Weekly Update for Government Contractors and Commercial Businesses – August 2023 #4 | PilieroMazza PLLC
The Best Lawyers in America® Recognizes 3 PilieroMazza Attorneys in Its 2024 Edition, PilieroMazza News
PilieroMazza is proud to announce the inclusion of Nichole D. Atallah and Jessica A. duHoffmann in the 30th edition of The Best Lawyers in America® and Paul H. Tracy in the fourth edition of Best Lawyers: Ones to Watch® in America. Read more here.
SBA to Require Individually-Owned 8(a) Firms to Support Social Disadvantage Prior to 8(a) Award Approval, PilieroMazza Client Alert, Meghan F. Leemon
As PilieroMazza recently reported, on July 19, 2023, the U.S. District Court for the Eastern District of Tennessee declared that the Small Business Administration’s (SBA) rebuttable presumption of social disadvantage violated the equal protection rights of a government contractor and prohibited SBA’s use of the rebuttable presumption in administering the 8(a) Business Development Program. In this client alert we cover important developments 8(a) contractors should pay close attention to in order to stay in compliance and compete for and be awarded 8(a) contracts. Read more here.
Small Business Investment Company (SBIC) Investment Diversification and Growth; Public Webinar, Small Business Administration (SBA)
The SBA is holding a webinar to update the public on new regulations governing the SBIC program contained in the final rule titled Small Business Investment Company Investment Diversification and Growth that goes into effect on August 17, 2023. The public webinar will be held on August 28, 2023, from 4 PM to 5 PM ET, and will be live streamed via Microsoft Teams. Questions should be submitted by email by August 24, 2023. The published notification is available here.
Partnership Agreement Between the Small Business Administration (SBA) and Department of Energy (DOE) for the 8(a) Business Development Program, PF 2023-34 Acquisition Guide, Chapter 19, Attachment 2
This version of the DOE Acquisition Guide replaces the previous version of Attachment 2 Partnership Agreement Between the SBA and DOE, dated 2013, with the current version, dated 2022. Through the Partnership Agreement, the SBA is delegating its contract execution functions to the procuring activity and is authorizing the DOE to execute and sign contracts on behalf of the SBA and contract directly with the qualified 8(a) Program Participant. The DOE will continue to perform all other required contract administration services. More information is available here. Version 5 of the DOE Acquisition Guide for FY2023 is available here (the Partnership Agreement begins on page 520 of the PDF).
Comptroller General’s Advisory Council on Government Auditing Standards, Government Accountability Office (GAO)
The Comptroller General’s Advisory Council on Government Auditing Standards will hold a meeting on September 14, 2023, from 10:00 AM to 4:00 PM ET, to provide input and recommendations on revisions to Government Auditing Standards, also known as the Yellow Book. The purpose of the meeting is to discuss proposed revisions and updates because of comments received on the January 2023 Yellow Book Exposure Draft. The agenda and discussion materials for the meeting will be available here one week before the meeting. The notice is available here.
Submission for OMB Review: Federal Audit Clearinghouse, General Services Administration (GSA)
Non-federal entities (states, local governments, Indian Tribes, institutions of higher education, and nonprofit organizations) are required to have audits conducted of their federal award expenditures and file the resulting reporting packages and data collection Form SF-SAC with the Federal Audit Clearinghouse. Planned changes are intended to make the reporting process easier, improve data integrity, and ensure compliance. The notice is available here. Comments are due September 15, 2023.
Agency Information Collection:
- Challenge and Prize Competition Solicitations Generic Clearance, Department of Commerce (DOC)
The DOC is extending a prior information collection to allow for an additional 30 days for public comments. The information collected will be for the following purposes: verify data sources, understand whether the solution provider met the technical requirements for the challenge, complete the challenge to the specifications of the challenge parameters to assist in technical review and judging of the solutions that are provided. In addition, the information can be used to determine if valid methodology, appropriate approvals for use of data sources, and other resources used in the solution development are valid. The published notice is availablehere. Comments are due September 20, 2023.
