GOVERNMENT CONTRACTS
National Aeronautics and Space Administration (NASA) Final Rule: NASA Mentor-Protégé Program
NASA is finalizing amendments to the NASA Federal Acquisition Regulation Supplement to reflect updates to NASA’s Small Business Mentor Protégé Program (MPP). Amendments include the requirement of Small Business Specialists’ concurrence on the signed letter of endorsement; requirements associated with credit received towards subcontracting goals; changes to the MPP reporting requirement from semi-annually to annually and editorial changes for clarity. NASA also proposed amendments to reflect the annual negotiation of its small business percentage goals. Finally, these revisions will emphasize collaboration among representatives from the Office of Small Business Programs, Office of Procurement, and Program Offices to reduce barriers to entry and to opportunities for all small business concerns and Historically Black Colleges and Universities or Minority Institutions. The Final Rule is available here and will be effective November 9, 2023.
Federal Acquisition Regulation (FAR): Protests of Orders Set Aside for Small Business
Department of Defense, General Services Administration (GSA), and National Aeronautics and Space Administration are proposing to amend the FAR to implement regulatory changes made by the Small Business Administration to update and clarify requirements associated with size and/or socioeconomic status protests in connection with multiple-award contract set-asides and reserves and orders placed under multiple-award contracts. Interested parties should submit written comments on or before December 4, 2023, to be considered in the formation of the final rule. Read more here.
Small Business Administration (SBA) Final Rule: Credit for Lower Tier Subcontracting and Other Amendments
SBA is amending its regulations to implement provisions of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020. The final rule will permit a prime contractor with an individual subcontracting plan to apply credit for subcontracts to small businesses at lower tiers toward its subcontracting goals. To do so, the prime contractor would incorporate the lower-tier subcontracting performance into its subcontracting-plan goals. The Final Rule is available here and is effective as of October 11, 2023.
Small Business Administration (SBA) Notice/Rule: ALP Express Pilot Program
SBA is introducing a new pilot loan program— Accredited Lenders Program (ALP) Express Pilot—to provide to Certified Development Companies participating in the ALP increased delegated authority for 504 loans of $500,000 or less. These increased delegated authorities were previously authorized under the Economic Aid to Hard-hit Small Businesses, Nonprofits, and Venues Act, but they expire on September 30, 2023. SBA will evaluate the use of the ALP Express Pilot and will make a recommendation to Congress as to whether these increased authorities should become permanent. SBA will limit the number of ALP Express Pilot loans to not more than fifteen percent (15%) of the total dollar amount of 504 loans made in any fiscal year. The pre-published Notice is available here. The ALP Express Pilot is available as of October 1, 2023, for two years. Comments will be due 60 days after publication in the Federal Register (approximately December 5, 2023).
Small Business Administration (SBA) Final Rule: Debt Refinancing in the 504 Loan Program
SBA is adopting with changes the interim final rule published in the Federal Register on July 29, 2021. That interim final rule implemented section 328 of the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act, which modified the requirements for refinancing debt in the 504 Loan Program, as set forth in section 521(a) of title V of division E of the Consolidated Appropriations Act, 2016 and section 502(7) of the Small Business Investment Act of 1958. The modifications included: increasing the amount of existing indebtedness that may be refinanced for 504 debt refinancing involving expansions; and for 504 debt refinancing not involving expansions, removing two limitations on the program, reinstating an alternate job retention standard for the refinancing project, revising the definition of qualified debt, and removing the prohibition against Certified Development Companies (CDCs) participating in the Premier Certified Lenders Program using their delegated authority to make these loans. The Final Rule is available here and will be effective November 13, 2023.
Upcoming Government Contracts Presentations
TRAINING: VIP START: Legal Considerations: How Best to Structure Your Company as a Federal Contractor, October 24, 2023, Isaias “Cy” Alba, IV. Read more here.
WEBINAR: Keys to Preparing a Winning Bid for DHS’s $5.6 Billion PACTS III IDIQ, October 26, 2023, Isaias “Cy” Alba, IV. Read more here.
