Weekly Update for Government Contractors and Commercial Businesses – June 4, 2021

If you have questions concerning the content below, please visit this link.

GOVERNMENT CONTRACTS

DOD Issues Proposed Rule on Enhanced Post-Award Debriefing Rights: 5 Things You Should Know, June 3, 2021, Jackie Unger
As we previously reported, Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA) required the Department of Defense (DOD) to issue new regulations to establish more detailed and comprehensive post-award debriefing rights. In March 2018, DOD issued a class deviation to implement some, but not all, of the rights required by the 2018 NDAA. On May 20, 2021, DOD published a proposed rule that would amend the Defense Federal Acquisition Regulation Supplement to make permanent various changes in the class deviation and to implement the remaining enhanced post-award debriefing rights detailed in the 2018 NDAA. Below are five things government contractors should know about the proposed rule which, if implemented, could significantly affect a contractor’s decision to file a bid protest. Read more here.

SBA Proposes to Increase Small Business Eligibility for Loan Programs Through Size Standard Revisions, May 28, 2021, Sam Finnerty
On May 25, 2021, the Small Business Administration (SBA) issued a proposed rule that would increase size standards for 49 industries in the Wholesale Trade (Sector 42) and Retail Trade (Sectors 44-45) sectors. The North American Industry Classification System (NAICS) codes under these sectors are not used to classify government acquisitions for supplies. Instead, procurements for supplies are classified under a manufacturing or supply NAICS code. Therefore, SBA estimates that this rule would not have any impact on federal contract dollars awarded to small businesses. However, SBA anticipates more than 1,800 firms will become eligible for SBA loans and assistance programs if this rule is adopted. Read more here.

SBA Administrator Issues Statement on the Closure of Paycheck Protection Program
The Small Business Administration (SBA) Administrator Isabella Casillas Guzman issued a statement on the closure of the Paycheck Protection Program to new loan guaranty applications, which has provided over $798 billion in economic relief to small businesses and nonprofits across the nation. Read more here.

SAM.gov and beta.SAM.gov Integration
SAM.gov migrated into beta.SAM.gov on May 24, 2021. For more information on the migration, please access the General Services Administration Interact resources below.

• What’s Changing at SAM Integration with SAM.gov Data?
• What’s Changing at SAM Integration – Service Contract Reporting / BioPreferred?
• What’s Changing at SAM Integration – Non-Federal Role Changes?
• What’s Changing at SAM Integration – Workspace Changes?
• What’s Changing at SAM Integration – Search Changes?
• What’s Changing with the SAM.gov and beta.SAM.gov Integration?

IRS Builds Contract Award Timeframe Forecasting Tool
ExecutiveGov reported that the Internal Revenue Service (IRS) built a predictive, model-based, online application that seeks to provide an answer to the question “when will a contract be signed?” The Projected Contract Award Date app uses an algorithm designed to estimate the number of days before a contract is awarded in the agency’s Integrated Financial System-Procurement for the Public Sector. Read more here.

DOD Has Blind Spots in Its Spending on OTAs
Federal News Network reported that one reason the Department of Defense’s (DOD) use of other transaction agreements (OTA) has become controversial in recent years is the DOD’s widespread use of third-party consortiums to help manage the acquisition process, which, in contrast to more traditional procurements, have fewer aspects of the government’s solicitation and award that are visible to the public. Federal News Network commented that this lack of visibility makes consortium-based OTAs something of a black box to researchers, journalists, and outside watchdogs. Furthermore, the DOD Office of the Inspector General issued a report that suggested that the DOD does not, itself, have a clear understanding of the billions of dollars it spends each year via OTAs and how such funding is spent, allocated, and overseen. Read more here.

U.S. Army Forecasts for Acquisitions, Fiscal Year 2021
The U.S. Army Office of Small Business Programs published its Long-Range Acquisition Fiscal Year 2021 Forecasts, which include forecasts of expected contract opportunities or classes of opportunities and were issued by the U.S. Army Corps of Engineers, U.S. Army Futures Command, U.S. Army Materiel Command, and U.S. Army Medical Research and Development Command. 

