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Federal Acquisition Regulation (FAR) Council Final Rule: Establishing FAR Part 40
On April 1, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a Final Rule amending the FAR to add the framework for a new FAR part on information security and supply chain security. The creation of this new FAR part does not implement any of the information security and supply chain security policies or procedures. The amendment only establishes the new FAR part. The published Final Rule is available here and will be effective May 1, 2024. The Introduction is available here. The Small Entity Compliance Guide is available here.
Small Business Administration (SBA) Correction: Ownership and Control and Contractual Assistance Requirement for the 8(a) Business Development Program
On March 28, SBA published a correcting amendment to correct a technical error in the definition of substantial bundling that appeared in the Federal Register on April 27, 2023, a final rule entitled, “Ownership and Control and Contractual Assistance Requirements for the 8(a) Business Development Program.” The definition of substantial bundling, as it relates to Blanket Purchase Agreements (BPAs), improperly limited substantial bundling to BPAs entered against a U.S. General Services Administration (GSA) Schedule Contract. This notice removes that limitation so that the definition of substantial bundling applies to all BPAs and not only BPAs entered against GSA Schedule Contracts. The correction is available here and is effective as of March 28, 2024.
Department of Defense (DOD): Memorandum: Recission of “Treatment of Nontraditional Defense Contractors” Memorandum
On March 26, DOD issued a memorandum, effective immediately, rescinding the memorandum, “Treatment of Nontraditional Defense Contractors,” dated March 21, 2024. The full memorandum is available here.
General Services Administration (GSA) Proposed Rule: GSA Acquisition Regulation (GSAR), System for Award Management (SAM) Representation for Leases
On March 27, GSA published a Proposed Rule amending the GSAR remove the requirement for lease offerors to have an active SAM registration when submitting offers and instead allow offers up until the time of award to obtain an active SAM registration. The Proposed Rule is available here. Comments close May 27, 2024.
Government Accountability Office (GAO) Report:
- Space Acquisitions, Analysis of Two DOD Reports to Congress: This Q&A report discusses two reports that DOD and the Air Force, which oversees the Space Force, released in 2020 and 2022. The reports included proposals to improve space acquisitions—such as establishing acquisition policies specific to developing space-related technologies. Many of the proposals align with GAO’s prior findings and recommendations. The full report is available here.
- Small Business Research Programs, Increased Performance Standards Likely Affect Few Businesses Receiving Multiple Awards: On March 29, GAO released a report finding that most small businesses meet the Congressional requirements increasing the standards for small businesses that receive the highest number of awards, and few small businesses face meaningful consequences if they do not meet the requirements. The full report is available here.
Witnesses Push for Pentagon Acquisition Reforms, MeriTalk
The Department of Defense’s (DOD) legacy acquisition systems are too slow to be competitive and are only incrementally innovative, witnesses said at a Senate hearing last week. Read more here.
Upcoming Government Contracts Presentations
PM WEBINAR: PilieroMazza Annual Review: Lessons from 2023 Contract Claims and Appeals Decisions Affect Approach to 2024 Cases, Lauren Brier, Jonathan “Jon” R. Neri, April 18, 2024. Read more here.
WEBINAR: Small Business Contracting & Subcontracting, Isaias “Cy” Alba, IV, April 19, 2024. Read more here.
CONSTRUCTION / LABOR & EMPLOYMENT
Federal Acquisition Regulation (FAR) Council Notice: Certain FAR Part 22 Labor Requirements
On March 29, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a Notice and request for comments about the implementation of Executive Order (EO) 14063, Use of Project Labor Agreements (PLAs) for Federal Construction Projects, issued February 4, 2022. The EO mandates that Federal Government agencies require the use of PLAs for large-scale Federal construction projects, where the total estimated cost to the Government is $35 million or more, unless an exception applies. Agencies still have the discretion to require PLAs for Federal construction projects that do not meet the $35 million threshold. The information that offerors and contractors must submit to comply with FAR part 22 are the following: FAR 52.222-2, Payment for Overtime Premiums; FAR 52.222-6, Construction Wage Rate Requirements and the Standard Form (SF) 1444; FAR 52.222-11, Subcontracts (Labor Standards) and SF 1413; FAR 52.222-18, Certification Regarding Knowledge of Child Labor for Listed End Products; FAR 52.222-33, Notice of Requirement for PLA; FAR 52.222-34, PLA; and FAR 52.222-46, Evaluation of Compensation for Professional Employees. The Notice is available here. Comments close April 29, 2024.