WEBINAR: Joint Venture and Mentor-Protege Bidding Strategies (2023), November 9, 2023, Peter B. Ford and Meghan F. Leemon. Read more here.
LABOR & EMPLOYMENT
Steps for Government Contractors on the OFCCP’s Audit List, Law360
On September 8, 2023, the Office of Federal Contract Compliance Programs released a list of 1,000 supply and service federal contractors selected to receive advance audit notices known as corporate scheduling announcement letters, or CSALs. Read more here (subscription required).
Underfunding Presents Operations and Cybersecurity Challenges for FLRA In Fiscal 2024, OIG Says, Government Executive
The independent agency tasked with overseeing labor issues within the federal government is currently operating at the same budget level it was 20 years ago, while its unfair labor practice case load has risen 62% in the last four years. Read more here.
OPM Extends Flexible Hiring of Military Spouses, Government Executive
The Office of Personnel Management implemented new regulations extending a temporary program designed to make it easier for federal agencies to hire the spouses of active-duty military service members for an additional five years. Read more here.
OPM Reminds Agencies of New Telework Reporting Requirements, Government Executive
As agencies prep to increase in-person work this fall, the federal government’s HR agency is calling on officials to collect better data on telework and remote work usage in their workplaces. Read more here.
OPM Announces Expansion of ‘Continuous Vetting’ Security Clearance Process for Current Feds, Government Executive
After a successful pilot, the federal government’s HR agency and the Defense Counterintelligence and Security Agency set a goal of enrolling all employees in non-sensitive public trust positions in the new process for reviewing existing security clearances by the end of fiscal 2024. Read more here.
2nd Circuit OT Ruling Guides on Pay for Off-The-Clock Work, Law360
Many wage-and-hour lawsuits involve off-the-clock claims: allegations that employees performed work outside their recorded working hours for which they were not compensated. One issue that often arises in such cases is whether the employer is liable for work not recorded by employees in its timekeeping system. One recent U.S. Court of Appeals for the Second Circuit decision concerning this issue provides guidance on whether and when employers must compensate employees for such unrecorded work time. Read more here (subscription required).
Starbucks Must Give DOL Info On Its Expenses Fighting Union, Law360
Starbucks must tell the U.S. Department of Labor how much money it spent fighting baristas’ union campaign early on, a Washington federal judge ruled, agreeing with the agency that the information is necessary to see if Starbucks complied with the Labor-Management Reporting and Disclosure Act. Read more here (subscription required).
Upcoming Labor & Employment Presentations
TRAINING: VIP START: Labor Rules & Regulations: Federal Market Compliance, October 25, 2023, Nichole D. Atallah. Read more here.
WEBINAR: Construction Contractors and the New Davis-Bacon Act Rule: Increased Costs, Heavy Regulatory Burden, October 31, 2023, Sarah L. Nash. Read more here.
CYBERSECURITY & DATA PRIVACY
New Rule Would Set Governmentwide Cyber Standards for Contracts Involving Federal Information Systems (FIS), FedScoop
The Biden administration is proposing a new standardized set of cybersecurity procurement requirements across the federal government for contractors that work with unclassified federal information systems. “By standardizing a set of minimum cybersecurity standards to be applied consistently to FISs, the proposed rule would ensure that such systems are better positioned in advance to protect from cyber threats,” the new rule states. Read more here.
How A Cybersecurity Proposal Could Expand FCA Liabilities, Law360
Newly proposed cybersecurity regulations imposing new reporting and compliance requirements may expand the ways in which federal contractors, including companies that aren’t currently subject to such requirements, could face liabilities under the False Claims Act, experts say. Read more here (subscription required).
Cybersecurity & Infrastructure Security Agency (CISA) Press Release: CISA, Government, and Industry Partners Publish Fact Sheet for Organizations Using Open Source Software (OSS)
Fact sheet provides software security challenges and recommendations to improve security and risk management of OSS use at operational technology vendors and critical infrastructure facilities. This guidance will promote an improved understanding of and highlight best practices and considerations for the secure use of OSS in OT/ICS environments. Read more here.