SBA Announces New HUBZones to Expand Federal Contracting Opportunities for Small Businesses
Small Business Administration (SBA) Administrator Isabella Casillas Guzman announced the expansion of HUBZone areas in Illinois. The HUBZone program provides small businesses in low-income communities that hire low-income residents opportunities to compete in the federal marketplace, and Illinois received approval from SBA for its Governor-Designated Covered HUBZones, which are the first of their kind. Under the new HUBZone rule, a governor may submit one petition per year requesting that SBA designate certain qualifying areas as Governor-Designated Covered Areas. Read more here.

NITAAC Issues Solicitation for $50B CIO-SP4 IT Support GWAC
On May 25, 2021, the National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC) issued a request for proposals for the Chief Information Officer-Solutions and Partners 4 (CIO-SP4) follow-on contract for general, health care, and biomedical IT services. The five-year CIO-SP4 indefinite-delivery, indefinite-quantity government-wide acquisition contract has a ceiling of $50 billion and a five-year option period. Read more here.

DOD Seeks to Expedite Contract Closeout
The Department of Defense (DOD) published a final rule amending the Defense Federal Acquisition Regulation Supplement to permit expedited contract closeout through a waiver by the contractor and the government of entitlement to any residual dollar amounts that are due to either party at the time of contract closeout. The changes are necessary to establish an expedited contract closeout agreement that will save administrative costs for both the contractor and the government. The rule became effective May 20, 2021. Read more here.

Class Deviation: Revision to Requirement to Use Firm-Fixed-Price Contracts for Foreign Military Sales
The Department of Defense published a class deviation specifying that, effective immediately, contracting officers are not required to use firm-fixed-price contracts for foreign military sales as directed at Defense Federal Acquisition Regulation Supplement (DFARS) 225.7301-1(a). The waiver at DFARS 225.7301-1(b) also is no longer required. The class deviation will remain in effect until it is incorporated in the DFARS or is otherwise rescinded. Read more here.

PF 2021-28 Contractor Use of Human Capital and Training Solutions
The Department of Energy published a memo that details guidelines for contractor use of Human Capital and Training Solutions (HCaTS) ordering procedures and the role of the site contracting officer to ensure orders are made in accordance with the procedures. The General Services Administration’s HCaTS is available for use by contractors whose contracting officer has authorized use of government supply sources pursuant to Federal Acquisition Regulation Part 51, and HCaTS is comprised of three indefinite-delivery  / indefinite-quantity governmentwide contract vehicles: unrestricted, small business, and 8(a). Read more here.

GSA Issued Notice to Proceed to HCaTS 8(a) Pool 2 Contractors
The General Services Administration (GSA) issued a Notice to Proceed for the HCaTS 8(a) Pool 2 contract. In addition to the 18 contracts recently awarded under HCaTS 8(a) Pool 1, 26 contracts are now available for use in HCaTS 8(a) Pool 2. These awards provide the 8(a) community expanded access to the HCaTS Best-in-Class contract program while creating more options for Federal Agencies to meet their 8(a) business development program goals through both competitive 8(a) set-asides and 8(a) direct task order awards. Read more here.

An Update to FedRAMP’s Low, Moderate, and High Baseline SA-4 Controls and IR-3 High Baseline
The Federal Risk and Authorization Management Program (FedRAMP) provides standardized security requirements for the authorization and ongoing cybersecurity of cloud services. Because cloud technology and the security landscape are dynamic and change over time, FedRAMP recently updated the FedRAMP security authorization requirements to keep pace with technology advances and new security threats. The updated guidance is available here. Read more here.

