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LABOR & EMPLOYMENT
COVID-19 Vaccination and Testing: Critical Implications of OSHA’s ETS for Federal Government Contractors, November 5, 2021, Nichole Atallah, Sarah Nash, Sara Nasseri, and Matt Stokes
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) published its long-awaited COVID-19 Vaccination and Testing Emergency Temporary Standards (ETS) for covered private employers, including nearly all private employers with 100 or more employees. The ETS is available here. The ETS sets forth workplace safety protocols mandating covered employers to implement workplace policies by January 4, 2022, requiring employees present in the workplace to be vaccinated or tested regularly. PilieroMazza’s Labor & Employment Group addresses the critical implications of the ETS for federal contractors. Read more here.
Federal Contractor COVID-19 Vaccine Deadline Pushed Back to January
Government Executive reported that the deadline for the vaccine mandate for federal contractors will be pushed back about a month to January 4, 2022. Read more here. A related White House fact sheet on the extension is available here.
Medicare and Medicaid Programs: Omnibus COVID-19 Health Care Staff Vaccination
The Department of Health and Human Services published an interim final rule with a comment period. It revises the requirements most Medicare- and Medicaid-certified providers and suppliers must meet to participate in the Medicare and Medicaid programs. Specifically, the revisions establish COVID-19 vaccination requirements for staff at the included Medicare- and Medicaid-certified providers and suppliers. The rule is effective on November 5, 2021. Read more here.
Employees and Contractors Receive More Details on Federal Vaccine Mandate
Federal News Network reported that, according to newly updated FAQs from the Safer Federal Workforce Task Force, federal agencies should provide administrative leave for their employees to receive a COVID-19 booster vaccine. According to Federal News Network, additional updates offered up more details on how to handle employee requests for a religious exception to the vaccine mandate. Read more here.
VA FSS Implements COVID-19 FAR Clause
The Department of Veterans Affairs (VA) Federal Supply Schedules (FSS) program posted a notice on their plan to implement Federal Acquisition Regulation 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, within VA Schedule contracts. According to the VA, affected contractors should have received contract modification instructions during the week of October 25, 2021, and signed modifications are due November 14. The notice explains that the clause will be added only to 621 I Professional and Allied Healthcare Staffing Services and 621 II Medical Laboratory Testing and Analysis Services schedules and contracts and that inclusion of the clause is not being implemented under any other VA FSS Schedules or contracts at this time. Read more here.
DOD: Force Health Protection Guidance Supplement 23 Revision 2 – Vaccine Attestation, Screening, Testing, and Vaccination Verification
The Department of Defense released a revision to its force health protection guidance for COVID-19 vaccination attestation, screening, testing, and verification. This second revision rescinds and replaces the first revision while retaining that revision’s vaccination attestation, screening, testing, and verification guidance; provides additional information on the DOD civilian employee vaccination exemption process; and includes DOD forms for medical and religious exemptions that components may use to process DOD civilian employee vaccination exemption requests. Read more here. A related DOD press release is available here, and DOD’s webpage with its most up-to-date COVID-19 guidance is available here.
DOD: Guidance for Reporting the Use of DFARS Clause 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, and Other Transactions Clause, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors to FPDS
The Department of Defense (DOD) published a memorandum that gives guidance to contracting officers as they submit contract action reports to the Federal Procurement Data System regarding incorporation of Defense Federal Acquisition Regulation Supplement Clause 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, and Other Transactions Clause, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, in DOD contracts. Read more here.
Nineteen States Sue Biden Administration Over COVID Vaccine Rule
Federal News Network reported that a total of nineteen states have filed lawsuits to stop President Biden’s COVID-19 vaccine mandate for federal contractors. Read more here.
Final Rule Sets Limits on Amount of Non-Tipped Work Tipped Employees Can Do when Tip Credit Is Applied
The Department of Labor published a press release to announce a final rule that sets limits on the amount of time tipped employees can spend in non-tipped activities when the employer receives a tip credit. The rule clarifies that an employer may only take a tip credit for the hours when an employee is doing work that is tip-producing or engaged in tasks that directly support tip-producing work. The final rule becomes effective December 28, 2021. Read more here. The final rule is available here.
