Weekly Update for Government Contractors and Commercial Businesses – September 2021

PilieroMazza PLLC

LITIGATION & DISPUTE RESOLUTION

“Let’s Get Surety” Podcast: Cy Alba and Matt Feinberg Discuss False Claims Act Implications in the Construction and Surety Industries, September 17, 2021, Cy Alba and Matt Feinberg
Kat Shamapande, host of the podcast “Let’s Get Surety”, spoke recently with PilieroMazza’s Cy Alba and Matt Feinberg, partners in the Firm’s False Claim Act Group. Using examples and explanations, Cy and Matt elaborated on the False Claims Act and its impact on the construction and surety industries. For the full episode, please visit this link. Read more here.

Watch Your Step: Avoiding False Claims Act Violations from Limitations in Subcontracting and Performance of Work Requirements, September 15, 2021, Camilla Hundley
Members of the government contracting community are familiar with the contracting opportunities offered specifically to small and disadvantaged businesses. The availability of small business contracts and set-aside contracting opportunities through the U.S. Small Business Administration’s 8(a), Mentor-Protégé, and various set-aside programs (such as those available for service-disabled veteran-owned small businesses or women-owned small businesses), offer important opportunities for small businesses to grow without competing against mega companies with endless resources. However, certain requirements for performing contracts under these programs can cause confusion and even liability under the False Claims Act for contractors who don’t watch their steps throughout contract performance. Read more here.

Jury Convicts Former NASA Subcontractor of Fraud: A Warning Regarding Wire Fraud for Government Contractors, September 14, 2021, Megan Benevento
In the government contracting sphere, being able to qualify for one or more of the U.S. Small Business Administration’s small business set-aside programs or self-certify as a small business can help open doors to new contracting opportunities for companies without having to compete against billion-dollar businesses. But making a false certification of size or status to participate in these programs or bid on set-aside contracts can cause problems for your business and may even lead to criminal liability. A contractor’s recent conviction for wire fraud highlights the risks government contractors face when making inaccurate representations to the government, giving insight on ways to identify and address issues should they arise. Read more here.

Litigation Commentary & Review: Matt Feinberg Examines Important Considerations in PPP Loan Civil Litigation, September 14, 2021, Matt Feinberg
PilieroMazza’s Matt Feinberg, Chair of the Firm’s Litigation & Dispute Resolution and False Claims Act practice groups, was recently featured in Litigation Commentary & Review for his article “The Paper Trail Saves the Day: Important Considerations in PPP Loan Civil Litigation.” The article examines how the representations and certifications required to obtain Paycheck Protection Program loan forgiveness could potentially expose companies to liability under the civil False Claims Act or the Financial Institutions Reform, Recovery & Enforcement Act. To view the full article, please visit this link. Read more here.

Upcoming Litigation & Dispute Resolution Presentations

WEBINAR: Risk Prevention Strategies: FCA Risk Prevention for Government Contractors, October 27, 2021, Matt Feinberg and Camilla Hundley. Read more here.

LABOR & EMPLOYMENT

New Developments in President Biden’s COVID-19 Requirements for Government Contractors, September 20, 2021, Nichole Atallah, Sarah Nash, and Sara Nasseri
On September 16, 2021, President Biden released new guidance on implementing COVID-19 mandates for businesses working with the federal government. PilieroMazza’s Labor & Employment Group highlights important guidelines government contractors need to follow in order to comply. Read more here.

President Biden Issues Unprecedented COVID-19 Requirements for Private Employers and Government Contractors on National Scale, September 10, 2021, Nichole Atallah, Sarah Nash, and Sara Nasseri
On September 9, 2021, the Biden Administration announced sweeping updates to its national strategy to combat COVID-19. The updates come less than a month after the Food and Drug Administration fully approved the Pfizer-BioNTech vaccine and as the country continues to experience a rise in COVID-19 cases. The plan, which still leaves a number of unanswered questions, including in certain cases a timeline for implementation, is available here. This post gives PilieroMazza’s summary of key updates to the Biden Administration’s vaccination plan, along with pending items for employers to watch. Read more here.

