GOVERNMENT CONTRACTS
Small Business Administration (SBA) Press Release: SBA Administrator Guzman Releases Statement on the Reopening of the 8(a) Application Portal
On Friday, September 29, U.S. Small Business Administrator Isabella Casillas Guzman released the following statement on the reopening of the application for the 8(a) Business Development Program (8(a) Program). Read more here.
Department of Defense (DOD) Press Release: DOD and Small Business Administration (SBA) Roll Out the Small Business Investment Company Critical Technologies (SBICCT) Initiative
Secretary of Defense Lloyd J. Austin III and SBA Administrator Isabella Casillas Guzman announced the rollout of the SBICCT Initiative, a joint effort between the SBA and DOD to increase private capital investment in critical technologies that strengthen our economic and national security. SBICCT is the first initiative under the historic SBA-DOD partnership, launched by the Secretary and the Administrator in December 2022, to grow private sector investment in component-level technologies and production processes vital to US national security interests. Read more here.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Interim Rule: Implementation of Federal Acquisition Supply Chain Security Act Orders
DOD, GSA, and NASA are issuing an interim rule amending the FAR to implement supply chain risk information sharing and exclusion or removal orders consistent with the Federal Acquisition Supply Chain Security Act of 2018 and a final rule issued by the Federal Acquisition Security Council. The Interim Rule is available here and will be effective and applicable December 4, 2023.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Final Rule: 8(a) Program
DOD, GSA, and NASA are issuing a final rule amending the FAR to implement regulatory changes made by the Small Business Administration to update and clarify requirements associated with the 8(a) program. SBA revised the 8(a) program regulations to more clearly articulate SBA’s intent about certain aspects of the 8(a) program to eliminate confusion and decrease burdens on procuring activities and 8(a) participants. The Final Rule is available here and will be effective November 6, 2023.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Proposed Rule: Re-representation of Size and Socioeconomic Status
DOD, GSA, and NASA are proposing to amend the FAR to implement regulatory changes made by the Small Business Administration (SBA), Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments, to order-level size and socioeconomic status re-representation requirements. The Proposed Rule is available here. Comments are due November 28, 2023.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Proposed Rule: Protests of Orders Set Aside for Small Business
DOD, GSA, and NASA 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 (MACs). This FAR case has been contemplated since 2021 and published four times in the Unified Agenda. This is anticipated, of course, to impact small businesses. The Proposed Rule is available here. Comments are due December 4, 2023).
Department of Defense (DOD) Proposed Rules: Defense Federal Acquisition Regulation Supplement (DFARS): Use of Fixed-Price Contracts for Certain Major Defense Acquisition Programs
DOD is proposing to revise the DFARS to implement section 808 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023. Section 808 amends section 818 to limit the number of low-rate initial production lots associated with a major defense acquisition program to be procured to no more than one when the milestone decision authority authorizes the use of a fixed-price type contract at Milestone B and the scope of the work includes both development and low-rate initial production. This limitation may be waived. The Proposed Rule is available here. Comments are due November 28, 2023.
Government Accountability Office (GAO) Report: Small Business Research Programs: Most Agencies Allow Applicants to Define Needs and Propose Solutions
The SBIR and STTR Extension Act of 2022 includes provisions for GAO to review agencies’ use of open topics. This report examines (1) the extent to which agencies have used open topics, (2) how open and conventional topic awards compare, and (3) agency considerations about which topic type to use. Seven of eleven federal agencies participating in the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs used open topics from fiscal years 2019 through 2021. In response to solicitations with open topics, small businesses submit proposals that both define research needs and propose solutions to address them. The remaining four agencies only used conventional topics. For these topics, agencies define needs and small businesses propose solutions. Officials from the eleven agencies said they expect to continue their existing use of topic types in future years. Read more here. The full Report is available here. Highlights are available here.
Government Accountability Office (GAO) Report: Federal Contracting: Agencies Can Better Monitor E-Verify Compliance
To confirm their employees’ eligibility to work in the U.S., most federal contractors must use the E-Verify program. The Office of Management and Budget (OMB) expects agencies to ensure that their contractors comply, but not all agency officials know of this expectation. Also, the Department of Homeland Security used to give agencies a quarterly list of contractors enrolled in and using E-Verify — but discontinued this report last year due to data accuracy issues. Without clear expectations and useful data, agencies may not be checking their contractors’ compliance with this requirement. GAO is making eight recommendations, including that OMB clarify agency responsibilities for monitoring contractor compliance with the E-Verify clause, and that DHS implement a process to refer contractors with terminated accounts to appropriate agency officials. DOD, DHS, HHS, and OMB concurred with the recommendations. The full report is available here. Highlights is available here.
Government Shutdown Averted with Little Time to Spare As Biden Signs Funding Before Midnight, Federal News Network
The threat of a federal government shutdown suddenly lifted late Saturday as President Joe Biden signed a temporary funding bill to keep agencies open with little time to spare after Congress rushed to approve the bipartisan deal. The package drops aid to Ukraine, a White House priority opposed by a growing number of GOP lawmakers, but increases federal disaster assistance by $16 billion, meeting Biden’s full request. The bill funds the government until November 17. Read more here.
Small Business Administration (SBA) Interim Final Rule Concluded Regulatory Review: Debt Refinancing in the 504 Loan Program
The Office of Management and Budget (OMB) concluded its regulatory review on September 29, 2023, which was pending since August 23, 2023. OMB concluded its review consistent with change, meaning that the OMB had revisions to the Interim Final Rule and sent the regulation back to the SBA to revise its regulation before publishing in the Federal Register. This was published five times in the Unified Agenda and is significant. This interim final rule implements section 328 of the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act, which revises the requirements for refinancing debt in the 504 Loan Program. More information is available here.
