  “Setoff is a device that facilitates the efficient reconcilation of competing claims between the same parties.”  J.G.B. Enterprises, Inc. v United States, 497 F.3d 1259 (Aug. 2, 2007).   In J.G.B., the United States conceded that JGB was a third-party beneficiary.  “A subcontractor is a third party beneficiary to the government contract when the CO knew or should have known that the government’s payment on the contract was intended to directly benefit the subcontractor” (citing the D&H  decision).  The government contracting officer was aware that the change in payment arrangements was intended to ensure payment to JGB.  Accordingly, JGB is a third-party beneficiary and the government cannot reduce the payment to JGB because the government has outstanding claims against the prime contractor.

Sue for subcontractor payment in the right court and beware statute of limitations!

The United States Court of Appeals for the Federal Circuit dashed hopes for a Navy subcontractor payment in the recent case of FloorPro, Inc. v United States, 680 F.3d 1377 (May 31, 2012).   The government and contractor entered a contract modification directing the government finance office to issue a joint check payable to the prime contractor and subcontractor.  (The prime was having financial troubles).  The finance office instead made the payment only to the prime contractor, who failed to pay the subcontractor.  Subcontractor FloorPro, Inc. communicated with the contracting officer, submitted a claim to the Navy, and filed an action against the Navy at the Armed Services Board of Contract Appeals (“ASBCA”).  The ASBCA said FloorPro was a third-party beneficiary and found the government liable for damages plus interest for the government’s breach of the contract modification.

When the government appealed, however, the Court of Appeals for the Federal Circuit said the ASBCA did not have jurisdiction under the Contract Disputes Act (“CDA”) to hear a third-party beneficiary claim.  The CDA applies only to contractors, not subcontractors.  The Court left the door open, however, for the third-party beneficiary subcontractor FloorPro, Inc. to sue the government in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491(a)(1).

FloorPro, Inc. did just that.  It filed suit against the government in the Court of Federal claims.  The government sought to have the case dismised based on the 6 year statute of limitations having run out.  The Court of Federal Claims found in favor of subcontractor FloorPro. Its decision turned on the interpretation of when FloorPro’s claim against the government accrued.  The government appealed its loss, and the United States Court of Appeals, Federal Circuit, vacated the lower court’s decision and ordered the lower court to dismiss FloorPro’s case for lack of jurisdiction.  The 6-year statute of limitations must be strictly construed since a waiver of the government’s sovereign immunity is involved.  FloorPro waited too long to sue in the right court. It didn’t matter that FloorPro had been pursuing payment by the government the whole time.

If subcontractor payment on government contracts is your problem, do not delay.  Contact Hindson & Melton LLC for representation.   The potential pitfalls are many, and our law firm can work with you to improve your chances of payment.
Karen S. Hindson – July 3, 2012

GAO has repeatedly sustained protests filed by SDVOSB (small disadvantaged veteran owned small business) or VOSB (veteran owned small business) concerns for the VA’s failure to follow mandatory procedures favoring SDVOSB and VOSB.  The Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. §§ 8127-8128 (2006), requires VA to determine whether two or more SDVOSB or VOSB concerns can meet its requirements at a reasonable price before proceeding with FSS procurements.

In Matter of Aldevra, B-406331, B-406391, 2012 CPD ¶ 144 (April 20, 2012), GAO sustained SDVOSB Aldevra’s protest against a VA solicitation for refrigerators and miscellaneous kitchen equiment for the North Florida/South Georgia Veterans Health System.  The agency had issued the FSS solicitations on an unrestricted basis to vendors holding FSS contracts.

Protester Aldevra is holding the VA’s feet to the fire.  A March 14, 2012, GAO bid protest was decided in favor of protester Aldevra for the same reason.  B-406205, 2012 CPD ¶ 112.

GAO recommended the agency conduct market research to determine whether there is a reasonable expectation that two or more SDVOSB or VOSB concerns can meet the agency’s needs at a reasonable price.  If so, the requirements should be solicited as SDVOSB or VOSB set-asides.

For more information about SDVOSB or VOSB, or for help with your government contract bid protest, contact Karen Hindson of Hindson & Melton LLC.

There is a wealth of information available on-line to those interested in bidding on Georgia state and local contracts.  The procurement manual explains the procedures used in state purchasing.  The Statewide Contract Requirements Pipeline and Status lists upcoming bidding opportunities and where they are in the procurement pipeline.  The Procurement Registry lists actual ongoing bids by state and local governments.  Local governments are encouraged to place their bid opportunities on the registry in order to maximize competition.

