Weekly Update for Government Contractors and Commercial Businesses – February 2021 #3

PilieroMazza PLLCGOVERNMENT CONTRACTS

SBA Takes Steps to Address PPP Validation Error Problems, February 12, 2021, Cy AlbaGOVERNMENT CONTRACTS

On February 10, 2021, the Small Business Administration (SBA) announced new policy changes to the Paycheck Protection Program (PPP) meant to address an ongoing issue loan applicants face regarding validation error codes. These error codes serve as validation checks to combat fraud and prevent improper loans from being issued to ineligible businesses. However, many eligible businesses have received such error codes during the application and forgiveness process, delaying necessary economic relief. SBA’s new changes grant additional authorities to lenders for borrowers experiencing validation error code challenges. Read more here.

The First 100 Days: President Biden’s Buy American Executive Order, What Government Contractors Need to Know, February 11, 2021, Jackie Unger and Anna Sullivan
President Biden signed an executive order on January 25, 2021, titled “Ensuring the Future Is Made in All of America by All of America’s Workers.” Referring broadly to all statutes, regulations, rules, and executive orders that relate to Buy America, Buy American, or domestic sourcing requirements as “Made in America Laws,” the executive order expresses the new administration’s policy that the U.S. government should maximize the use of domestic products and services and “should, whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.” This new executive order was issued just days after the Federal Acquisition Regulatory Council finalized a rule to increase the Buy American Act domestic content requirements. With the executive order directing significant changes to federal procurement practices under the Made in America Laws, we have highlighted key implications for government contractors. Read more here.

The First 100 Days: President Biden’s Plan to Secure a Sustainable Public Health Supply Chain, 3 Tips for Government Contractors, February 10, 2021, Christine Fries
In November, we published a post on potential Biden administration use of the Defense Production Act of 1950 (DPA) in response to the COVID-19 pandemic. In his first week in office, President Biden invoked the DPA and signed an executive order to secure a sustainable public health supply chain. The executive order gives insight into how the Biden administration may use the DPA going forward. The following explains the Biden administration’s goals for pandemic preparedness and potential DPA use and identifies key considerations for government contractors. Read more here.

NIST Releases New Cybersecurity Guidelines
The National Institute of Standards and Technology (NIST) released a special publication, NIST SP 800-172, which outlines steps system administrators should take to secure their networks, including by providing security practices that could protect against advanced persistent threats, such as cyber-attacks from adversarial nation-states. Read more here.

DOD Requiring Masks on Military Installations
Effective February 4, 2021, the Department of Defense (DOD) announced that all individuals performing duties from any location outside of their home on behalf of the Department of Defense (DOD) and all individuals on military installations must wear masks in accordance with the most current Centers for Disease Control and Prevention (CDC) guidelines. Read more here.

beta.SAM.gov to Remove “Beta” in May
The General Services Administration (GSA) announced that beta.SAM.gov will be updated on April 26, 2021, to receive a new look and feel, and, on May 24, 2021, GSA will migrate the current SAM.gov functionality onto beta.SAM.gov and drop the “beta.” Read more here.

GSA’s Integrated Award Environment hosted an online Stakeholder Forum webinar with an introduction to the new design of beta.SAM.gov. A copy of the slide deck presentation is available download here. A full recording of the program is available here.

SBA Reaches $200 Billion Milestone in EIDL Program to Small Businesses and Non-Profits
The Small Business Administration (SBA) announced that it reached a milestone in the success of the COVID-19 Economic Injury Disaster Loan (EIDL) program, which has provided U.S. small businesses, non-profits, and agricultural businesses a total of $200 billion in emergency funding. SBA will accept COVID-19 EIDL loan applications through December 31, 2021. Read more here.

Government Contractor Calls Under the Telephone Consumer Protection Act
The Federal Communications Commission (FCC) published an adjudicatory ruling, which finds that that state government callers, like federal government callers, are not “persons” for purposes of the Telephone Consumer Protection Act (TCPA) because they are sovereign entities. However, a local government entity caller (i.e. counties, cities, and towns) is a “person” subject to the TCPA as well as contractors calling on behalf of the federal government. The FCC also clarified that a state or local government contractor, like a federal government contractor, is a “person” and thus not exempt from the TCPA’s restrictions. The ruling became effective February 12, 2021. Read more here.