EEOC Launches Initiative on Artificial Intelligence and Algorithmic Fairness
The Equal Employment Opportunity Commission (EEOC) published a press release to announce that it is launching an initiative to ensure that artificial intelligence and emerging tools used in hiring and other employment decisions comply with the federal civil rights laws that EEOC enforces. Read more here.
DOL Initiates Rulemaking to Protect Workers from Heat Hazards Due to Rising Temperatures
The Department of Labor (DOL) published a press release to explain that, in concert with a Biden Administration interagency effort and DOL’s commitment to workplace safety, climate resilience, and environmental justice, it is publishing an advance notice of proposed rulemaking for heat injury and illness prevention in outdoor and indoor work settings. Comments on the notice are due December 27, 2021. Read more here. The advance notice of proposed rulemaking is available here.
Upcoming Labor & Employment Presentations
WEBINAR: An Update on Workplace Policy, November 18, 2021, Sara Nasseri. Read more here.
EVENT: Nuts and Bolts of the SCA, November 18, 2021, Nichole Atallah. Read more here.
GOVERNMENT CONTRACTS
PilieroMazza Submits Comments on Barriers Facing Small Businesses Contracting with DOD, October 27, 2021, Meghan Leemon and Sam Finnerty
On October 25, 2021, PilieroMazza―a business law firm serving clients in the government contract and commercial business sectors―submitted comments on barriers facing small businesses contracting with the Department of Defense. This submission embodies PilieroMazza’s continued commitment to small businesses operating across the government contracting arena. Read more here. View our full submission here.
5 Things Every Contractor Should Know About the Contract Disputes Act, October 26, 2021, Kevin Barnett and Lauren Brier
The well-worn adage that “you can’t fight City Hall” does not apply to federal government contractors. The Contract Disputes Act (CDA) provides the statutory framework governing contract disputes between contractors and the government. Although it is embodied in every government contract, its seemingly endless nuance and nearly 50 years of case law interpretation, can leave even the most experienced contractor confused at times. To prevent further confusion around the CDA, attorneys from PilieroMazza’s Government Contract Claims & Appeals Group offer five simple tips every government contractor should know about the CDA. Read more here.
Biden Signs Highway Funding Extension
The Hill reported that President Biden signed a short-term extension for highway funding on October 31, 2021. The Department of Transportation’s surface transportation programs will now be funded through December 3, 2021. Read more here.
Biden Administration Officials Outline Steps to Tackle Urgent Cyber Threats
The Hill reported that top Biden Administration officials outlined steps taken to confront the increase in cyber threats against the nation, including strengthening key critical infrastructure groups. National Cyber Director Chris Inglis detailed these steps in both a strategic intent document issued by the White House and an op-ed in The Wall Street Journal, prioritizing issues, including enhancing federal cybersecurity efforts, improving public-private coordination, and shoring up resources and resilience to face cyber threats. Read more here.
Senate Approves Bill to Protect Telecommunications Infrastructure from Foreign Threats
The Hill reported that the Senate unanimously passed legislation to take steps to further reduce the use of telecommunications products from companies deemed to be a national security threat. The Secure Equipment Act would prohibit the Federal Communications Commission (FCC) from considering or issuing authorization of products from companies on the FCC’s “covered list.” The bill now heads to President Biden’s desk for his signature. Read more here.
Joint Cybersecurity Alerts for Critical Infrastructure
The Cybersecurity & Infrastructure Security Agency, Federal Bureau of Investigation, and National Security Agency recently issued two alerts to critical infrastructure entities—one covering BlackMatter ransomware and the second specifically addressed to U.S. water and wastewater systems.
- BlackMatter Ransomware Alert: This alert provides information to critical infrastructure entities on BlackMatter ransomware. According to the alert, BlackMatter ransomware has been targeting critical infrastructure entities since July of 2021. Read more here.
- U.S. Water and Wastewater Systems Alert: This alert provides information for U.S. Water and Wastewater Systems “to highlight ongoing malicious cyber-activity—by both known and unknown actors—targeting the information technology (IT) and operational technology (OT) networks, systems and devices of U.S. Water and Wastewater Systems (WWS) Sector facilities.” According to the alert, “This activity—which includes attempts to compromise system integrity via unauthorized access—threatens the ability of WWS facilities to provide clean, potable water to, and effectively manage the wastewater of, their communities.” Read more here.