If you have questions about Georgia government contracts, contactAtlanta government contracts procurement attorney Karen S. Hindson

This bid protest jurisdiction of the Court includes reviews of agency corrective action taken in response to GAO protests.  The Court will review the action to determine whether it is reasonable under the circumstances.

Injunctive relief may be available in a bid protest case before the United States Court of Federal Claims, if:

• the plaintiff has succeeded on the merits of the case;
• the plaintiff will suffer irreparable harm if the court withholds injunctive relief,
• the balance of the hardships favors granting injunctive relief, and
• such relief would be in the public interest.   

See Great Lakes Dredge & Dock Co v United States, 60 Fed. Cl. 350 (2004) for a discussion of injunctive relief.

The standard of review the Court utilizes in reviewing agency action is whether it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  5 U.S.C. Section 706(2)(A)  This is known as the Administrative Procedures Act (APA) standard.  This is a very high bar for the plaintiff challenging agency action.  The Court can look to see whether the agency action lacked a rational basis or if the agency’s decision-making involved a violation of regulation or procedure.  Agency decisions are given the benefit of the doubt and a presumption of regularity.  The Court will not simply substitute its judgment for a reasonable agency decision, even if the Court would have reached a different decision.

If the Court finds that an agency acted without a rational basis, then it must decide whether the plaintiff/protestor was prejudiced by the agency’s conduct.  For pre-award bid protests, the Court would look to see whether there is a competitive injury.  For a post-award bid protest, the protester must prove there is a substantial chance it would have received the award absent the violation.

Contact government contract lawyer Karen S. Hindson to discuss your questions about bid protests.

On September 17, 2010, the Department of Defense posted on www.fedbizopps.gov a notice of intent to award a sole source contract – and the notice stated that any party challenging the sole-source contract should file a capability statement by September 22nd detailing its capability to fill the order. On September 25th, DoD awarded the sole-source contract to Science First.

On October 11th, Digitalis contacted its Congressman. On December 6th, it filed a post-award bid protest with the Court of Federal Claims. The government filed a motion to dismiss for lack of standing.

The Court of Claims held that Digitalis did not have standing to protest – because it did not have a substantial chance of winning the contract since Digitalis failed to submit a statement of capability during the prescribed 5 day period as required in the fedbizopps notice.

Only “interested parties” have standing to challenge government contract awards. But who is an interested party? An actual or prospective bidder whose direct economic interest would be affected by the award of the contract.

To prove a direct economic interest, a party must show it had a substantial chance of winning the contract. In order to protest – one who has not actually submitted an offer must be expecting to submit an offer before the closing date. If the date for receipt of proposals passes without submitting a bid, the opportunity to become a prospective bidder ends.

In this case, bids were not invited, but interested parties had a deadline to submit capability statements. Digitalis failed to submit a statement during the prescribed period, so it does not have the required direct economic interest to have standing to pursue a bid protest.

The case also includes a discussion of whether 5 days would be considered a sufficient time to require capability statements — without answering the question. The decision says the standard would be whether it is reasonable to expect contractors to see a notice and respond. However, since Digitalis did not have standing to protest, the Court did not decide this issue.

See more government contracts news. Contract Karen S. Hindson for more information.

2-year post-government employment activities restriction:  18 U.S.C. §207(a)(2) imposes a 2-year prohibition against a former employee making a communication intended to influence a United States government employee in connection with a particular matter, which the former officer or employee knows or reasonably should know was actually pending under his or her official responsibility as such officer or employee within a period of one year before the termination of his or her employment with the United States.

The Comptroller General, in Matter of: VSE Corporation, B-404833.4 (November 21, 2011), sustained a protest challenging the Army’s termination of VSE’s contract based on a contracting officer’s determination that an appearance of impropriety had been created by the protester’s hiring of a former government employee as a consultant.  GAO examined the contracting officer’s findings with regard to the post-employment activities of the individual in question, and found the contracting officer’s findings to be unreasonable.  “A finding that an actual or apparent impropriety was created by a firm’s hiring of a former government employee must be based on hard facts, rather than suspicion or innuendo, which demonstrate that the former employee could have conferred an unfair competitive advantage to that firm.”

The GAO decision in VSE Corporation includes a good discussion of the post-government employment activities rules and appearance of impropriety analysis.  For more information contact Karen Hindson.