General Services Administration (GSA), Proposed Rule Pending Regulatory Review: Federal Travel Regulation (FTR): FTR Case 2022-04, Relocation Allowance—Miscellaneous Expenses Allowance
GSA is proposing to amend the FTR by increasing the set lump sum rate amount to be paid for the relocation miscellaneous expenses allowance (MEA) when the employee does not itemize and document actual relocation miscellaneous expenses. The proposed rule would also update the examples of the types of expenses that MEA may or may not cover. This rule is anticipated to impact small businesses. Read more here.
Upcoming Government Contracts Presentations
WEBINAR: Fraud in Federal Contracting, TargetGov Meet the Experts, October 10, 2023, Isaias “Cy” Alba, IV. Read more here.
CONFERENCE: Small Business Compliance with the FAR, October 12, 2023, Meghan F. Leemon. Read more here.
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
DOL Increases Hourly Minimum Wage to $17.20 for Federal Contractors Starting January 1, 2024, October 4, 2023, Nichole Atallah
Beginning on January 1, 2024, Executive Order 14026 (Order) will raise the minimum wage for workers performing work on or in connection with covered contracts to from $16.20 to $17.20 per hour, a second year of a significant adjustment to the minimum wage for service and construction workers doing work on federal projects. Government contractors in the service and construction sectors should evaluate how the minimum wage increase will affect their operations and pricing strategies when bidding on new government contracts. Read more here.
Class Deviation: Implementation of Injunction of Executive Order 14026, Increasing the Minimum Wage for Federal Contractors
Effective immediately, contracting officers shall not use the clause at Federal Acquisition Regulation (FAR) 52.222-55, Minimum Wages for Contractor Workers Under Executive Order 14026, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, with the States of Texas, Louisiana, or Mississippi or agencies of those States. Contracting officers also shall not use the clause in any extension or renewal of an existing contract or exercise of an option with the States of Texas, Louisiana, or Mississippi, or agencies of those States. The full Memorandum is available here.
National Aeronautics and Space Administration (NASA) Proposed Rule: Federal Acquisition Regulation Supplement (NFS): Removal of Total Compensation Plan Language
NASA is proposing to amend the NFS by removing NFS 1831.205-671, Solicitation provision, and NFS 1852.231-71, Determination of Compensation Reasonableness, from the NFS. NASA decided these provisions are unnecessary as they exceed the scope requirements adequately covered in FAR 52.222-46, Evaluation of Compensation for Professional Employees. Currently, NFS requires an evaluation for all labor categories and periodic review of total compensation plans after contract award for cost reimbursement contracts (at least every three years) to evaluate the reasonableness of compensation for all proposed labor categories in service contracts. NASA decided to rely on FAR 52.222-46, agencywide templates, and instructions, to ensure consistency in the data provided to NASA and later evaluations as well as ensuring NASA continues to pay fair and reasonable wages. The Proposed Rule is available here. Comments are due December 1, 2023.
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
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Proposed Rule: Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems (FIS)
DOD, GSA, and NASA are proposing to amend the FAR to partially implement an Executive Order to standardize cybersecurity contractual requirements across Federal agencies for unclassified FIS, and a statute on improving the Nation’s cybersecurity. The Proposed Rule is available here. Comments are due December 4, 2023).
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Proposed Rule: Cyber Threat and Incident Reporting and Information Sharing
DOD, GSA, and NASA are proposing to amend the FAR to partially implement an Executive order on cyber threats and incident reporting and information sharing for Federal contractors and to implement related cybersecurity policies. The Proposed Rule updates FAR 2.101, definition of “information and communication technology” and proposes new requirements relating to cybersecurity. The Proposed Rule is available here. Comments are due December 4, 2023.
Government Accountability Office (GAO) Press Release: Finding Federal Cybersecurity Weaknesses: GAO Issues New Cybersecurity Guide
As the risks to IT systems supporting the federal government and the nation’s critical infrastructure increase and security threats continue to evolve, GAO issued a new guide for conducting cybersecurity performance audits. The GAO Cybersecurity Program Audit Guide provides guidance to help the Congress, federal agencies, state and local auditors, the private sector and non-profits identify cybersecurity program weaknesses and develop appropriate recommendations for corrective actions. Read more here.
White House to Issue ‘Broad’ Executive Order Addressing AI Risks and Standards, NextGov/FCW
Top science advisor Arati Prabhakar said the forthcoming executive order will address a wide swath of potential AI dangers. Read more here.
House Passes Bill to Limit Education Requirements for Federal Cyber Roles, Government Executive
The push for skills-based hiring is already underway in the executive branch, where the Office of Personnel Management is reworking qualification standards for some government jobs. The House of Representatives passed a bipartisan bill Monday meant to limit the requirement of minimum educational attainment for cybersecurity jobs in the federal government. Read more here.
FALSE CLAIMS ACT / AUDITS & INVESTIGATIONS
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Final Rule: Whistleblower Protection for Contractor Employees
DOD, GSA, and NASA are issuing a final rule amending the FAR to implement an act to enhance whistleblower protection for contractor employees. The rule makes permanent the protection for disclosure of certain information. It also clarifies that the prohibition on reimbursement for legal fees accrued in defense against reprisal claims applies to subcontractors, as well as contractors. The Final Rule is available here and will be effective November 6, 2023.