Minimum Wage for Federal Contracts Covered by Executive Order 13658, Notice of Rate Change in Effect as of January 1, 2022
The Department of Labor (DOL) published a notice that announces the applicable minimum wage rate for workers performing work on or in connection with federal contracts covered by Executive Order 13658, Establishing a Minimum Wage for Contractors, (EO 13658) beginning January 1, 2022. Beginning on that date, the EO 13658 minimum wage rate that generally must be paid to workers performing work on or in connection with covered contracts will increase to $11.25 per hour, while the required minimum cash wage that generally must be paid to tipped employees performing work on or in connection with covered contracts will increase to $7.90 per hour. Covered contracts that are entered into on or after January 30, 2022, or that are renewed or extended (pursuant to an option or otherwise) on or after January 30, 2022, will be generally subject to a higher $15.00 minimum wage rate established by Executive Order 14026 of April 27, 2021, Increasing the Minimum Wage for Federal Contractors. The new EO 13658 rates shall take effect on January 1, 2022. Read more here. A related DOL press release is available here.

DHS: CPO Procedures for Contractors in Response Ongoing COVID-19
The Department of Homeland Security published a memorandum to update its COVID-19 related operating procedures in light of President Biden’s September 9, 2021, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. Read more here.

DOD Guidance for COVID-19 Vaccination Attestation and Screening Testing for Unvaccinated Personnel
The Department of Defense (DOD) announced its release of Force Health Protection Guidance (Supplement 23), which provides guidance for implementing additional force health protection and workplace safety measures directed by the White House Safer Federal Workforce Task Force to reduce the transmission of the virus that causes COVID-19. According to conversations between DOD and the Professional Services Council, DOD is in the process of figuring out which aspects of this policy can move forward in light of President Biden’s September 9, 2021, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. Read more here.

Early Engagement Opportunity: Implementation of Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors
The Department of Defense (DOD) published a notice that announces an early engagement opportunity to support DOD implementation planning for the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. Early inputs are due within 30 days of September 17, 2021. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: Risk Prevention Strategies: Ownership of Employee-Developed Inventions and Intellectual Property, September 29, 2021, Sarah Nash and Camilla Hundley. Read more here.

WEBINAR: OFCCP Refresh and Reset: What to Watch for in 2022, October 12, 2021, Sara Nasseri. Read more here.

WEBINAR: Collective Bargaining for the Federal Contractor, October 21, 2021, Sarah Nash. Read more here.

GOVERNMENT CONTRACTS

COVID-Related Claim Successfully Negotiated by PilieroMazza’s Government Contracts Team, September 16, 2021, Jon Williams, Lauren Brier, and Patrick Rothwell
Attorneys in PilieroMazza’s Government Contract Claims & Appeals Group recently assisted a client in the federal procurement sector to successfully negotiate a claim resulting from the impacts of COVID-19. Read more here.

DOD Issues Class Deviation Making Limitations on Subcontracting Compliance More Uniform, September 15, 2021, Sam Finnerty
As we previously wrote, the Federal Acquisition Regulation (FAR) limitations on subcontracting (LOS) rule was recently revised to more closely mirror the U.S. Small Business Administration’s (SBA) LOS regulation. However, because the changes to the FAR do not account for more-recent revisions to SBA’s LOS rule, inconsistencies between the two sets of regulations remain. Recognizing this disconnect, the Civilian Agency Acquisition Council has released a memorandum authorizing civilian agencies to issue FAR class deviations to better align the FAR’s and SBA’s LOS. In a welcome step towards regulatory conformity, the Department of Defense (DOD) has also acted to bridge the divide between these regulations. On September 10, 2021, DOD issued a class deviation (Deviation), effective immediately, that recognizes certain exclusions from the LOS for small businesses that are outlined in SBA’s regulations but have not yet been added to the FAR. This Deviation should provide greater clarity for small businesses when measuring compliance with the LOS under DOD set-aside contracts. Read more here.