- Contractor Fitness/Security Screening Request Form; OMB Control No. 1601-NEW, Department of Homeland Security (DHS)
This information collection will be used to initiate the fitness screening process for determining if a person invited to perform work under a contract for the DHS is fit to perform such work and eligible for access to DHS resources, based on the risk levels of the designated position. This information collection does not have an impact on small businesses or other small entities. The information collection for DHS Form 11000–25 is voluntary; however, failure to provide this information may delay or prevent an individual’s fitness determination and eligibility for physical and logical access to federally controlled facilities or information systems. The notice is available here. Comments are due October 16, 2023.
- 60-Day Public Comment Request, Department of Health and Human Services (HHS)
The Project/Performance Site Location(s), Project Abstract, and Key Contacts forms (the Forms) provide the federal grant-making agencies an alternative to the Standard Form 424 data set and form. Previously, 26 federal grant-making entities were using this information collection. This information collection will now be utilized by 51 federal grant-making agencies and additional grant-making entities. To improve the transparency of reading and enhance user-friendliness of the supporting statement A, language modifications were implemented within sections 3 through 16. For section 14, Cost to the Federal Government was adjusted to the 2023 base general schedule. Grants.gov is requesting a revision of this collection to allow for data reporting and publication by agencies requesting to use the common form. The information collection expires on November 30, 2025. Grants.gov seeks a three-year clearance of these collections. The notice is available here. Comments are due October 13, 2023.
Defense Federal Acquisition Regulation Supplement (DFARS):
- Defense Commercial Solutions Opening (DFARS Case 2022-D006), Department of Defense (DOD)
DOD is issuing a final rule amending the DFARS to implement a section of the National Defense Authorization Act (NDAA) for FY2022 that authorizes DOD to acquire innovative commercial products and commercial services using general solicitation competitive procedures. This final rule also implements a section of the NDAA for FY2023. The final rule is available here and is effective August 17, 2023.
- Technical Amendments, Department of Defense (DOD)
DOD is amending the DFARS to make needed editorial changes. The technical amendment to the final rule is available here and is effective August 17, 2023.
Data Collection Available for Public Comments, Small Business Administration (SBA):
- SBA established a pilot loan program, the Intermediary Lending Pilot Program (ILPP), to make direct loans to eligible intermediaries, for the purpose of making loans to startup, newly established, and growing small business concerns. This requested information, which will be provided by intermediaries, will be used to monitor program effectiveness while minimizing risk to the federal taxpayer. The notice is available here. Comments are due October 16, 2023.
- In accordance with regulations and policy, the Small Business Development Centers (SBDCs) must submit with their proposal SBA Form 1224, Grant/Cooperative Agreement Cost Sharing Proposal, to SBA for verification of the recipient’s share of the project cost. The notice is available here. Comments are due October 16, 2023.
Health Resources Priorities and Allocations System (HRPAS), Department of Health and Human Services (HHS)
HHS is issuing a Notice of Proposed Rule Making (NPRM) to establish standards and procedures by which it may require acceptance and priority performance of certain contracts or orders to promote the national defense over other contracts or orders with respect to health resources. This proposed rule also sets new standards and procedures by which HHS may allocate materials, services, and facilities to promote the national defense. The NPRM is available here. Comments are due September 15, 2023.
Prompt Payment Interest Rate; Contract Disputes Act, Bureau of the Fiscal Service
Notice is given that the Secretary of the Treasury determined that the rate of interest applicable for the period beginning July 1, 2023, and ending on December 31, 2023, is 4-7/8 per centum per annum. The notice is available here.
Pathways Programs, Office of Personnel Management (OPM)
OPM is proposing to modify the regulations for the Pathways Programs to align the program to better meet the federal government’s needs for recruiting and hiring interns and recent graduates. OPM proposes to update the regulations for the Pathways Programs to facilitate a better applicant experience, to improve developmental opportunities for Pathways Program participants, and to streamline agencies’ ability to hire participants in the Pathways Programs, especially those who successfully completed their Pathways requirements and are eligible for conversion to a term or permanent position in the competitive service. Robust Pathways Programs with appropriate safeguards to promote its use as a supplement to, and not a substitute for, the competitive hiring process is essential to boosting the federal government’s ability to recruit and retain early career talent. The published proposed rule is available here. Comments are due October 2, 2023.