Comparison of Select Cyber Incident Reporting Bills
The Congressional Research Service published an updated copy of its report comparing select bills that address cyber incident reporting from the first session of the 117th Congress. Specifically, the report covers:
- H.R. 5440, the Cyber Incident Reporting for Critical Infrastructure Act of 2021 (as introduced);
- S. 2407, the Cyber Incident Notification Act of 2021 (as introduced);
- S. 2875, the Cyber Incident Reporting Act of 2021 (as introduced); and
- S. 2943, the Ransom Disclosure Act (as introduced).
The report provides a table with a side-by-side comparison of the bills across common traits related to cyber incident reporting. Read more here.
DOD Revamps CMMC Program
Federal Computer Week reported that the Department of Defense (DOD) is revamping its cybersecurity compliance program for government contractors after a nine-month internal review and after receiving complaints from vendors large and small over the cost and complexity of the requirements. A related DOD press release is available here.
NIST Releases Draft Consumer Software Labeling Framework
The National Institute of Standards and Technology (NIST) has drafted a set of cybersecurity criteria for consumer software, which it hopes will aid in the development of voluntary labels that indicate to the public whether consumer software meets a certain baseline level of cybersecurity. On November 1, NIST posted a draft document that outlines the new assessment criteria. The framework may require manufacturers to address multiple aspects of the production process such as secure development and data protection. Comments on the draft document are due by December 16, 2021, and a final version will be published no later than February 6, 2022. Read more here.
Small Business Size Standards: Calculation of Number of Employees for All Programs and of Average Annual Receipts in the Business Loan, Disaster Loan, and SBIC Programs
The Small Business Administration (SBA) published a proposed rule that would use a 24-month average to calculate a business concern’s number of employees for eligibility purposes in all of SBA’s programs. The proposed rule would also permit business concerns in SBA’s Business Loan, Disaster Loan, and Small Business Investment Company Programs to use a five-year averaging period, in addition to the existing three-year averaging period for the purposes of calculating annual average receipts. Comments are due December 2, 2021. Read more here.
DFARS: Contract Authority for Development and Demonstration of Prototypes
The Department of Defense published a proposed rule that would amend the Defense Federal Acquisition Regulation Supplement to update the types of line items and contract options that may be included, subject to limitations, in certain contracts initially awarded pursuant to competitive solicitations. Comments are due December 28, 2021. Read more here.
Buy Indian Act: Procedures for Contracting
The Department of the Interior (DOI) published a proposed rule that would revise regulations implementing the Buy Indian Act. Specifically, the proposed rule would provide DOI with authority to set aside procurement contracts for Indian-owned and controlled businesses. Comments are due December 27, 2021. Read more here.
DHS Directive Requires Agencies to Address Cyber Vulnerabilities
On November 3, the Department of Homeland Security released Binding Operational Directive 22-01, which is meant to protect the federal government against cyberattacks. The directive requires federal agencies to address vulnerabilities in the federal system, including software and hardware. Read more here.
Lawmakers Push to Extend Deadline for Alaska Native Corporations to Spend COVID-19 Relief Funds
Government Executive reported that legislation recently passed in the Senate that seeks to extend the deadline for tribal groups that represent Native Alaskans to spend COVID-19 relief funds, which were only made available to the tribal groups this summer. Read more here.
Defense Agency’s Contracting Strategies Offer Tailored, Flexible Solutions
The Department of Defense (DOD) published a press release to explain that acquisition professionals at the Defense Logistics Agency are turning to captains of industry / supplier capabilities contracts to offer tailored solutions for customers who need weapons system parts and engineering and support services. The flexible acquisition structure provides overarching terms and conditions that can be adjusted to fit individual requirements and can accommodate performance-based logistics, supplier-initiated ordering, direct-delivery, and other acquisition models. DOD expects to award the new contract in 2023. Read more here.