Governor Directs Pa. to Use More Project Labor Agreements, Law360
Pennsylvania Gov. Josh Shapiro announced Wednesday that he is directing state agencies to consider including project labor agreements — pre-hiring collective bargaining agreements that can cover multiple contractors and labor unions — in all major capital projects. Read more here (subscription required). The Directive is available here.
Construction Group Sues Over Federal Project Labor Pact Rule, Bloomberg Law
A construction industry group is asking a Florida federal court to toss a General Services Administration rule requiring contractors to enter into a project labor agreement on federal construction projects valued at over $35 million. Plaintiffs say the rule would drive up cost of federal projects. Read more here (subscription required).
Construction Orgs Call Prevailing Wage Rule Unconstitutional, Law360
Several construction groups said the U.S. Department of Labor is illegally trying to expand the reach of the Davis-Bacon Act with its final rule regulating prevailing wages, urging a Texas federal court to bring the rule to a screeching halt. Read more here (subscription required). The Motion is available here.
House Conservatives Recycle Federal Worker Pay and Benefit Cuts in Budget Document, Government Executive
The Republican Study Committee’s fiscal 2025 budget plan would drastically cut federal workers’ retirement and health care benefits and end across-the-board annual pay hikes. Read more here.
States Say Prez Doesn’t Have Power to Hike Contractor Pay, Law360
Four states told the Ninth Circuit that the Biden administration’s implementation of a $15-per-hour minimum wage for federal contractors was unlawful, arguing that the government misinterpreted a statement of statutory purpose as a mandate for broad regulatory authority. Read more here (subscription required). The Brief is available here.
Upcoming Labor & Employment Presentations
PM WEBINAR: New Wave of Pay Transparency Requirements Affects Employers and Federal Contractors, Sarah L. Nash, Sara N. Strosser, April 4, 2024. Read more here.
WEBINAR: From Compliance to Competitiveness: Revamped DBA Rule Reshapes Labor Landscape for Construction Contractors, Nichole D. Atallah, Sarah L. Nash, April 5, 2024. Reach more here.
CONFERENCE: Pricing it Right – Current Impacts on Cost and Pricing Strategies, Nichole D. Atallah, April 18, 2024. Read more here.
Office of Management and Budget (OMB):
- Notice: Responsible Procurement of Artificial Intelligence (AI) in Government: On March 29, OMB published a notice and request for information about the responsible procurement of AI. OMB asks for information about strengthening the AI marketplace and managing the performance and risks of AI. Commenters are also invited to provide feedback on any topic believed to have implications for the procurement of AI by Federal agencies. The Notice is available here. Comments close April 29, 2024.
- Memorandum: Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence (AI): On March 28, OMB issued a memorandum to direct agencies to advance AI governance and innovation while managing risks from the use of AI in the Federal Government, particularly those affecting the rights and safety of the public. New agency requirements include strengthening AI governance, advancing responsible AI innovation, and managing risks from the use of AI. The full Memorandum is available here.
Department of Homeland Security (DHS) Proposed Rule: Cyber Incident Reporting for Critical Infrastructure Act (CIRCIA)
On April 4, DHS published a Proposed Rule implementing the statute’s covered cyber incident and ransom payment reporting requirements for covered entities. CISA seeks comment on the proposed rule to implement CIRCIA’s requirements and on several practical and policy issues related to the implementation of these new reporting requirements. The Proposed Rule is available here. Comments close June 3, 2024.
Federal Trade Commission (FTC) Press Release: FTC Releases 2023 Privacy and Data Security Update
The FTC released its Privacy and Data Security Update for 2023 that highlights the FTC’s work to protect consumer privacy and respond to the evolving ways that companies use consumer data such as in the development of artificial intelligence models and misuse of health data. The update details agency actions related to AI, health privacy, and other key areas. Read more here.
The Pentagon Wants to Help Boost Cybersecurity for Small Contractors, Defense One
A new strategy outlines how the Defense Department plans to increase security and strengthen relationships across the industrial base. Read more here.
Calif. Releases Interim Guidelines On GenAI Use, Law360
The state of California on Thursday released interim guidelines for public-sector procurement, uses and training of generative artificial intelligence by state leaders in preparation for all state agencies to consider pilot projects using the technology by July, per Gov. Gavin Newsom’s executive order issued last year. Read more here (subscription required). The Memorandum is available here.
Upcoming Cybersecurity & Data Privacy Presentations
WEBINAR: What’s the Latest on CMMC, Nichole D. Atallah, Daniel Figuenick, III, April 8, 2024. Read more here.