White House Unveils Multiagency R&D Priorities for FY2025 Budget, GovConWire
The White House Office of Science and Technology Policy and the Office of Management and Budget have issued a memorandum outlining the current administration’s research and development priorities to guide federal agencies as they formulate their budget submissions for FY2025. Read more here.
National Aeronautics and Space Administration (NASA) Releases Safety and Mission Assurance Engineering Contract III Solicitation, GovConWire
NASA is accepting industry proposals for the third iteration of its single-award, indefinite-delivery/indefinite-quantity contract covering safety and mission assurance engineering services. Read more here.
Department of Defense (DOD) Final Rule Makes Tech Acquisition Program Permanent, Law360
The DOD made permanent a pilot program that streamlines the acquisition of new, innovative technologies, according to a notice in the Federal Register. Read more here (subscription required).
Department of Defense (DOD), Veterans Affairs (VA) Executives Team Up on Health Care IT Improvements, DOD News
Top information technology leaders from the DOD and VA are joining forces to improve system interoperability and collaboration at a first-of-its-kind health care facility serving both active-duty service members and veterans. Read more here.
Senator Ossoff’s Bipartisan Bill to Support Small Businesses Owned by Combat-Disabled Veterans Passes Senate
Senators Jon Ossoff and Joni Ernst passed the bipartisan Investing in VETS Act as part of this year’s National Defense Authorization Act to help service-disabled veteran business owners compete for federal government contracts, helping expand their business opportunities to new markets. Read more here.
Compliance Problems Loom for E-Commerce Plan at U.S. Buying Office, Bloomberg Government
An online tool to streamline agencies’ purchases of common commercial goods failed on more than half of its performance metrics even as more federal employees started to use it, according to a government watchdog report. Read more here (subscription required).
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Propose Federal Acquisition Regulation (FAR) Amendment Rule to Include Post-Award Debriefing Requirement, ExecutiveGov
The DOD, GSA, and NASA jointly released a proposed rule to amend the FAR to require contracting officers to provide explanations to unsuccessful offerors on certain contracts. Read more here.
Multiple Award Schedule (MAS) Pricing Paradoxes, The Coalition for Government Procurement (CGP)
Currently, paradoxes in the MAS contract negotiation process and procedures are creating significant, contradictory, and unnecessary hurdles for contracting officers seeking to negotiate “fair and reasonable” pricing. In turn, contractors, including small business contractors, are seeing impacts regarding their access to the federal market and opportunities to compete for customer agency requirements. Read more here.
Upcoming Government Contracts Presentations
WEBINAR: Unlocking the Secrets of Debriefings, Government Evaluation of Proposals and Protests, September 7, 2023, Katherine B. Burrows and Eric Valle. Read more here.
WEBINAR: How to Use and Protect your Intellectual Property When Performing Federal Contracts, September 27, 2023, Isaias “Cy” Alba, IV. Read more here.
GOVERNMENT CONTRACTS / CONSTRUCTION
8(a) Construction Contractors Get More Time to Meet SBA’s Bona Fide Office Requirement, PilieroMazza Blog, Meghan F. Leemon
On August 21, 2023, Small Business Administration (SBA) Administrator Isabella Casillas Guzman announced the extension of the 8(a) Business Development Bona Fide Place of Business (BFPOB) Requirement Moratorium from September 30, 2023 to September 30, 2024. Construction contractors in the 8(a) Program should make note of the new date and prepare accordingly to ensure eligibility for future contracts. Read more here.
LABOR & EMPLOYMENT
Clocking in with PilieroMazza: The NLRB Strikes Again: Reasons to Revisit Independent Contractor Classifications, PilieroMazza Podcast, Sarah L. Nash and Nichole D. Atallah. Click here to listen to the podcast.
