GOVERNMENT CONTRACTS
PilieroMazza Celebrates Promotion of Meghan Leemon and Lauren Brier, New Partners in the Government Contracts Group, PilieroMazza News, Meghan F. Leemon, Lauren Brier, Isaias “Cy” Alba, IV
PilieroMazza is proud to announce that Meghan Leemon and Lauren Brier were promoted to Partner in the Government Contracts Group, the Firm’s largest practice group, effective January 1, 2024. Read more here.
We Are PilieroMazza, PilieroMazza Firm Video
The video offers an overview of PilieroMazza’s mission, five core practice groups—including Government Contracts, Business & Transactions, Construction, Labor & Employment, and Litigation & Dispute Resolution—along with testimonials from the firm’s clients. Visit this link to view the video.
Focus on SBA’s SBIC Program, Part 2: Decoding Regulations and Pre-Application Considerations for Small Business Government Contractors, PilieroMazza Blog, Isaias “Cy” Alba, IV, Robert Troiano
This second installment of PilieroMazza’s blog series, “Focus on SBA’s SBIC Program,” explores regulations governing SBIC status and considerations for potential applicants. Please visit this link for Part 1 in the series. For small business government contractors looking to leverage the opportunities presented by the SBIC program, it is imperative to understand the related regulations to safeguard the interests of both investors and small businesses. Read more here.
Department of Defense (DOD) Final Rule: Defense Federal Acquisition Regulation Supplement (DFARS) Consolidation of DOD Government Property Clauses
On December 22, 2023, DOD issued a Final Rule amending the DFARS to consolidate existing contract clauses for the management and reporting of government property into a single contract clause. The Final Rule also replaces references to legacy software applications used for reporting government property within the DOD enterprise-wide eBusiness platform and converts existing form-based processes into electronic processes within that platform. The Final Rule is available here and will be effective January 22, 2024.
General Services Administration (GSA) Memorandum: Federal Acquisition Regulation (FAR) Class Deviation Regarding Certification of Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns
On December 22, 2023, GSA released a memorandum approving the Class Deviation from the FAR regarding certification of SDVOSB concerns when contemplating a SDVOSB set-aside or sole-source award under the SDVOSB Program. As of January 1, 2024, GSA contracting officers must verify eligibility for a SDVOSB set-aside or sole-source award by confirming SDVOSB certification in VetCert or by verifying submission of the application. The full Memorandum is available here.
Department of Defense (DOD) Memoranda:
- Prohibition on Providing Funds to the Enemy and Authorization of Additional Access to Records. On December 22, 2023, DOD released a memorandum, effective December 22, 2023, requiring contracting officers to include additional clauses in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial products and commercial services, with an estimated value greater than $50,000 that will be performed outside the United States and its outlying areas in support of a contingency operation in which members of the Armed Forces are actively engaged in hostilities. Read more here.
- Class Deviation – Implementation of the United States Trade Representative Trade Agreements Thresholds. On December 22, 2023, DOD released a memorandum, effective January 1, 2024, requiring contracting officers to use the Table in Attachment 1 of Class Deviation 2024-O0004 Implementation of the U.S. Trade Representative Trade Agreements Thresholds in lieu of the Table at FAR 25.402(b) to implement the new United States Trade Representative (USTR) trade agreements thresholds. Contracting officers shall use the provision and clause in Attachment 2 in lieu of the DFARS provision at 252.225-7018, Photovoltaic Devices Certificate, and the DFARS clause at 252.225-7017, Photovoltaic Devices. See Class Deviation 2024-O0004 and Attachment 1
International Development Finance Corporation (DFC) Proposed Rule: Nonprocurement Suspension and Debarment
On January 5, 2024, DFC published a Proposed Rule regarding proposed nonprocurement debarment and suspension regulations. Under this system, a person who is debarred or suspended is excluded from Federal financial and nonfinancial assistance and benefits under Federal programs and activities. The Proposed Rule is available here. Comments close March 5, 2024.
Department of Defense (DOD) Proposed Rule: Defense Federal Acquisition Regulation Supplement (DFARS) Data Requirements for Commercial Products for Major Weapon Systems
On December 22, 2023, DOD published a Proposed Rule amending the DFARS to implement Section 803 of the National Defense Authorization Act for Fiscal Year 2023 that clarifies the data to be provided for certain procurements related to major weapon systems. Section 803 provides guidance about data requirements to support a determination of commerciality and price reasonableness for certain procurements associated with major weapon systems. The Proposed Rule is available here. Comments close February 20, 2024.
