Weekly Update for Government Contractors and Commercial Businesses – September 2021 #2

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LABOR & EMPLOYMENT

New Vaccine Mandate Guidance Issued for Federal Contractors: 5 Things You Need to Know, September 27, 2021, Nichole Atallah, Sarah Nash, and Matthew Stokes
On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued much-anticipated guidance (Guidance) regarding President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. Issued September 9, 2021, Executive Order 14042 announced that parties who contract with the federal government would soon be subject to mandatory COVID-19 vaccinations. The Task Force’s Guidance sets forth required workplace safety protocols for federal contractors and subcontractors with a covered contract, including details on the implementation of President Biden’s vaccine mandate. PilieroMazza’s Labor & Employment Group addresses five critical developments from the Guidance below. Read more here.

Update on NASA Implementation of Executive Order 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors
The National Aeronautics and Space Administration (NASA) published a memorandum the explains that NASA Procurement is working with the Office of Management and Budget and the Office of Federal Procurement Policy to develop a contract clause required to be implemented by Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, and associated guidance. Upon receiving the approved guidance from the Safer Federal Workforce Task Force, NASA anticipates that the contract clause will be issued on or about October 8, 2021, with an effective date of October 15, 2021. Read more here.

Tip Regulations Under the Fair Labor Standards Act: Partial Withdrawal
The Department of Labor (DOL) published a final rule withdrawing two portions of the final rule it promulgated in December 2020 (2020 tip final rule). The 2020 tip final rule amended DOL’s tip regulations to address the Consolidated Appropriations Act of 2018 amendments to section 3(m) of the Fair Labor Standards Act, among other things. Specifically, this new final rule withdraws two portions of the 2020 tip final rule that have not yet gone into effect addressing civil money penalties and finalizes proposed changes to those portions of the 2020 tip final rule. It also modifies regulatory provisions adopted by the 2020 tip final rule addressing managers and supervisors. This final rule is effective November 23, 2021. Read more here. A related DOL press release is available here.

Upcoming Labor & Employment Presentations

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

Making a Good Faith Effort: The Recent Update to FAR Subcontracting Plan Regulations, September 21, 2021, Anna Wright
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration recently published a final rule that amends the Federal Acquisition Regulation (FAR) to better explain how contracting officers should evaluate “good faith efforts” on the part of prime contractors to comply with their small business subcontracting plans. These explanations were already included in Small Business Administration regulations through a final rule published on November 29, 2019. But the FAR amendments will allow contracting officers to more easily determine when and how liquidated damages should apply if a prime contractor fails to make a good faith effort to comply with its subcontracting plan. Read more here.

GSA Adds SDVOSB Pool on Polaris GWAC
The General Services Administration (GSA) reported that Polaris, GSA’s small business government-wide acquisition contract focused on providing all federal government agencies and other eligible entities with modern technologies, will include a service-disabled veteran-owned small business (SDVOSB) set-aside pool. With the addition of the SDVOSB pool, Polaris will be structured to include four separate diverse small business pools. This strategy seeks to enable GSA to (i) provide the federal marketplace with acquisition solutions from key industry segments for which there is procurement set-aside authority, (ii) provide equitable business opportunities for historically underserved and marginalized small businesses, and (iii) support customer agency small business program goals. Read more here.

House-Passed Fiscal Year 2022 NDAA Contains Numerous Amendments Important to Small Business Contractors
The HUBZone Contractors National Council reported that the U.S. House of Representatives passed H.R. 4350, the Fiscal Year 2022 National Defense Authorization Act (NDAA), which includes amendments that impact small business contractors. Next, the U.S. Senate will pass its own version of the NDAA, after which time the House and Senate will conference to determine the final version.

Please see the following floor amendments, which were included in H.R. 4350 and may be of interest.

