Assessing Contractor Implementation of Cybersecurity Requirements (DFARS Case 2019-D041), Department of Defense (DOD), Proposed Rule
DOD is amending an interim rule to implement the Cybersecurity Maturity Model Certification (CMMC) framework 2.0 to protect against the theft of intellectual property and sensitive information from the Defense Industrial Base (DIB) sector. The CMMC framework is a DOD certification process that measures a company’s institutionalization of processes and implementation of cybersecurity practices. This rule provides the DOD with assurances that a DIB contractor can adequately protect sensitive unclassified information at a level commensurate with the risk, accounting for information flow down to its subcontractors in a multi-tier supply chain. The Notice of Proposed Rulemaking is expected to be released in September 2023 and will impact small businesses. More information is available here.
Cybersecurity Maturity Model Certification (CMMC) Program, Department of Defense (DOD), Proposed Rule
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. The Notice of Proposed Rulemaking is expected to be released in September 2023 and will impact small businesses. More information is available here.
Time Runs Out on TikTok: New FAR Clause Bans TikTok on Federal Contractor Devices, PilieroMazza Blog
The federal government recently issued an interim rule, effective immediately, prohibiting the presence or use of the TikTok application in the performance of a contract. This rule continues the government’s actions against TikTok based on privacy and cybersecurity concerns raised by the links between the application’s parent company and the Chinese government. More specifically, the clause implements the No TikTok on Government Devices Act, which was enacted last December as part of the Consolidated Appropriations Act. Federal government contractors should be aware of the general TikTok ban and understand when and how it could apply to equipment used during the performance of a contract. Read more here.
Defense Federal Acquisition Regulation Supplement (DFARS): Management of the Procurement Technical Assistance Agreement Program (DFARS Case 2020-D022)
The Department of Defense is issuing a final rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2020 that transfers responsibilities for carrying out the procurement technical assistance cooperative agreement program from the Director of the Defense Logistics Agency to the Under Secretary of Defense for Acquisition and Sustainment. The final rule is available here and is effective as of June 9, 2023.
Defense Federal Acquisition Regulation Supplement (DFARS): Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous Region (DFARS Case 2023-D015)
The Department of Defense is issuing an interim rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2023 that prohibits the use of funds to knowingly procure any products mined, produced, or manufactured wholly or in part by forced labor from the Xinjiang Uyghur Autonomous Region. The interim rule is available here and is effective as of June 9, 2023.
Defense Federal Acquisition Regulation Supplement (DFARS); Technical Amendments
The Department of Defense is amending the DFARS in order to make needed editorial changes. The amendment of the final rule is available here and is effective as of June 9, 2023.
Defense Federal Acquisition Regulation Supplement (DFARS): DFARS Buy American Act Requirements (DFARS Case 2022-D019)
The Department of Defense (DOD) is proposing to amend the DFARS to supplement the Federal Acquisition Regulation implementation of an Executive order addressing domestic preferences in DOD procurement. The proposed rule is available here. Comments are due August 8, 2023.
Acquisition Regulation: Management of the Procurement Technical Assistance Agreement Program
The Department of Defense is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement to implement a section of the National Defense Authorization Act for Fiscal Year 2020 that transfers responsibilities for carrying out the procurement technical assistance cooperative agreement program from the Director of the Defense Logistics Agency to the Under Secretary of Defense for Acquisition and Sustainment. The final rule is available here and is effective as of June 9, 2023.
General Services Administration (GSA) Announces New Political Appointees
GSA announced two new political appointments that will serve as Regional Administrators, effective June 6. Francis Thomas will serve as Regional Administrator for regions 1 and 2. Denise Maes will serve as Regional Administrator for regions 5, 6, and 8. Read more here.
Philip Hadji: Candidate for the Court of Federal Claims (COFC)
Philip Hadji, a civilian attorney with the U.S. Navy’s Office of General Counsel, is President Biden’s pick for the COFC. Hadji has held several positions in the general counsel’s office, including deputy counsel in the D.C. office of the Naval Information Warfare Systems Command and division director of the Acquisition Integrity Office, according to the White House. Read more here.
Department of Veterans Affairs (VA) Technology Office Makes Room for New Vendors to Prove Value, Bloomberg Government, Patty Nieberg
Key goals for the VA acquisition plans include boosting innovation and building up the vendor pipeline, chief information officer Kurt DelBene said at a media roundtable Tuesday. The VA is looking to change the way it works with smaller companies and non-traditional vendors. The article is available here (subscription required).