DHS Announces New Cybersecurity Requirements for Critical Pipeline Owners and Operators
The Department of Homeland Security’s (DHS) Transportation Security Administration (TSA) announced a Security Directive, which will require critical pipeline owners and operators to report confirmed and potential cybersecurity incidents to the DHS Cybersecurity and Infrastructure Security Agency (CISA) and to designate a Cybersecurity Coordinator, who will need to be available 24 hours a day, seven days a week. The Security Directive will also require critical pipeline owners and operators to review their current practices as well as to identify any gaps and related remediation measures to address cyber-related risks and report the results to TSA and CISA within 30 days. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Missteps in the Bid Protest Process: War Stories from the Trenches, June 9, 2021, Katherine Burrows and Tim Valley. Read more here.

WEBINAR: Other Transaction Agreements, June 14, 2021, Cy Alba and Anna Wright. Read more here.

WEBINAR: Federal Small Business Programs – A Primer for Government Contractors, June 15, 2021, Peter Ford and Lauren Brier. Read more here.

WEBINAR: Small Business Set-Aside Programs: What You Need to Know, June 22, 2021, Cy Alba and Meghan Leemon. Read more here.

WEBINAR: DFARS Part 227: Patents, Data, and Copyrights, June 23, 2021, Cy Alba and Frank Massaro. Read more here.

WEBINAR: Past Performance: How to Use Yours, Benefit from Others’, and Defend It from Attacks, June 30, 2021, Sam Finnerty. Read more here.

BUSINESS & TRANSACTIONS

Operating Agreement Drafting Considerations: Removal of a Member, May 24, 2021, Michael Thurmond
When establishing a multi-member limited liability company, it is important to plan for the worst. It may seem cynical to think about the end before the beginning, but every company has a half-life. And while relationships at the outset of any venture are typically strong, it often becomes necessary to remove or dissociate a member who is negatively impacting those relationships—or even the business. If no protection is built into the organizational documents, the members’ recourse is limited to circumstances provided under applicable state law. Read more here.

Ratification of Defective Corporate Actions Under the Virginia Stock Corporation Act, May 24, 2021, Frank Massaro
In 2019, the Commonwealth of Virginia adopted a variety of amendments to the Virginia Stock Corporation Act (VSCA). While many of those amendments are already effective, some of the amendments will go into effect on July 1, 2021, including those addressing how a corporation may ratify defective corporation actions. These new provisions provide corporations with vital tools to ensure that actions taken by the corporation, which might otherwise be found to be void or voidable under Virginia law, are valid and have appropriate legal effect. This article will provide an overview of the new ratification provisions under the VSCA and how they apply. Read more here.

Upcoming Business & Transactions Presentations

WEBINAR: Government Contractors: Keys to Make Your Company an Attractive Acquisition Target, June 16, 2021, Cy Alba and Kathryn Hickey. Read more here.

LABOR & EMPLOYMENT

Maryland Virus Workplace Safety, Paid Leave Bill to Become Law
Bloomberg Government reported that Maryland legislation requiring creation of COVID-19 workplace safety rules will become law without the signature of Governor Larry Hogan, but the extent of its impact depends partly on how long the governor’s state of emergency declaration remains in place. The measure, H.B. 581, requires the state’s occupational safety agency to implement an emergency temporary standard in response to the pandemic. The new Maryland law, which takes effect immediately, also requires employers to grant emergency paid leave to “essential employees” during a public health emergency on top of existing paid leave if state or federal funding is available to pay for it, while giving employers discretion to define who’s essential.

Employers Face Compliance Questions Over CDC Mask Guidance
Bloomberg Law reported that employers are caught between conflicting federal guidelines when it comes to COVID-19 and workplace safety guidance. New Centers for Disease Control and Prevention (CDC) guidance says fully-vaccinated workers may remove masks in many situations, but guidance from the Occupational Safety and Health Administration still calls for all workers to wear masks and practice social distancing. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: Nuts and Bolts of the SCA, June 22, 2021, Nichole Atallah. Read more here.