GOVERNMENT CONTRACTS
Small Business Administration (SBA) Press Release: SBA Announces Biden-Harris Administration’s Progress in Small Business Lending with End-of-Year Capital Program Numbers
On November 21, Small Business Administrator Isabel Casillas Guzman announced that the SBA delivered $50 billion in capital, disaster relief, and bonding to small businesses and disaster-impacted communities across America in Fiscal Year 2023 (FY23). The SBA experienced another banner year of lending with increases in its microloan program, and its 7(a) Loan Program. In addition, the Biden-Harris Administration’s commitment to equity advanced further with significant increases in SBA lending to Black, Latino, Asian American, Pacific Islander and Native Hawaiian, Native American, women, and veteran small business owners in FY23. Read more here.
Federal Acquisition Regulation (FAR) Council Interim Final Rule Pending Regulatory Review: Certification of Service-Disabled Veteran-Owned Small Businesses (SDVOSB)
On November 17, the FAR Council sent an Interim Final Rule for review with the Office of Management and Budget (OMB). The Rule will amend the FAR to implement Small Business Administration (SBA) changes to the certification program for SDVOSB, as required by section 862 of the National Defense Authorization Act for FY21 (Pub. L. 116-283). Section 862 transfers responsibility for SDVOSB certification to the SBA as of January 1, 2023. This rule will clarify the certification requirements for SDVOSBs to be eligible for the award of a sole source or set-aside SDVOSB contract. This rule promotes equity in Federal procurement. This is proposed to impact small businesses. Read more here.
Government Accountability Office (GAO) Report of Small Business Research Programs: Information Regarding Subaward Use and Data Quality
On November 28, GAO released a report about agencies that participate in Small Business Innovation Research (SBIR) and Small Business Technology Transfer (SBTT) programs. GAO examined factors that affect reporting of first-tier subaward data and estimated the extent that award recipients used subawards including the purpose of the subawards and types of recipient entities. GAO found that small businesses that receive awards under these programs typically use subcontractors and consultants to assist with projects, particularly to assist with product design, development, and testing. Read more here. The full report is available here.
Small Business Administration (SBA) Office of Inspector General (OIG)’s Fall 2023 Semiannual Report to Congress
On November 28, the SBA OIG issued a report detailing the prosecution of fraudulent recipients of PPP funds and reports that combat fraud, and corrective actions to improve oversight. Read more here. The full report is available here.
IRS Starts the Bidding for $1.9B IT Services Recompete, Government Executive
The Internal Revenue Service has opened the window for industry to start working on and submitting bids for a potential seven-year, $1.9 billion blanket purchase agreement covering enterprise IT and related professional support services. Read more here.
H.R. 4670 Small Business Contracting Transparency Act of 2023 Passed/Agreed to in House
On November 28, the House passed and agreed to a bill entitled, “Small Business Contracting Transparency Act of 2023.” The bill will require the Small Business Administration to report information regarding small businesses owned/controlled by women, in qualified HUBZones, and owned/controlled by service-disabled veterans. The bill was introduced in the House on July 17. Read more here.
H.R. 5427 Passed/Agreed to in House
On November 28, the House passed and agreed to a bill entitled, “To prohibit individuals convicted of defrauding the Government from receiving any assistance from the Small Business Administration, and for other purposes.” The bill would specifically prohibit individuals convicted of crimes relating to financial misconduct or false statements about COVID-19 loans from receiving financial assistance from the SBA. The bill was introduced in the House on September 13. Read more here.
Upcoming Government Contracts Presentations
PM WEBINAR: Navigating GSA Audits: Compliance Strategies and Best Practices, December 7, 2023, Isaias “Cy” Alba, IV. Read more here.
WEBINAR: Unlocking the Secrets of Debriefings, Government Evaluation of Proposals and Protests, January 25, 2024, Katherine B. Burrows and Eric Valle. Read more here.
WEBINAR: Navigating the FAR/DFARS: The Most Confusing and Little-Known Clauses, January 31, 2024, Lauren Brier and Annie B. Hudgins. Read more here.
LABOR & EMPLOYMENT
National Labor Relations Board (NLRB) Final Rule Delay of Standard for Determining Joint Employer Status
On October 27, the NLRB published a final rule rescinding and replacing its rule regarding the standard for determining joint employer status under the National Labor Relations Act. The NLRB amends the rule to change the effective date from December 26, 2023, to February 26, 2024. The purpose of the amendment is to facilitate the resolution of the legal challenges with respect to the rule. The Final Rule Delay is available here.