General Services Administration (GSA) Proposed Rule: GSA Acquisition Regulation (GSAR), Reduction of Single-Use Plastic Packaging
On December 26, 2023, GSA published a Proposed Rule proposing to amend the GSAR and adding a new provision and clause to identify single-use plastic free packaging for products available on the Federal Supple Schedules. The Proposed Rule is available here. Comments close February 26, 2024.
Department of Energy (DOE) Acquisition Guide: Chapter 8.404 Federal Supply Schedules, New Sub-section 2.1.1 Communications with Vendors – Competitive Acquisitions Under Federal Supply Schedules
DOE updated its Acquisition Guide to add new Sub-section 2.1.1, which provides detailed procedures for communicating with vendors that have submitted quotes in response to a Request for Quotes (RFQ) using FAR Subpart 8.4 procedures and offers contracting officers sample instructional language for such communications to be included in RFQs. Read more here.
Government Accountability Office (GAO) Protest: Washington Business Dynamics, LLC
On December 18, 2023, GAO sustained the protest of Washington Business Dynamics (WBD). WBD, a SDVOSB entity, protested the Office of Personnel Management’s (OPM) blanket purchase agreement (BPA), set aside for service-disabled veteran-owned small businesses (SDVOSB), on the grounds that OPM’s evaluations of quotations and its subsequent best-value determination were unreasonable. OPM filed a request to dismiss WBD’s protest arguing that WBD is not an interested party because WBD is no longer a SDVOSB concern, and therefore is ineligible for award of the BPA. WBD
With regard to WBD’s SDVOSB status: “The agencies and intervenor argue that 13 C.F.R. § 121.404(g)(2)(iii) imposed a mandatory recertification requirement on WBD where the protester was acquired within 180 days of submitting its initial quotation for the BPA. As a result, the regulation mandates that WBD is ineligible for award because it could not recertify as an SDVOSB. In contrast, WBD contends that the requirements in subparagraph (g)(2)(iii) are inapplicable here because the recertification requirements only apply to its FSS contract, not to pending quotations for orders or agreements to be issued thereunder. We find that WBD offers the only reasonable interpretation of the regulation.”
In its decision GAO stated the determination of whether or not WBD, an “other than SDVOSB, is eligible for award of this BPA set aside for SDVOSBs, and thus an interested party to pursue its protest challenging the agency’s evaluation of quotations and resulting award decision, ultimately turns on whether the mandatory recertification provision, as set forth in SBA’s regulations at 13 C.F.R. § 121.404(g)(2)(iii), applies to the facts at hand, and renders WBD ineligible for the BPA.” GAO disagreed with the agencies’ and intervenor’s argument that WBD’s acquisition “triggered an obligation under 13 C.F.R. § 121.404(g)(2)(iii) to recertify in connection with WBD’s quotation for the BPA at issue.” Holding that, “set-aside orders or BPAs issued against the FSS are expressly exempt from recertification requirements. 13 C.F.R. §§ 121.404(a)(1)(ii)(A) and (2); Size Appeal of Oxford Gov. Consulting LLC, supra[,]” . . . . “and more importantly, it is not apparent that a corporate transaction requiring recertification at the FSS contract level pursuant to 13 C.F.R. § 121.404(g)(2)(i) automatically triggers recertification for any pending quotations for a BPA or order issued under the FSS contract pursuant to 13 C.F.R. § 121.404(g)(2)(iii). In this regard, SBA OHA’s persuasive authority in Size Appeal of EBA Ernest Bland Assocs. PC similarly found no basis to conclude that there was a mandatory recertification requirement under similar circumstances.”
In its decision, GAO noted that OPM’s evaluation of quotations was unreasonable, inconsistent with the terms of the solicitation, and inadequately documented. GAO recommended that OPM conduct and document a new evaluation of quotations, amend the solicitation to adequately reflect OPM’s needs, make a new source selection decision, and that WBD be reimbursed its costs for pursuing the protest. Read more here. The full decision is available here.
Department of Defense (DOD); Navy: Design-Build/Design-Bid-Build IDIQ Multiple Award Construction Contract (MACC)
The DOD issued a solicitation for a total small business set-aside, $1 Billion IDIQ MACC for Commercial and Institutional Building Construction. Offers are due January 19, 2024. More information is available here.
Upcoming Government Contracts Presentations
WEBINAR: Unlocking the Secrets of Debriefings, Government Evaluation of Proposals and Protests, January 25, 2024, Katherine B. Burrows, Eric Valle. Read more here.
WEBINAR: 2024 Regulatory Year in Review, January 30, 2024, Jon Williams. Read more here.
WEBINAR: Navigating the FAR/DFARS: The Most Confusing and Little-Known Clauses, January 31, 2024, Lauren Brier, Annie B. Hudgins. Read more here.