Deadline Approaches for Biden’s 5.2% Pay Raise Plan, Government Executive
The President must formalize his proposal to give federal employees their largest annual pay increase in more than 40 years by the end of August or automatic boosts to locality pay will kick in. Read more here.
Bill to Ban Agencies from Deducting Union Dues from Feds’ Paychecks Pushed in House, Government Executive
A group of conservative House lawmakers introduced legislation that would eliminate federal employees’ ability to pay union dues directly from their pay checks, attracting outcry from labor groups. Unions say the measure is designed not to help workers, but rather to interfere with their decision whether to join a labor organization. Read more here.
Agency Information Collection Activities; Proposals, Submissions, and Approvals: Privacy Training, Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)
DOD, GSA, and NASA are seeking to extend a previous information collection requirement regarding privacy training and the information that contractors must submit to comply with FAR 52.224-3(d) requiring contractors to:
- Maintain a record of initial and annual privacy training, for the contractor’s employees that: (a) have access to a system of records; (b) create, collect, use, process, store, maintain, disseminate, disclose, dispose, or otherwise handle personally identifiable information on behalf of an agency; or (c) design, develop, maintain, or operate a system of records; and
- Provide documentation of completion of such privacy training to the contracting officer if requested. The contracting officer will use the information in contract administration and to establish that all applicable contractor and subcontractor employees comply with the privacy training requirements. The unpublished notice is available here. Comments are due October 20, 2023.
Submission for OMB Review: Comment Request, Department of Defense (DOD)
DOD is seeking clearance from OMB for an information collection requirement that is necessary to obtain and record responses from contractor personnel employed within the Office of the Under Secretary of Defense for Policy and its components. The survey results are analyzed by the Leadership and Organizational Development Office to assess the progress of the current human capital strategy and to address emerging human capital and training issues. The unpublished notice is available here. Comments are due September 20, 2023.
Prevailing Rate Systems:
- Abolishment of Allegheny, Pennsylvania, as a Non-appropriated Fund (NAF) Federal Wage System (FWS) Wage Area, Office of Personnel Management (OPM)
OPM is proposing a rule to abolish the Allegheny, Pennsylvania, NAF FWS wage area and redefine Cuyahoga County, Ohio, to the Macomb, Michigan, NAF wage area; Trumbull County, Ohio, to the Niagara, New York, NAF wage area; Allegheny and Butler Counties, Pennsylvania, to the Cumberland, Pennsylvania, NAF wage area; Harrison County, West Virginia, to the Prince William, Virginia, NAF wage area; and Westmoreland County, Pennsylvania, will no longer be defined. These changes are necessary because NAF FWS employment in the survey area is now below the minimum criterion of 26 wage employees to maintain a wage area, and the local activities no longer have the capability to conduct local wage surveys. The proposed rule is available here. Comments are due September 14, 2023.
- Redefinition of the Northeastern Arizona and Utah Appropriated Fund Federal Wage System (FWS) Wage Areas, Office of Personnel Management (OPM)
OPM is issuing a proposed rule to redefine the geographic boundaries of the Northeastern Arizona and Utah appropriated fund FWS wage areas for pay-setting purposes. The proposed rule would redefine Washington County, UT, and several National Parks portions of Garfield, Grand, Iron, San Juan, and Wayne Counties, UT, to the Northeastern Arizona wage area. This change is based on a recent consensus recommendation of the Federal Prevailing Rate Advisory Committee. The proposed rule is available here. Comments are due September 14, 2023.
Maximum Per Diem Reimbursement Rates for the Continental United States (CONUS), General Services Administration (GSA)
The GSA FY2024 per diem reimbursement rates review resulted in lodging and meal allowance changes for certain locations within CONUS to provide for reimbursement of federal employees’ subsistence expenses while on official travel. This notice applies to travel performed on or after October 1, 2023, through September 30, 2024. The notice is available here.