Office of Personnel Management (OPM) Final Rule Pending Regulatory Review: Advancing Pay Equity in Governmentwide Pay Systems
On November 20, OPM sent the Final Rule to the Office of Management and Budget (OMB) for regulatory review. In its rule, OPM proposes revisions to the criteria for making salary determinations based on salary history to advance pay equity in the General Schedule pay system, Prevailing Rate Systems, Administrative Appeals Judge pay system, and Administrative Law Judge pay system. More information is available here.
CYBERSECURITY & DATA PRIVACY
NIST Issues Guidance on Integrating ICT Risks in ERM Programs, ExecutiveGov
On November 17, the National Institute of Standards and Technology issued two new special publications designed to help decision makers incorporate information and communication technology, or ICT, risks into the enterprise risk management programs of their respective organizations. Read more here.
Department of Defense (DOD) Proposed Rule Concluded Regulatory Review: Cybersecurity Maturity Model Certification (CMMC) Program
On November 21, the Office of Management and Budget (OMB) concluded its review of DOD’s Proposed Rule of the CMMC Program consistent with change. OMB received the regulation July 24, and it is designated as significant, major, and to impact small businesses, international trade, investments, and be of international interest. DOD is proposing to implement the CMMC Framework to help assess a Defense Industrial Base (DIB) contractor’s compliance with and implementation of cybersecurity requirements to safeguard Federal Contract Information (FCI) and Controlled Unclassified Information (CUI) transiting non-federal systems and mitigate the threats posed by Advanced Persistent Threats – adversaries with sophisticated levels of expertise and significant resources. More information is available here.
Upcoming Cybersecurity & Data Privacy Presentations
PM WEBINAR: Protecting Our Nation’s Data: Cybersecurity Compliance for Government Contractors, January 4, 2024, Isaias “Cy” Alba, IV and Daniel Figuenick, III. Read more here.
CONSTRUCTION
Subcontract Flow-Down Provisions: Constructive Acceleration and Delays on Federal Projects, PilieroMazza Blog, Jessica A. duHoffmann, Arthur Dore
A contractor’s claims against the government for constructive acceleration and delays are governed, in part, by the applicable clauses of the Federal Acquisition Regulations (FAR) incorporated into its contract with the government. Whereas a subcontractor’s claims against a contractor for constructive acceleration and delays are governed, in part, by which FAR clauses are incorporated into its subcontract. Prime contractors and subcontractors on federal projects should be aware of the importance of understanding flow-down provisions in subcontracts and how they can govern subcontractor constructive acceleration and delay claims against contractors. Read more here.
FALSE CLAIMS ACT / AUDITS & INVESTIGATIONS
The FCA at the Supreme Court, Part 4 of 4: Government Intervention and Dismissal of FCA Cases, PilieroMazza Blog, Matthew E. Feinberg, Annie B. Hudgins
The False Claims Act (FCA) saw quite a bit of action at the Supreme Court in its most recent completed term. In this fourth and final installment of PilieroMazza’s blog series “The FCA at the Supreme Court,” we examine active cases, comment on recently issued decisions, and offer key takeaways to help government contractors protect their business assets against an FCA claim or in FCA litigation. Please visit these links for Part 1, Part 2, and Part 3. Read more here.
GOVERNMENT CONTRACT CLAIMS & APPEALS
Inter-Con Security Systems: Significance of CBCA’s Decision on Government Contractors, PilieroMazza Blog, Isaias “Cy” Alba, IV, Lauren Brier
On September 29, 2023, the Civilian Board of Contract Appeals (CBCA) ruled that a federal contractor could not collect damages from the U.S. Marshals Service (USMS). The contractor’s claim, asserting that it was being sued by former employees as a result of government action, was rejected by the CBCA. The CBCA’s decision in Inter-Con Security Systems, Inc. v. U.S. Dept. of Justice, CBCA No. 6995, suggests that when government action is justified by contract language, a lawsuit filed by a former employee against the contractor is not viewed as a “reasonably expected” outcome. The ruling’s significance for government contractors highlights the CBCA’s approach to interpreting contract terms and what can be considered “reasonably expected” in the aftermath of government action. Read more here.
