Weekly Update for Government Contractors and Commercial Businesses – July 2021 #2

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WEBINAR: Risk Prevention Strategies: The High Cost of Employee Misclassification—What Employers Should Know, August 4, 2021, Sarah Nash and Matthew Kreiser. Read more here.

LABOR & EMPLOYMENT

DOL Announces Proposed Rulemaking to Increase Wages for Workers on Government Contracts
The Department of Labor (DOL) announced a Notice of Proposed Rulemaking to establish standards and procedures to implement and enforce Executive Order 14026, “Increasing the Minimum Wage for Federal Contractors,” (EO), which was signed by President Biden on April 27, 2021. The EO seeks to raise the hourly minimum wage paid to workers performing work on or in connection with covered federal contracts to $15.00 per hour beginning January 30, 2022, and, annually thereafter, to an amount determined by the Secretary of Labor. Comments on DOL’s proposed rule are due by August 23, 2021. Read more here. Related reporting from Bloomberg Law is available here.

Upcoming Labor & Employment Presentations

WEBINAR: Risk Prevention Strategies: The High Cost of Employee Misclassification—What Employers Should Know, August 4, 2021, Sarah Nash and Matthew Kreiser. Read more here.

LITIGATION & DISPUTE RESOLUTION

What Does Bill Cosby’s Overturned Conviction Mean for Your Fifth Amendment Rights Against Self-Incrimination? July 14, 2021, Megan Benevento
The Supreme Court of Pennsylvania recently overturned Bill Cosby’s 2018 conviction for crimes of sexual assault. Most have focused on the justness of this outcome. But the court’s 79-page opinion also has implications for how witnesses in civil cases navigate the potential risk of self-incrimination—including witnesses testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6). Read more here.

Upcoming Litigation & Dispute Resolution Presentations

WEBINAR: Risk Prevention Strategies: The High Cost of Employee Misclassification—What Employers Should Know, August 4, 2021, Sarah Nash and Matthew Kreiser. Read more here.

GOVERNMENT CONTRACTS

CIO-SP4 Amendment 7: Major Changes for Small Business and Large Business Prime / Subcontractor Teams, July 20, 2021, Cy Alba and Meghan Leemon
The National Institutes of Health Information Technology Acquisition and Assessment Center issued major changes to the Chief Information Officer-Solutions and Partners 4 (CIO-SP4) Request for Proposals (RFP) under Amendment 7 to the RFP. These changes will impact both small and large business teams who intend to rely on subcontractors (i.e. FAR 9.601(2) Contractor Team Arrangement members). Read more here.

DOD Cancels $10 Billion JEDI Contract, Takes New Direction on Cloud Procurement, July 13, 2021, Lauren Brier
On July 6, 2021, the Department of Defense (DOD) canceled its $10 billion Joint Enterprise Defense Infrastructure (JEDI) cloud procurement, close to two years after issuing the award to Microsoft and merely two months after the U.S. Court of Federal Claims issued a sealed decision denying the Department of Justice’s and Microsoft’s motions to dismiss Amazon Web Services’ bid protest challenging the award. This end to the JEDI saga will likely shape the decisions of other agencies as they approach future cloud procurements, impacting cloud vendors for years to come. Read more here.

VA Reforming EHR Deployment Following 12-Week Review
FedScoop reported that the Department of Veterans Affairs (VA) will restructure how it implements its electronic health records modernization program following a twelve-week strategic review of the $16 billion program. User training is a major theme of many of the changes that need to be made to improve the way clinicians and patients use the new system. Also included in those changes will be the introduction of new virtual testing environments—“sandbox” deployments of purely technical changes to improve underlying information technology infrastructure that should not impact user experience. Training and testing issues led to a delay in the initial go-live of the system in February and were the subject of multiple government watchdog reports. Read more here.

NIST Outlines Security Measures for Software Use and Testing Under Executive Order
Government Executive reported that the National Institute of Standards and Technology (NIST) met crucial obligations laid out for it in Executive Order 14028, “Executive Order on Improving the Nation’s Cybersecurity,” (EO) signed by President Biden on May 12, 2021, with the publication of documents recommending minimum standards for the verification and use of software in the federal government. The EO tasked NIST with identifying security measures for the use of critical software and recommending minimum standards for software vendors to test their products before offering them to the government by July 11, 2021. NIST was also responsible for defining “critical software.” NIST issued a bulletin linking to the documents on July 9, 2021. The ball now moves to the court of the Office of Management and Budget (OMB). Within 30 days of NIST’s guidelines being published, OMB must require federal agencies to implement the security measures NIST outlined for use of critical software, including through procurements. Read more here.

GSA 8(a) STARS III Contract Gets New Designation
The General Services Administration (GSA) reported that the 8(a) STARS III Governmentwide Acquisition Contract has achieved the designation of “Best In Class” (BIC) by the Office of Management and Budget. The government-wide acquisition BIC designation denotes contracts that meet rigorous category management performance criteria.

The BIC designation:

  • allows acquisition experts to take advantage of pre-vetted, government-wide contract solutions;
  • supports a government-wide migration to solutions that are mature and market-proven;
  • assists in the optimization of spend within the government-wide category management framework; and
  • increases the transactional data available for agency-level and government-wide analysis of buying behavior.

Read more here.

FedRAMP Releases Updated OSCAL Template & Tools
The General Services Administration (GSA) reported that—as a follow up to the Federal Risk and Authorization Management Program’s (FedRAMP) June announcement of the release of the Open Security Controls Assessment Language (OSCAL) 1.0.0 on GitHub—FedRAMP has published resources to aid stakeholders and vendors in the digitization of FedRAMP authorization package content, which is located on the FedRAMP Automation GitHub Repository. Together, these resources enable FedRAMP stakeholders and tool vendors to develop OSCAL-enabled FedRAMP authorization packages. Read more here.

Agency Reuse of FedRAMP-Approved Cloud Products Climbs with Automation
FedScoop reported that agency reuse of cloud products authorized by the Federal Risk and Authorization Management Program (FedRAMP) continues to increase, with the program management office (PMO) automating parts of the process in Fiscal Year 2021. Reuse of security authorization packages is up 85% compared to pre-pandemic levels, and agency demand for cloud products grew 60% in the first half of Fiscal Year 2021 compared to the first half of Fiscal Year 2020. Increases in reuse and demand coincide with the FedRAMP PMO’s work with the National Institute of Standards and Technology to standardize authorization packages and automate their review with the Open Security Controls Assessment Language. Read more here.

Treasury Updates Prompt Payment Interest Rates Related to Contract Disputes Act
The Department of the Treasury (Treasury) published a notice of prompt payment interest rate related to the Contract Disputes Act. Per the Secretary of the Treasury, for the period beginning July 1, 2021, and ending December 31, 2021, the prompt payment interest rate is 1 1/8 per centum per annum. An agency that has acquired a property or service from a business concern and has failed to pay for the complete delivery of the property or service by the required payment date must pay the business concern an interest penalty. The Contract Disputes Act and the Prompt Payment Act provide for the calculation of interest due on claims at a rate established by the Secretary of the Treasury. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: New Government Contractor Hazards, August 9, 2021, Cy Alba and Anna Wright. Read more here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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