Small Business Administration (SBA) Recognizes Awardees for Facilitating Surety Bonds for Small Business Contracting
Bond agencies and surety company partners helped facilitate over $2 Billion in contracting awards. Administrator Isabella Casillas Guzman recognizes four award winners for their exceptional work helping small businesses acquire surety bonds, which allow them to obtain federal, state, and private contracts. Read more here.
Biomedical Research Agency Posts Innovative Technology Wish List, Bloomberg Government, Patty Nieberg
The Advanced Research Projects Agency for Health, the agency in charge of developing health technology, is planning to use the Small Business Innovation Research Program to support research into topics like tools for autonomous surgery and microneedle patches for drug delivery. Startups have a month to propose projects for early-stage funding. The article is available here (subscription required).
Court of Federal Claims (COFC) Determines Agency’s Procurement Errors Cost Bidders ‘Significant Revenue,’ Bloomberg Government, Daniel Seiden
On June 2, 2023, the COFC said in an opinion that the Department of Commerce’s unreasonable elimination of four bids for IT services under a $1.5 Billion procurement cost the bidders up to $89 Million. The article is available here (subscription required).
National Institutes of Health (NIH) Updated Policy Guidance for Subaward/Consortium Written Agreements
NIH is seeking public comment on updates to the NIH Grants Policy Statement (GPS), Section 15.2, which outlines the requirements for consortium/subaward agreements on NIH-funded grants. More information is available here. The guidance announcement is available here. The guidance is projected to be effective on October 1, 2023. Comments are due July 5, 2023.
Federal Acquisition Regulation (FAR); FAR Case 2020-011, Implementation of Federal Acquisition Security Council (FASC) Exclusion Orders
This rule will amend the FAR to address implementation of issued exclusion orders authorized by section 202 of the SECURE Technology Act (115 Pub. L. 390), which amends 41 U.S.C. 1323 by creating the FASC and authorizing the Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence to issue exclusion orders, upon the recommendation of the FASC. These orders are issued to protect national security by excluding certain covered products, services, or sources from the federal supply chain. Read more here.
Upcoming Government Contracts Presentations
WEBINAR: FAR Session 13, Parts 19 & 26, June 28, 2023, Isaias “Cy” Alba, IV. Read more here.
WEBINAR: The Impacts of Foreign Ownership, Control, or Influence on Federal Government Contractors, August 1, 2023, Isaias “Cy” Alba, IV. Read more here.
WEBINAR: Unlocking the Secrets of Debriefings, Gov’t Evaluation of Proposals and Protests, September 7, 2023, Peter B. Ford and Meghan F. Leemon. Read more here.
LABOR & EMPLOYMENT
National Institutes of Health (NIH) Fellows Hope Union Bid Will Bolster Pay and Protections, Government Executive, Erich Wagner
Union organizers hope that forming a union at NIH will help increase pay, benefits, and worker protections across academia. More than 3,000 researchers at NIH submitted union cards to the Federal Labor Relations Authority, petitioning the agency to hold a union election for postdoctoral and postbaccalaureate fellows to become a bargaining unit represented by the United Auto Workers. Read more here.
Submission for Office of Management and Budget (OMB) Review; Overseas Employment Agreement; General Services Administration (GSA) Form 5040
To more effectively memorialize GSA’s Office of Human Resources Management costs incurred, and the appointee’s (or employee’s) resulting service obligation, GSA redeveloped its existing form GSA 5040, Overseas Employment Services Agreement. This form serves as: (1) an information collection device to determine eligibility for, and then memorialize, the compensation, foreign allowances, and travel and transportation benefits provided, and (2) an enforceable service agreement for permanent change of station travel and transportation costs, pursuant to the Federal Claims Collection Act of 1966 and the Debt Collection Act Amendments of 1996 (see further 31 U.S.C. 3711 et seq.). More information is available here. Comments are due July 10, 2023.
Upcoming Labor & Employment Presentations
PODCAST: Clocking in with PilieroMazza: Practical Impacts of the NLRB’s Ruling on Severance Agreement Content, June 14, 2023, Nichole D. Atallah and Sarah L. Nash. Read more here.
WEBINAR: FAR Session 14, Parts 22 & 23, July 12, 2023, Nichole D. Atallah. Read more here.
MERGERS & ACQUISITIONS
Contractor Seller Scarcity Puts Vendors in the M&A Driver’s Seat, Bloomberg Government, Caleb Harshberger
A shortage of buyable contractors and a flood of acquisition interest is giving sellers more power to set terms in deals and keep prices high. The article is available here (subscription required). The Aerospace & Defense M&A 2023 Report is available here.