DOD to Get ‘Entire Spectrum’ of AI Testing in Upcoming JAIC Contract
FedScoop reported that the Department of Defense’s (DOD) Joint Artificial Intelligence Center (JAIC) plans to issue a multiple-award contract for testing and evaluation services to support DOD’s AI testing needs. The contract, expected to be awarded sometime in February, will not just be for the JAIC, but rather a mechanism for all DOD offices working on AI to access private-sector support when testing their systems. Read more here.

Arrington Forecasts CMMC in Every DOD Contract by Fiscal Year 2026
Meritalk reported that, according to Katie Arrington, the Department of Defense’s (DOD) Chief Information Security Officer for Acquisition and Sustainment, every contractor looking to do business with DOD will be required to have at least Level 1 Cybersecurity Maturity Model Certification by Fiscal Year 2026. Read more here.

SBA’s HUBZone Program
The Congressional Research Service updated its report on the HUBZone Program. The report covers arguments both for and against targeting assistance to geographic areas; the HUBZone Program’s structure and operation; the Small Business Administration’s (SBA) administration of the program and performance measures; and HUBZone-related legislation. Read more here.

GSA Enterprise Infrastructure Solutions Bulletin
The General Services Administration (GSA) published Volume 15 of its bulletin on Enterprise Infrastructure Solutions (EIS). The bulletin addresses the prohibition on issuing zero dollar task orders against EIS contracts, billing and reporting service-related equipment transfers from legacy contracts, and the EIS Management and Operations Handbook v8 release. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: May the Clause Be with You: FAR 52.203-16, Organizational and Personal Conflicts of Interest, February 23, 2021, Cy Alba. Read more here.

WEBINAR: May the Clause Be with You: Certification / Information Regarding Responsibility Matters, March 23, 2021, Cy Alba and Katherine Burrows. Read more here.

LITIGATION & DISPUTE RESOLUTION

Protecting Your Company Against Revenue Clawbacks: Preference Actions (Part 2 of 3), February 8, 2021, Ora Nwabueze
This is part two of our three-part series on revenue clawbacks. Once again, the scenario: a customer goes bankrupt, and then they (or a trustee) demand you return money you were already paid for services or goods duly rendered. In this three-part series, we discuss strategies for protecting your company against these revenue “clawbacks” and how to implement these strategies before and after a customer’s or teaming partner’s bankruptcy filing. In part one, we discussed the definition of preferences and the policy purpose of preference actions. In this part, we discuss five specific actionable items to take to limit your exposure to them. Read more here.

Notification of Concerns Regarding DOJ Compliance with Laws, Regulations, and Policies Regarding Whistleblower Rights and Protections for Contract Workers Supporting DOJ Programs
The Department of Justice (DOJ) Office of Inspector General (OIG) published a memorandum sent to advise Michael Allen, Deputy Assistant Attorney General and Senior Procurement Executive of the Justice Management Division, of a systemic issue that the OIG identified related to DOJ’s compliance with laws, regulations, and established internal policies designed to ensure notice to prime contractors and subcontractors about their whistleblower rights and protections. Read more here.

LABOR & EMPLOYMENT

DOL Confirms Investment Advice Exemption
The Department of Labor’s (DOL) exemption for investment advice fiduciaries, titled “Improving Investment Advice for Worker & Retirees,” went into effect as scheduled on February 16, 2021. In the coming days, DOL will publish related guidance for retirement investors, employee benefit plans, and investment advice providers. Read more here.

DOL Plans to Rescind Religious Contractor Exemption Rule
Bloomberg Law reported that the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs will propose to roll back a controversial rule issued during President Trump’s administration that broadened the defenses religious federal contractors can use when accused of workplace discrimination. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: Risk Prevention Strategies: Avoiding Costly FLSA Missteps, February 24, 2021, Nichole Atallah and Matt Feinberg. Read more here.

WEBINAR: Staying SCA Compliant in a COVID-19 Environment, March 11, 2021, Nichole Atallah. 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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