Weekly Update for Government Contractors and Commercial Businesses – August 2023 #3 | PilieroMazza PLLC
Clocking in with PilieroMazza: Labor and Employment News for Government Contractors: DOL Finalizes Landmark Changes to Davis-Bacon Act: What Federal Construction Contractors Need to Know, PilieroMazza Podcast, Sarah L. Nash and Nichole D. Atallah. Click here to listen to the podcast.
Department of Labor (DOL) Announces Final Rule to Modernize Davis-Bacon Act (DBA)
The DOL announced the issuance of the final rule “Updating the Davis-Bacon and Related Acts Regulation” to update regulations that implement the DBA and Davis-Bacon and Related Acts to better reflect the needs of construction workers on federal construction investments. Read more here. The unpublished final rule is available here and is effective October 23, 2023.
Department of Labor (DOL), Alabama’s Builders, Contractors Form Alliance to Make Construction Workplaces Safer
Each year, hundreds of construction workers suffer injuries, sometimes fatal, while on the job. The alliance seeks to protect workers by reducing and preventing exposure to hazards during trenching and excavation operations, while using scaffolding, working in confined spaces and when installing electrical components. The alliance will also serve to promote OSHA’s Safe + Sound Week 2023 from August 7-13, 2023. Read more here.
Department of Labor (DOL) Recovers $1.6 Million in Back Wages, Damages from North Carolina Contractor for 188 Workers Misclassified as Independent Contractors
The court’s action was prompted by the findings of an investigation by the department’s Wage and Hour Division that found R&R Construction Maintenance misclassified the employees as independent contractors and did not pay them required overtime wages for hours over 40 in a workweek, in violation of the Fair Labor Standards Act (FLSA). The division also learned the employer misapplied the motor carrier overtime exemption for two employees and did not pay another employee for their last day of work, also FLSA violations. Read more here.
Department of Labor (DOL), National Governors Association Announce Partnership to Enhance State Workforce Development Systems
The DOL announced a partnership with the National Governors Association to bring federal partners, state policy advisors, workforce development boards and agencies, and other policymakers together to support states’ planning processes. Read more here.
Department of Labor (DOL) Enters Agreement with Contractor Subsidiary to Resolve Alleged Hiring Discrimination in Minnesota
The DOL entered a conciliation agreement with a federal defense contractor to resolve alleged discrimination against Black applicants who applied for assembler positions between 2018 and 2019 at its Burnsville facility. Read more here.
Bill to Alleviate Federal Pay Compression Introduced by House Democrats, Government Executive
The Pay Compression Relief Act would effectively allow General Schedule employees to receive annual increases to both basic and locality pay, even if they have already hit the federal pay cap. Read more here.
The ‘Future Is At Risk’ for Government’s Biggest Civilian Payroll Provider, Study Finds, Government Executive
The future of the federal government’s largest civilian payroll provider—the Agriculture Department’s National Finance Center—is “at risk without prompt action,” an expert panel writes in a new report requested by the Agriculture Department. Read more here.
IRS Needs to Significantly Ramp Up Use of Bonus Pay Incentives, Inspector General Says, Government Executive
The Internal Revenue Service began implementing a years-long hiring surge that is expected to bring on a net gain of tens of thousands of new staff, but the agency is essentially not using financial incentives intended to boost recruiting and retention. Read more here.
Upcoming Labor & Employment Presentations
As the federal government’s fiscal year draws to a close, we expect to see an increase in agencies awarding contracts and contractors protesting those awards. A bid protest is a significant event for any government contractor. When contractors decide to protest a procurement, or are faced with a challenge to their award, they frequently turn to PilieroMazza’s protest attorneys—experienced practitioners in the field who work diligently to ensure the government complies with the law and treats their clients in a fair and impartial manner. This blog (1) summarizes notable PilieroMazza protest victories, (2) offers important insights into how each protest can be used to address key procurement challenges, and (3) helps contractors better prepare during the proposal process to avoid future protests. Read more here.
On July 27, 2023, the Small Business Administration (SBA) released its Semi-Annual Regulatory Agenda (Agenda) summarizing nine current and projected rulemakings. Notably, the SBA identified these rules as likely to have a significant economic impact on a large number of small businesses in the government contracting community. According to the Agenda, three rules are in the Proposed Rule Stage, three rules are in the Final Rule Stage, and three rules have been updated as Completed Actions. PilieroMazza briefly describes each rule and its potential impact. Read more here.
Federal Acquisition Regulation (FAR): Explanations to Unsuccessful Offerors on Certain Orders Under Task and Delivery Order Contracts
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration are proposing to amend the FAR to implement a section of the National Defense Authorization Act for FY2020 that requires explanations to unsuccessful awardees on certain orders under task order and delivery order contracts. The proposed rule is available here. Comments are due October 10, 2023.