PilieroMazza’s Jon Williams and Katie Burrows Examine Advantages and Pitfalls of Mentor-Protégé Joint Ventures in The Government Contractor, September 14, 2021, Jon Williams and Katie Burrows
PilieroMazza’s Jon Williams and Katie Burrows, partners in the Firm’s Government Contracts Group, co-authored the article “Joint Adventures – Mentor-Protégé Joint Ventures Offer Significant Advantages and Potential Pitfalls for Federal Contractors” in the most recent issue of The Government Contractor. To view the full article, please visit this link. Read more here.

The FAR’s Revised Limitations on Subcontracting: What You Need to Know, September 10, 2021
On August 11, 2021, the Federal Acquisition Regulatory Council (FAR Council) issued a final rule revising and standardizing the limitations on subcontracting, including the nonmanufacturer rule, that apply to small business concerns under Federal Acquisition Regulation (FAR) part 19, more closely aligning them with Small Business Administration (SBA) regulations. The final rule becomes effective today, September 10, 2021, and is summarized in more detail below. The FAR Council’s long-awaited LOS rule finally addresses major differences that had existed between SBA’s regulations and the FAR, giving both small business government contractors and contracting officers more clarity on how the rule will be applied. Read more here.

House Defense Policy Debate Underway
Roll Call reported that the House began voting on amendments to the annual defense policy bill on September 22, 2021. Members have more than 400 amendments to the National Defense Authorization Act to consider, but only 20 of those will be debated on the floor. The vast majority will be grouped into four en bloc packages, likely signaling a lack of controversy or disagreement about them. Barring any unforeseen controversies, the bill seems likely to pass the House this week. Read more here. A summary of the bill is available from the House Armed Services Committee here, and additional resources can be found here.

Pentagon Internal Review Delays Plans to Release CMMC Final Rule in September
Inside Cybersecurity reported that the Department of Defense is not planning to release the final rule cementing the implementation of its Cybersecurity Maturity Model Certification program in September due to an ongoing internal review expected to conclude toward the end of 2021. Read more here.

House Panel Advances Key Portion of Democrats’ $3.5T Bill
The Hill reported that the House Ways and Means Committee approved a major portion of Democrats’ $3.5 trillion social spending package. Among other things, it would expand infrastructure financing tools, expand the low-income housing tax credit, and extend and expand renewable energy tax credits. Read more here. Read a summary of the package here.

CISA Tells Agencies They Don’t Have to Go at It Alone on Zero Trust
Federal News Network reported that the Cybersecurity and Infrastructure Security Agency is highlighting the services it will make available for agencies so they can meet the goals of the newly mandated zero trust security architecture. On September 8, the Office of Management and Budget (OMB) opened public comment on a draft strategy document titled “Moving the U.S. Government Towards Zero Trust Cybersecurity Principles.” The draft strategy requires agencies to complete its identity, device, network, application, and data actions by the end of fiscal 2024. Read more here.

Guidance to USAID / Afghanistan Implementing Partners on Administrative Approvals
The U.S. Agency for International Development (USAID) published a guidance document with instructions and administrative authorizations for USAID / Afghanistan acquisition and assistance awards. The authorizations are provided for an initial period of 30 days, beginning August 25, 2021, subject to availability of award funds, and may be extended by notification from the Contracting / Agreement Officer to a maximum of 180 days. USAID will provide further guidance as it becomes available. The guidance covers evacuation costs under cost reimbursement acquisition instruments; travel authorization under acquisition awards; evacuation costs under assistance awards; maintaining readiness and salaries under acquisition and assistance awards; extension of financial, performance, and other reporting; and extensions of acquisition and assistance awards. Read more here.