DISA Launches Clean Sheet Budget Review to Help Advance New Strategic Priorities
Federal News Network reported that the Defense Information Systems Agency (DISA) is scrubbing its budget and program plans over the next year to make sure it is making the right investments as flat defense budgets loom on the horizon. The “Strategic Program Assessment” is intended to make sure every dollar DISA spends is in line with its priorities. DISA just released a two-year strategic plan detailing key lines of effort, including prioritization of command-and-control capabilities to support the Department of Defense’s broader Joint All Domain Command and Control effort. Read more here.
SBA Announces $44.8 Billion in Funding Awarded to Small Businesses Through Signature Lending Programs
The Small Business Administration (SBA) published a press release that announces that SBA reached $44.8 billion in funding to small businesses through more than 61,000 traditional loans in Fiscal Year 2021. Read more here.
Fact Sheet: President Biden Renews U.S. Leadership on World Stage at U.N. Climate Conference
The White House published a fact sheet on the actions President Biden announced as part of an effort to tackle climate change, tap economic opportunity, and tout the ambitions of collective global efforts. It lays out the Biden Administration’s long-term goals and details actions that will be taken to meet them, including:
- The launch of the President’s Emergency Plan for Adaptation and Resilience (PREPARE), a whole-of-government initiative that will serve as the cornerstone of the U.S. government response to addressing the increasing impacts of the global climate crisis in order to enhance global stability.
- The release of the U.S. Long-Term Strategy, which shows how action in this decade can set the U.S. on track for greenhouse gas reductions through the 2030s and 2040s via federal, state, local, and Tribal government leadership, in coordination with all-of-society action.
Read more here.
State Department Prepares Potential $8B IT Services Acquisition
FedScoop reported that the Department of State is developing a suite of multiple-award contracts to modernize its end-to-end IT service delivery, which could be worth up to $8 billion. The draft request for proposals for the EVOLVE contract was issued on October 21, 2021. Read more here.
Federal Data Strategy 2021 Action Plan Sets Cross-Agency Goals on AI, Upskilling Workforce
Federal News Network reported that the Federal Data Strategy development team, led by the Office of Management and Budget, released its Federal Data Strategy 2021 Action Plan, which asks agencies to determine how much foundational work remains before they can shift into the next phase of the Federal Data Strategy—enterprise-wide data standards and coordination of data. The Biden Administration expects agencies to start addressing those enterprise-wide goals starting in 2023. Read more here.
FAQ and Guidance for USAID Afghanistan Implementing Partners
The United States Agency for International Development (USAID) published two documents to provide information for USAID Afghanistan Implementing Partners.
- USAID Afghanistan Implementing Partners FAQ: This FAQ addresses a number of questions from Afghanistan Implementing Partners. Read more here.
- Extension of Authorities Letter to USAID Afghanistan Implementing Partners: This guidance for USAID Afghanistan Implementing Partners extends authorizations for USAID / Afghanistan acquisition and assistance awards until November 22, 2021. Read more here.
Federal Acquisition Circular 2022-01
Three final Federal Acquisition Regulation (FAR) rules were agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council and published in Federal Acquisition Circular 2022-01. They were accompanied by a summary presentation of final rules and a small entity compliance guide.
- Revision of Definition of “Commercial Item”
This final rule amends the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2019 to change the definition of “commercial item.” The rule is effective December 6, 2021. Read more here. - Consolidation and Substantial Bundling
This final rule amends the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that requires providing public notices of determinations for substantial bundling and consolidation of contract requirements. The rule is effective December 6, 2021. Read more here. - Maximum Award Price for Certain Sole Source Manufacturing Contracts
This final rule amends the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2021 that modified the Small Business Act maximum award price for manufacturing contracts to $7 million. The rule is effective December 6, 2021. Read more here.
DOE: Class Deviation to Implement the Office of Inspector General’s New Audit Strategy for Management and Operating Contracts
The Department of Energy (DOE) published a class deviation to implement the DOE Office of Inspector General’s new audit strategy for management and operating contracts. The class deviation, among other things, replaces management and operating contractors’ obligation to submit a “Statement of Costs Incurred and Claimed” with an obligation to submit a “final indirect cost rate proposal.” Read more here.