Information Collection: National Aeronautics and Space Administration (NASA) Small Business Mentor Protégé Program (MPP)
NASA is proposing to amend the NASA Federal Acquisition Regulation Supplement (NFS) to reflect updates to NASA’s MPP including: the requirement of Small Business Specialists’ concurrence on the signed letter of endorsement; requirements associated with credit received towards subcontracting goals; the change of the MPP reporting requirement from semi-annually to annually; identified the NASA Mentor Protégé Program Office; and clerical, semantic improvements. NASA also proposes to amend the NFS language to reflect the annual negotiation of its small business percentage goals. Lastly, the NFS will be amended to emphasize collaboration amongst representatives from the Office of Small Business Programs, Office of Procurement, and Program Offices to reduce barriers to entry and to opportunities for all small business concerns and Historically Black Colleges and Universities or Minority Institutions. The notice is available here. Comments are due September 7, 2023.
Class Deviation — Temporary Authorizations for Covered Contracts Related to Ukraine
The Office of the Under Secretary of Defense submitted a memo that, effective immediately, revises and supersedes Class Deviation 2023 – O0003, issued on December 23, 2022. This revision is necessary to clarify the definition of a “covered contract” to mean that one of the three conditions in the definition is met; to provide special reporting requirements when contracting officers use the temporary acquisition flexibilities for covered contracts; and to address multiyear contracting authorities provided by section 1244(c) of the James M. Inhofe National Defense Authorization Act (NDAA) for FY2023. This class deviation implements sections 1244(a) and (c) of the NDAA for FY2023 and remains in effect until September 30, 2024. Read more here.
Acquisition Career Management Program, Department of Energy (DOE)
On August 2, 2023, the DOE issued an order that establishes overarching requirements governing training, continuous learning, career management and career development for the DOE’s certified workforce, including requirements and responsibilities for the DOE Acquisition Career Management Program; Office of Asset Management Personal Property Management Career Development Program; and Office of Project Management Career Development Program. More information is available here and here.
General Services Administration (GSA) Acquisition Regulation, Update to Office of Management and Budget (OMB) Approval Table for Paperwork Reduction Act. GSA is issuing this final rule as a technical amendment to the General Services Administration Acquisition Regulation to update the table of approved acquisition related information collections from the OMB under the Paperwork Reduction Act. The technical amendment to the final rule is available here and is effective September 8, 2023.
Federal Agencies Often Neglect U.S. Territories. New Legislation Aims to Fix That. Government Executive
A new bill in Congress would establish special advisors across federal agencies to specialize in U.S. territories and certain Pacific nations. The bill would bolster expertise in territories as island communities face increasing threats from climate change. Read more here.
Agency Information Collection Activities
- Proposals, Submissions, and Approvals: Research Agreement Application for the Use of Office of Personnel Management (OPM) Record-Level Data. OPM collects and maintains record-level data on job applicants, federal employees, annuitants, and other beneficiaries of OPM’s programs and services. Research Agreements for the Use of OPM Record-Level Data is OPM’s proposed mechanism to share data to further policy-relevant federal workforce research. OPM will collect information through a Research Agreement Application to enable OPM to determine whether providing record-level data to a research entity is in the public interest. This is a new collection to establish OPM’s Research Agreement program. The published notice and request for comments is available here. Comments are due September 13, 2023.
- Proposals, Submissions, and Approvals: Requirements for Recognition as a Veterans Affairs (VA) Accredited Organization. An organization must apply for VA recognition, supplying information to demonstrate that it satisfies the legal requirements for recognition. The information submitted by the organizations in conjunction with a request for recognition is used by VA in reviewing accreditation applications to determine whether organizations meet the requirements for VA recognition. VA relies on this information to ensure that it is granting recognition only to organizations that can provide long-term, competent representation to VA claimants. The published notice is available here. Comments are due October 13, 2023.
- Proposed eCollection eComments Requested: Revision of a Previously Approved Collection; Office of Justice Programs (OJP) Solicitation Template, Department of Justice (DOJ). The solicitation template collection was previously streamlined to move static instructions and guidance that do not frequently change from year to year to a Grant Application Resource Guide web page. The result is a more concise, user-friendly solicitation document that draws closer attention to the program-specific details and requirements in order to lessen confusion for the applicant. Additionally, it enables the agency to revise static guidance on the web page as necessary, reducing the need to re-issue program solicitations already released to the public. The notice is available here. Comments are due October 10, 2023.
Upcoming Government Contracts Presentations
Report Reveals ‘Sudden Surge’ in Cyberattacks Targeting Government Agencies, Government Executive
According to a new report, cyberattacks impacting government agencies and the public sector spiked by 40% in recent months. The report found that cyberattacks targeting government agencies and the public sector increased at an alarming rate in recent months, as threat actors unleashed a slate of novel malware campaigns that impacted financial institutions, healthcare services and critical infrastructure industries. Read more here.
Government Contractors Grapple With Enforcement Challenges of TikTok Ban, Government Executive
Industry groups are raising censorship and privacy concerns over a ban of popular social media app TikTok on devices used by government contractors. Read more here.