In latest the Weekly Wright Report:

• • What? New FMLA Forms? When Did That Happen? – read now
  • Protesting The Space Between – read now

What? New FMLA Forms? When Did That Happen?

It’s hard for employers to keep up with anything other than COVID-19 compliance guidelines these days, so it may have flown under your radar that in June 2020, the Department of Labor (DOL) revised several of its forms to help employers manage leave under the Family Medical Leave Act (FMLA).  While these forms may be used at the option of the employer, the DOL has conveniently crafted them to comply with the FMLA and made them electronically fillable PDFs that can be saved electronically.

Here are links to those forms found on the DOL’s site.

Certification of Healthcare Provider for a Serious Health Condition

• Employee’s serious health condition, form WH-380-E– use when a leave request is due to the medical condition of the employee.
• Family member’s serious health condition, form WH-380-F– use when a leave request is due to the medical condition of the employee’s family member.

Certification of Military Family Leave

• Qualifying Exigency, form WH-384– use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
• Military Caregiver Leave of a Current Servicemember, form WH-385– use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
• Military Caregiver Leave of a Veteran, form WH-385-V– use when requesting leave to care for a family member is who a covered veteran with a serious injury or illness.

If you have employees requesting paid leave under the expanded FMLA leave pursuant to the Families First Coronavirus Relief Act (FFCRA) to care for children whose schools are closed or childcare is not available due to COVID-19, reach out to me for a separate form to track those cases.

Protesting The Space Between

by Michael Stover

In a recent decision, the Government Accountability Office (“GAO”) clarified that certain events that might occur in that space of time between when a proposal is submitted and when an award is made can be critical to consideration of the proposal. In Matter of: M.C. Dean, Inc., B-418553, M.C. Dean (“Dean”), an unsuccessful bidder, protested the award of a contract by the National Security Agency (NSA) to PTSI Managed Services Inc. (“PTSI”) to provide maintenance, installation, and distribution services for the agency’s comprehensive enterprise class physical security system. Dean challenged the agency’s evaluation on many grounds, including that PTSI was aware that its proposed program manager, identified in PTSI’s response to the RFP as one of the key personnel, became unavailable prior to award and remained unavailable to perform on the contract after award. In considering the protest, the GAO noted that offerors are obligated to advise agencies of material changes in proposed staffing after submission of proposals.

However, the obligation to notify does not arise unless the offeror has actual knowledge of the employee’s unavailability. The GAO observed, “[t]his premise is grounded in the notion that a firm may not properly receive award of a contract based on a knowing material misrepresentation in its proposal.” When an agency is notified of the withdrawal of a key person, it has two options: (1) evaluate the proposal as submitted without considering the resume of the unavailable employee (where the proposal will likely be rejected as technically unacceptable for failing to meet a material requirement); or (2) open discussions to permit the offeror to amend its proposal.

In this protest, Dean asserted that PTSI’s proposal was technically unacceptable in part because the proposed program manager was denied a security clearance for the project after the proposal had been made, but before the award. PTSI was aware of the denial of the security clearance and that no appeal was filed relating to the denial before the award. Dean maintained that once the program manager was denied a security clearance, PTSI had actual knowledge prior to award that the program manager was unavailable to perform on the contract, and therefore was required to notify the agency of this change in its proposal. The RFP required that the program manager have a security clearance to access classified information specific to the contract.

The agency argued that the program manager had not yet exhausted his legal remedies with respect to the adjudication of his NSA access at the time the contract was awarded. The GAO rejected that defense noting that PTSI had merely stated that it “understood” that the program manager was going to appeal the security clearance denial. There was nothing in the record addressing whether or why PTSI believed an appeal would be successful, much less that an appeal would be successfully adjudicated prior to contract award. In fact, the program manager never actually appealed the denial. Thus, the GAO held that “the fact that the program manager could appeal the denial does not, by itself, excuse PTSI from having actual knowledge of the unavailability of its proposed program manager.” The GAO also rejected the agency’s argument that it did not matter whether the program manager was unavailable because the agency’s reliance on the program manager’s resume was not material to its evaluation. The GAO stated that the agency’s argument conflates the standard for assessing whether a “bait and switch” occurred with the requirement for offerors to notify the agency when proposed key personnel become unavailable prior to award. Where an offeror has actual knowledge that a proposed key person has become unavailable before award, they are required to notify the agency of this development. “It is irrelevant whether the program manager’s resume was material to the agency’s evaluation of PTSI’s proposed key personnel.” Accordingly, the protest was sustained.

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