CBO: Analysis of the Navy’s Fiscal Year 2022 Shipbuilding Plan
The Congressional Budget Office published an analysis of the Navy’s 30-year shipbuilding plan for fiscal year 2022. The report analyzes the plan and assesses its costs. Read more here.

Borrower Appeals of Final SBA Loan Review Decisions Under the Paycheck Protection Program
The Small Business Administration (SBA) published a final rule that adopts with changes portions of the previously issued interim final rule published in the Federal Register on August 27, 2020, on Appeals of SBA Loan Review Decisions Under the Paycheck Protection Program. The rule provides procedures for appeals of certain final SBA loan review decisions under the Paycheck Protection Program. The final rule is effective September 14, 2021. It applies to all appealable final SBA loan review decisions under the Paycheck Protection Program and to all appeals filed after the effective date of the rule and to those appeals filed before the effective date for which a Notice and Order has not been issued. Read more here.

Department Guidance on Procurement and Operation of DOD Unmanned Aircraft Systems
The Department of Defense (DOD) reported that Deputy Secretary of Defense Kathleen Hicks signed into effect updated guidance for the procurement and operation of DOD’s Unmanned Aircraft Systems (UAS). The updated policy provides expanded department-wide guidance on the use of all UAS, regardless of size, weight, or capability. Read more here.

Defense Wants to Know More About Potential Barriers for Small Businesses Contracting
Government Executive reported that the Department of Defense is seeking input on how they can make the department’s contracting opportunities more attractive to small businesses. Read more here.

Proposed Amendment to Contract Requirements for GSA Information Systems
The General Services Administration (GSA) published a proposed rule that would amend the GSA Acquisition Regulation to streamline and update requirements for contracts that involve GSA information systems. The proposed rule will replace the outdated text with existing policies of the GSA Office of the Chief Information Officer and provide centralized guidance to ensure consistent application across the organization. The updated GSA policy will align cybersecurity requirements based on the items being procured by ensuring contract requirements are coordinated with GSA’s Chief Information Security Officer. Comments are due November 9, 2021. Read more here.

New and Revised SINs Now Available on MAS’ Professional Services Category
The General Services Administration (GSA) Federal Acquisition Service (FAS) recently announced the GSA Multiple Award Schedule Solicitation 47QSMD20R0001 – Refresh # 7 and an associated mass modification to all existing contracts. As part of this refresh, GSA added two Special Item Numbers (SIN) and revised one existing SIN under the Professional Services Category. Read more here.

Disaster Loan Program Changes
The Small Business Administration (SBA) published an interim final rule that implements changes to the Disaster Loan Program regulations. For applications for COVID-19 Economic Injury Disaster loans, it changes the definition of affiliation, the eligible uses of loan proceeds, and application of the size standard to certain hard-hit eligible entities, and establishes a maximum loan limit for borrowers in a single corporate group. Additionally, for all disaster assistance programs, it changes which SBA official may make the decision on the appeal of an application that has been declined for a second time. The provisions of the interim final rule are effective September 8, 2021. Read more here.

Use of Firm-Fixed-Price Contracts for Foreign Military Sales
The Department of Defense (DOD) published a final rule amending the Defense Federal Acquisition Regulation Supplement to implement a section of the National Defense Authorization Act for Fiscal Year 2021 that rescinds the requirement for the use of firm-fixed-price contract types for foreign military sales unless an exception or waiver applies. The rule is effective as of August 30, 2021. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Government Contractors: Key Questions You Should Be Asking Your Advisors, September 30, 2021, Cy Alba and Kathryn Hickey. Read more here.

WEBINAR: GovCon “ LIVE Q&A” Café: Set-Asides, October 8, 2021, Cy Alba. Read more here.

WEBINAR: Construction Webinar Series: Preparing for and Managing Claims in the COVID-19 Project Environment, October 19, 2021, Lauren Brier and Sam Finnerty. Read more here.

WEBINAR: Risk Prevention Strategies: FCA Risk Prevention for Government Contractors, October 27, 2021, Matt Feinberg and Camilla Hundley. 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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