GSA Discusses Managing Contractor GHG Emissions to be Competitive
In a recent General Services Administration (GSA) blog post, Assistant Commissioner of the Office of Policy and Compliance, Mark Lee, addressed how organizations can track and reduce their greenhouse gas (GHG) emissions. GSA is highlighting this information for contractors in preparation for potential GHG requirements as a result of Executive Order 14030, which directs the Federal Acquisition Regulatory Council to amend the Federal Acquisition Regulation to require major federal suppliers to disclose their GHG emissions; set GHG reduction targets; consider the social cost of GHG emissions; and where feasible, give preference to bids from suppliers with a lower social cost of GHG emissions. Read more here.
GSA: Pilot to Use Cash Incentives and Enhanced Allowances in Lease Acquisitions
The General Services Administration published an acquisition letter to establish a pilot program for the use of cash incentives and enhanced allowances in lease acquisitions. Read more here.
GSA: Promoting Innovation in Sustainability Through Contracts
The General Services Administration published an acquisition letter to call for innovation in the area of climate action, further enhancing a General Services Administration Acquisition Manual policy change that adds the Chief Sustainability Office to major acquisition review boards, identifies sustainable acquisition considerations for procurement strategies, and requires greater detail on sustainability in acquisition plans. The letter also provides guidance on existing flexibilities within acquisition to support better environmental outcomes and offers a new approach to thinking about climate-related factors in acquisition. Read more here.
GSA Kicks Off Government-Wide Cyber Supply Chain Risk Management Acquisition Community of Practice
The General Services Administration (GSA) published a blog post that covers GSA’s government-wide kickoff of the Cyber Supply Chain Risk Management (C-SCRM) Acquisition Community of Practice (ACoP). The C-SCRM ACoP is an evolutionary extension of the C-SCRM Cybersecurity Standards Innovation Group. Its shared goals and objectives are to broaden the level of awareness and develop agency maturity in the areas of acquisitions, information communication technology and services, supply chain risk management, and cybersecurity across the federal government.
What’s Coming Soon in SAM.gov
The General Services Administration (GSA) published a blog post on upcoming updates to SAM.gov. It covers changes to CAGE Code requirements for some entities and a forthcoming medical category. Read more here. Recent GSA blog posts with information on SAM.gov updates can be found here, here, and here.
FedRAMP Releases Updated Marketplace Designations Document for CSPs
FedRAMP published a blog post to announce that it updated its Marketplace Designations for Cloud Service Providers guidance document to clarify requirements for achieving a FedRAMP Marketplace designation. The guidance document defines each of FedRAMP’s Marketplace designations and lists the criteria a Cloud Service Offering must meet to achieve and maintain each designation. Read more here.
Upcoming Government Contracts Presentations
EVENT: Size Standards, Federal Business Survival or Not? November 19, 2021, Tony Franco. Read more here.
LITIGATION & DISPUTE RESOLUTION
DOJ Says It Will Protect Whistleblowers Who Disclose Contractor Cybersecurity Failures
FedScoop reported that, according to Deputy Attorney General Lisa Monaco, the Department of Justice (DOJ) will use all available resources to ensure whistleblowers that come forward to report cybersecurity failures at federal contractor businesses are protected. Monaco gave the commitment, along with further details about DOJ’s program to pursue federal contractors that commit major cybersecurity failures or misrepresent cybersecurity capabilities, at the Criminal Division’s recent Cybersecurity Roundtable on “The Evolving Cyber Threat Landscape.” Read more here. Read Deputy Attorney General Monaco’s full remarks here.
Senate Judiciary Committee Passes FCA Amendments
Whistleblower Network News reported that the Senate Judiciary Committee voted to advance a bipartisan False Claims Act amendments bill to the floor of the U.S. Senate. The bill would make amendments related to materiality under the False Claims Act. Read more here.
CEO of Major Defense Contractor Charged with Bribery
The Department of Justice reported that the CEO of Multinational Logistics Services, a large ship-husbanding company that has received over $1 billion in U.S. Navy contracts since 2010, appeared to face a criminal charge for his alleged participation in a bribery scheme. Read more here.
Upcoming Litigation & Dispute Resolution Presentations
WEBINAR: FLSA and Wage-and-Hour Issues for Restaurants, December 7, 2021, Matt Feinberg. Read more here.
WEBINAR: Minimizing Your Legal Risk for Whistleblower Claims Under the False Claims Act, December 16, 2021, Matt Feinberg. Read more here.