Construction Law Toolbox : Mississippi Construction Lawyer & Attorney : Robinson Biggs Ingram Solop & Farris Law Firm : MS & Southeast Construction Law Toolbox

The Mississippi Department of Finance and Administration, Bureau of Building, Grounds and Real Property Management is currently updating its BOB Construction Manual.  This is your opportunity to participate in the process.  If you want to be heard, you should email Glenn Kornbrek, the Assistant Director for the Bureau of Building, Grounds and Real Property Management (KornbrG@dfa.state.ms.us).  Mr. Kornbrek’s telephone number is (601) 359-3894.

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The General Accountability Office ("GAO") considers protest against the solicitation and award of Federal contracts. Generally, under its "bid protest" function, it handles protests which contest the competitive nature of the terms of a solicitation and its compliance with procurement law and regulation and it handles protests against the propriety of the award of contracts.

Many contractors choose the GAO, as opposed to the Court of Federal Claims, because the laws and regulations permitting the right to protest Federal procurements to the GAO require the stay against a protested procurement action, provided the protest is timely filed. No other forum allows for this "automatic stay". Also, it is one of the least expensive and quickest fora for obtaining a decision. Decisions are generally issued within 120 days from the date of protest.

2008 was one of GAO’s busiest protest years. Over 1600 cases were filed, and the GAO closed over 1500 of them. Although the number of actions filed at the GAO was up 17% from the previous fiscal year, the percentage of sustained actions (actions in favor of the protester) fell from 29% to 21%.

The GAO was originally called the General Accounting Office. Although "Accounting" was changed to "Accountability" in 2004, it’s purpose remains the same: "investigate, at the seat of government or elsewhere, all matters relating to the receipt, disbursement, and application of public funds, and shall make to the President...and to Congress...reports (and) recommendations looking to greater economy or efficiency in public expenditures". It is an investigative arm of Congress.

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The Director of Defense Procurement has suspended use of the price evaluation preference for Small Disadvantaged Businesses ("SDBs") for a one-year period beginning March 13, 2009.  By law, the ten percent (10%) price evaluation adjustment in favor of SDBs must be suspended for a 1-year period in which the DoD meets or exceeds the 5% goal set for contract awards to SDBs.  In Fiscal Year 2008, the 5% goal was exceeded.  Therefore, during the period March 13, 2009 through March 12, 2010, DoD solicitations will not include any provision allowing application of the price evaluation preference for SDBs in making award decisions.  Notice of the 1-year suspension was published in the Federal Register on February 19, 2009. 

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If President Obama’s first steps into federal procurement policy are any indication, his will be a pro-labor administration. On January 30, 2009, Obama issued Executive Orders he believes will "level the playing field for workers and the unions that represent their interests". One Executive Order requires successor service contractors to hire employees of the predecessor contractor and another requires contractors to notify their employees that they have the right to unionize and bargain collectively. A third Executive Order prevents federal contractors from being reimbursed for expenses incurred for efforts intended to influence workers' decisions to form unions or engage in collective bargaining. Failure to comply could result in debarment of a contractor.

The Executive Order requiring successor service contractors to offer a job to the employees of the former contractor does not apply to managerial and supervisory employees. It also does not apply to services contract under the simplified acquisition threshold. However, it would require that employees of the predecessor contractor be given a "right of first refusal" that would be no less then 10 days, that is, the employee would have at least 10 days to decide whether to accept a position with the successor contractor. The primary thrust of the Executive Order is to protect the "rank and file" federal contractor employees.

The Executive Order prohibiting contractor from being reimbursed for expenses incurred to influence workers’ decision concerning unionization is opposed by the U.S. Chamber of Commerce. The Executive Order presumes that the expenses contractors have incurred and which the administration wants to prohibit are expenses discourage unionization. However, the National Labor Relations Act has been interpreted by the Supreme Court to require uninhibited information concerning unionization, which would include information both on the right to unionize and the right not to unionize. The U.S. Chamber of Commerce views this Executive Order as an infringement on employers’ free speech rights.

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The Mississippi  courts will enforce forum selection clauses when the intent is clear and unequivocal.  When confronted with challenges to the enforcability of a forum selection clause, the  first step in analysis is whether it is mandatory or permissive. Titan Indemnity Company v. Hood, 895 So.2d 138, 146-47 (Miss. 2005) (.pdf). The determination of what language is considered mandatory as opposed to permissive was carefully examined and discussed in Bently v. Mutual Benefits Corp., 237 F.Supp.2d 699 (S.D. Miss. 2002) (.pdf). In Bently, the district court was tasked with determining whether to enforce a forum selection clause with language strikingly similar to the language found in SCP’s terms and conditions. Its analysis followed the two-step inquiry articulated by the Fifth Circuit in Caldas & Sons, Inc. v. Willingham, 17 F.3d 123 (5^th Cir. 1994) (.pdf). As to whether the forum selection clause was mandatory or permissive, the district court reasoned that "a mandatory forum selection clause has express language limiting the action to the courts of a specific locale which is clear, unequivocal and mandatory." Bently, 237 F.Supp.2d at 702 (emphasis added). The district court when on to cite a number of decisions discussing the importance of limiting language in the forum selection clause to obviate any uncertainty with regard to the exclusivity of the chosen forum.

If the forum selection clause is considered mandatory, the second step in the legal analysis requires the court to consider (1) whether "Its incorporation into the contract was the result of fraud, undue influence or overweening bargaining power; (2) [t]he selected forum is so gravely difficult and inconvenient that the resisting party will for all practical purposes be deprived of its day in court; or (3) [t]he enforcement of the clause would contravene a strong public policy of the forum in which the suit is brought, declared by statute or judicial decisions." Titan Indemnity Company v. Hood, 895 So.2d 138,146-47 (Miss. 2005).

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