  • Floor #314—Clarifies that the HUBZone price preference applies to task orders. Amends the Small Business Act to clarify that the HUBZone Price Evaluation Preference applies to certain contracts. Read more here.
  • Floor #186—Creates category management exemptions for tier zero contracts. Exempts contracts awarded to small businesses classified as tier zero from category management or successor strategies for contract consolidation. Does not allow these contracts to count toward attainment of a category management contract goal. Read more here.
  • Floor #365—Raises sole source thresholds for all socioeconomic programs from $4 / $7.5 to $8 / $10 million (does not eliminate option years, this is total over the life of the contract). Raises sole source contracting thresholds for certain small businesses (8(a), HUBZone, service-disabled veteran-owned, and women-owned) from current levels to $10,000,000 for manufacturing contracts and $8,000,000 for all other types. Read more here.
  • Floor #352—Transfers decisions for HUBZones to Office of Hearings and Appeals (OHA). Transfers final decision-making power of protested HUBZone small business status of a small business from the Associate Administrator of the Office of Government Contracting & Business Development to the Small Business Administration (SBA) OHA. Read more here.
  • Floor #337—Requires Department of Defense (DOD) Report on impact of Cybersecurity Maturity Model Certification (CMMC) on small businesses. Requires DOD to submit a report on the impact of CMMC on small businesses within 120 days. The report must include estimated cost burden for each CMMC level, anticipated decrease in number of small businesses as a result of CMMC, and how the DOD plans to mitigate the negative effects to small businesses resulting from CMMC. Read more here.
  • Floor #26—Raises small business contracting goals.
    • Increases overall prime contracting small business goal from 23% to 25%;
    • Increases service-disabled veteran-owned small business from 3% to 4%;
    • Increases HUBZone from 3% to 4%;
    • Increases women-owned small business from 5% to 6% for Fiscal Year 2022 & Fiscal Year 2023, and 7% for Fiscal Year 2024 and thereafter; and
    • Increases socially and economically disadvantaged [8(a)] from 5% to 11% of all prime and subcontract awards for Fiscal Year 2022.
    • Read more here.
  • Floor #412—Requires a company to update their small business status in SAM / notify contracting officers if status changes within 2 days. Requires the status of a company be updated in the System for Award Management when a final decision is made pursuant to such concern’s small business or socioeconomic (i.e. HUBZone, service-disabled veteran-owned, women-owned, 8(a)) status. Requires companies to notify contracting officers for which they have pending bids on contracts where they lost such status. Read more here.
  • Floor #149—Adds cyber counseling capability to Small Business Development Centers (SBDCs). Establishes a program for SBDC employees to get cyber counseling certified in assisting small businesses with planning and implementing cybersecurity planning. Authorizes the SBA to reimburse SBDCs for employee certification costs up to $350,000 per fiscal year. Read more here.
  • Floor #82—Pilot program on secured manufacturing technologies. Creates 3-year Pilot Program in concert with Manufacturing Innovation Institutes (MII) to transfer digitally secured manufacturing technologies to defense industrial base contractors and provides reimbursement to MII’s for associated transfer costs and requires annual briefing submission to the House and Senate Armed Services Committees. Read more here.
  • Floor #165—Report on impact of mergers and acquisitions. Requires the Comptroller General of the U.S. to submit a report to Congress on the impact of mergers and acquisitions of defense industrial base contractors on the procurement processes of DOD. Read more here.

A summary of the full House Fiscal Year 2022 NDAA can be found here.

Amendments to the FAR Buy American Act Requirements: Extension of Time for Comments
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration published an extension of comment period to the proposed rule issued on July 30, 2021, that would amend the Federal Acquisition Regulation to implement an executive order addressing domestic preferences in government procurement. The deadline for submitting comments has been extended from September 28, 2021, to October 28, 2021. Read more here.

The Buy American Act: Proposed Rules
The Congressional Research Service published an Insight on September 22, 2021, regarding Buy American Act proposed rules. It provides an overview of the proposed rules and mentions the Federal Acquisition Regulatory Council’s guidance regarding feedback on the proposed rules. Read more here.

Civil Monetary Penalties Inflation Adjustments
The Small Business Administration published a final rule to amend its regulations to adjust for inflation the amount of certain civil monetary penalties that are within the jurisdiction of the agency. The rule is effective September 24, 2021. Read more here.