Office of Information and Regulatory Affairs (OIRA) Conclusion of EO 12866 Regulatory Review, Fair Chance to Compete for Jobs, Office of Personnel Management (OPM)
OIRA OPM is finalizing a rule pertaining to when, during the hiring process, a hiring agency can request information typically collected during a background investigation from an applicant for federal employment. This rule establishes requirements for the timing of collection of criminal history information and for governing complaint procedures under which an applicant for a position in the civil service may submit a complaint, or any other information, relating to compliance by an employee of an agency in reference to the timing of collection of criminal history information. Finally, the rule outlines adverse action procedures that will apply when it is alleged that an agency employee violated the requirements and appeal procedures that will be available from a determination by OPM adverse to the federal employee. More information is available here.
Upcoming Labor & Employment Presentations
PM WEBINAR: Overhaul of Davis-Bacon Act Increases Wage Requirements and Enforcement for Federal Construction Contractors, September 14, 2023, Sarah L. Nash. Read more here.
NATIVE AMERICAN LAW & TRIBAL ADVOCACY
Department of the Interior (DOI) Awards $72.5M to Tribes for Electricity, Clean Energy, Law360
Native American communities, in what federal officials described as a historic investment, will get $72.5 Million in funding through a new DOI program aimed at connecting tribal homes to sources of renewable energy for electricity and other needs. Read more here (subscription required).
CYBERSECURITY & DATA PRIVACY
Request for Information on Cyber Regulatory Harmonization; Request for Information: Opportunities for and Obstacles to Harmonizing Cybersecurity Regulations, Office of the National Cyber Director (ONCD), Executive Office of the President
ONCD invites public comments on opportunities for and obstacles to harmonizing cybersecurity regulations. ONCD seeks input from stakeholders to understand existing challenges with regulatory overlap and explore a framework for reciprocity (the recognition or acceptance by one regulatory agency of another agency’s assessment, determination, finding, or conclusion with respect to the extent of a regulated entity’s compliance with certain cybersecurity requirements) in regulator acceptance of other regulators’ recognition of compliance with baseline requirements. The request for information is available here. Comments are due October 31, 2023.
Small Business Administration (SBA) Announces New Cybersecurity Grant Recipients for 2023
SBA Administrator Isabella Casillas Guzman announced six new recipients and $6 Million in total funding for the SBA’s Cybersecurity for Small Business Pilot Program. All six grantees are state entities that will assist small businesses in advancing cybersecurity infrastructure and mitigating cyber threats. Read more here.
Personnel Vetting: Department of Defense (DOD) Needs a Reliable Schedule and Cost Estimate for the National Background Investigation Services (NBIS) Program
The Government Accountability Office published a report on U.S. government personnel vetting processes, such as background investigations, that rely on information technology systems to process and validate data on millions of federal employees and contractor personnel. In 2016, DOD assumed responsibility for developing new systems following a 2015 cybersecurity incident that compromised data from Office of Personnel Management systems. DOD is developing the NBIS system to replace those legacy systems. More information is available here. The full report is available here.
The White House is Developing a 10-Year Modernization Plan to Replace Legacy IT, Government Executive
The National Cybersecurity Strategy tasks the Office of Management and Budget (OMB) with creating a plan to eliminate all vulnerable legacy systems from federal agencies within a decade. The White House is working to develop a 10-year modernization plan for federal civilian agencies as part of a broader effort to transition away from outdated information technology systems while bolstering the nation’s cyber posture, a top official said. Read more here.
White House Cyber Office Has Its Eye on Workforce Data, Government Executive
The national cyber workforce and education strategy includes initiatives meant to close a gap between demand for cybersecurity talent and available workers, a push to connect underrepresented communities to cybersecurity jobs and more, but one top priority for the deputy national cyber director for technology and ecosystem security, Camille Stewart Gloster, is data about the cyber workforce itself. Read more here.
A New Investment to Enhance Cyber Strength, Department of Labor (DOL) Blog
DOL’s IT systems protect a treasure trove of data related to America’s workers, including 94.8 Million records of highly sensitive, personally identifiable information. DOL recently received a fourth Technology Modernization Fund (TMF) investment of $15.2 Million dollars to strengthen the security of our IT systems and data, protecting the people who rely on the DOL for critical information and services. Read more here.