CONFERENCE: Dating, Marriage, and Avoiding Divorce: Eliminating Failure in Mentor/Protégé Relationships, February 6, 2024. Isaias “Cy” Alba, IV. Read more here.
CONFERENCE: Key Tactics for Successful 8(a) M&A Transactions, February 6, 2024, Isaias “Cy” Alba, IV, Abigail “Abby” L. Baker. Read more here.
CONSTRUCTION / LABOR & EMPLOYMENT
Federal Acquisition Regulation (FAR) Council Final Rule: Use of Project Labor Agreements (PLAs) for Federal Construction Projects
On December 22, 2023, the FAR Council published a Final Rule amending the FAR and implementing Executive Order (EO) 14063, Use of Project Labor Agreements for Federal Construction Projects. EO 14063 mandates that federal government agencies require the use of PLAs for large-scale federal construction projects, where the total estimated cost to the government is $35 Million or more, unless an exception applies. Agencies still have the discretion to require PLAs for federal construction projects that do not meet the $35 Million threshold. The EO also directs the Office of Management and Budget (OMB) to issue implementation guidance to agencies on exceptions and reporting (see below). The Final Rule is available here and will be effective January 22, 2024. The Introduction is available here and the Small Entity Compliance Guide is available here.
Office of Management and Budget (OMB) Memorandum: Use of Project Labor Agreements (PLAs) on Federal Construction Projects
On December 18, 2023, OMB issued a memorandum creating guidance for exceptions to PLA requirements and reporting. Exceptions are allowed where a PLA would (1) inhibit competition, (2) would not promote the economy and efficiency, or (3) would be inconsistent with laws, regulations, and guidance. Agencies will need to provide documentation to support any of the exceptions that includes a statement and/or description of the nature of work to support its determination, address market research, and/or describe the procurement process for similar projects. The full memorandum is available here.
Upcoming Construction and Labor & Employment Presentations
WEBINAR: DBA Basics for Federal Construction Contractors, February 12, 2024, Nichole D. Atallah, Sarah L. Nash. Read more here.
LABOR & EMPLOYMENT
Judge Won’t Toss CBP Officers’ Bid for Overtime Travel Pay, Law360
A U.S. Court of Federal Claims judge allowed specially trained U.S. Customs and Border Protection officers to continue seeking overtime pay for time spent traveling for work, saying the government failed to prove travel time was not compensable. Read more here (subscription required). The full article is attached.
Upcoming Labor & Employment Presentations
PM WEBINAR: Successor Government Contractor Hiring Obligations Change: DOL’s Long Awaited Nondisplacement Rule Effective February 12, 2024, January 17, 2024, Nichole D. Atallah, Sarah L. Nash. Read more here.
CYBERSECURITY & DATA PRIVACY
Protecting Our Nation’s Data: Cybersecurity Compliance for Government Contractors, PilieroMazza Webinar Replay, January 4, 2024, Isaias “Cy” Alba, IV, Daniel Figuenick, III. Click here to view the recorded session.
Department of Defense (DOD) Proposed Rule: Cybersecurity Maturity Model Certification (CMMC) Program
On December 26, 2023, DOD published a Proposed Rule proposing to establish requirements for a comprehensive and scalable assessment mechanism to ensure defense contractors and subcontractors implement security measures, expand application of existing security requirements for Federal Contract Information (FCI), and add new Controlled Unclassified Information (CUI) security requirements for certain priority programs. The CMMC Program provides the DOD with the ability to verify that a defense contractor or subcontractor implemented the security requirements at each CMMC Level and is maintaining that status across the contract period of performance. The Proposed Rule is available here and guidance documents are available here. Comments close February 26, 2024.
Proposed CMMC Rule Contains No Surprises, but Raises Some Initial Questions, Federal News Network
The Defense Department packed a lot of detail into its proposed rule for the Cybersecurity Maturity Model Certification program, released just before the holiday break. But CMMC experts also see a lot of lingering questions that DOD will have to address in 2024 before finalizing the rule. Read more here.
National Aeronautics and Space Administration (NASA) Guidance: Space Security Best Practices Guide
On December 22, 2023, NASA released the first draft of the Space Security Best Practices Guide which is posed to enhance cybersecurity for public and private sector space activities. The Guidance document is available here.
Cybersecurity Contract Market Nears $11 Billion, Led by Pentagon, Bloomberg Government
Fiscal 2023 cybersecurity procurement has surpassed last year’s total spending by half a billion, leading to a new high for the market before all Defense Department reporting is complete. Read more here (subscription required).