DOC Expands Definition of Eligible Tribal Entities
The Department of Commerce (DOC) published a final rule to expand the definition of tribal entities eligible to receive grants under the Public Works and Economic Development Act of 1965 to include for-profit tribal corporations—so long as they are wholly owned by, and established exclusively for the benefit of, a tribe. The rule is effective September 24, 2021. Read more here.

Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities
The Department of Commerce (DOC) published an advance notice of proposed rulemaking. Executive Order 13984 of January 19, 2021, “Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities,” directs the Secretary of Commerce (Secretary) to implement regulations to govern the process and procedures that the Secretary will use to deter foreign malicious cyber actors’ use of U.S. Infrastructure as a Service products and assist in the investigation of transactions involving foreign malicious cyber actors. DOC issued this advance notice to solicit public comments on questions pertinent to the development of regulations pursuant to the executive order. Comments are due October 25, 2021. Read more here.

DOD Planning to Create Big Data Platform to Better Understand Supply Chain Risks
Federal News Network reported that the Department of Defense (DOD) publicly announced a new supply chain resiliency working group on September 3, 2021, “to address systemic barriers currently limiting supply chain visibility, conduct resiliency assessments and develop effective mitigation actions.” Federal News Network also reported that DOD is asking vendors for feedback about how to establish a new blanket purchase agreement for supply chain data and information sharing. Read more here.

President Biden Picks Nominee for Army Acquisition Chief
Inside Defense reported that President Biden intends to nominate Douglas Bush for Assistant Secretary of the Army for Acquisition, Logistics, and Technology. Inside Defense further reported that Mr. Bush currently serves as the Acting Assistant Secretary of the Army for Acquisition, Logistics, and Technology, where he is responsible for leading the Army’s acquisition enterprise, overseeing all Army acquisition programs, and advising the Secretary of the Army on acquisition programs and policies. Read more here.

Advisory on APT Exploitation of ManageEngine ADSelfService Plus Vulnerability
The Cybersecurity and Infrastructure Security Agency (CISA) announced that the Federal Bureau of Investigation (FBI), CISA, and Coast Guard Cyber Command (CGCYBER) released a Joint Cybersecurity Advisory detailing the active exploitation of an authentication bypass vulnerability in Zoho ManageEngine ADSelfService Plus—a self-service password management and single sign-on solution. The exploitation of this vulnerability poses a serious risk to critical infrastructure companies, U.S.-cleared defense contractors, academic institutions, and other entities that use the software. CISA strongly encourages users and administrators to review the cybersecurity advisory and immediately implement the recommended mitigations. Read more here.

VA Considering Changes to Enterprise Cloud Structure
FedScoop reported that the Department of Veterans Affairs (VA) is considering changing the current mix of providers it depends on for enterprise cloud services. The contract through which the VA procures enterprise cloud services is set to expire next year, and, in anticipation of that, the VA issued a request for information that considers the possibility of adding to or replacing the two industry providers—Microsoft Azure and Amazon Web Services—it currently relies on for its cloud needs. Read more here.

GSA Plans One-Stop Shop Cloud Marketplace
Federal Computer Week reported that the General Services Administration (GSA) plans to launch a cloud marketplace to serve as a comprehensive framework and one-stop shop for federal agencies seeking cloud solutions. The marketplace would feature both post-award contract management tools and professional IT services, along with a “foundational set of requirements” to ensure cloud solutions comply with a baseline set of security requirements and FedRAMP guidance. Read more here.

One Million Borrowers Apply for Direct Forgiveness Through SBA PPP Portal
The Small Business Administration (SBA) announced that its Paycheck Protection Program (PPP) Direct Borrower Forgiveness Portal recorded its one-millionth PPP loan forgiveness application for borrowers seeking forgiveness for loans of $150,000 or less. Since the portal’s launch on August 4, 2021, the SBA has received applications for over $17 billion of relief from more than one million of America’s smallest businesses, furthering President Biden’s commitment to equity across the U.S. government. Read more here.

Upcoming Government Contracts Presentations

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.

WEBINAR: Construction Webinar Series: Building Compliance: Construction Industry Concerns Under FCA, November 9, 2021, Cy Alba and Sarah Nash. Read more here.

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