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Upcoming Events: Register to attend PilieroMazza’s upcoming events here. Recent Thought Leadership: Check out PilieroMazza’s recent client alerts and blogs here. Podcasts: Listen to PilieroMazza’s podcasts GovCon Live! here and Clocking in with PilieroMazza here. |
FTC Non-Compete Ban Attacked by Businesses: What You Need to Know about the Ban, PilieroMazza Client Alert, Nichole D. Atallah, Sarah L. Nash
On April 23, 2024, the Federal Trade Commission (FTC) announced a final rule banning employers from enforcing non-compete agreements against any non-executive employee (“Non-Compete Clause Rule”). As suspected, business groups, including the U.S. Chamber of Commerce, worked quickly to file a complaint in the U.S. District Court for the Eastern District of Texas arguing that the FTC lacks the authority to promulgate rules that define unfair competition, violating the Administrative Procedures Act, and is limited to challenging anti-competitive practices. As we await the Court’s input and determination on issuing injunctive relief to stop implementation of the rule, here is what businesses need to know about the Non-Compete Clause Rule. Read more here.
Clocking in with PilieroMazza: The Labor Equation: Pricing for Success, PilieroMazza Podcast, Nichole D. Atallah, Sarah L. Nash. Click here to access the podcast.
Department of Labor (DOL) Final Rule: Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees
On April 26, DOL published a Final Rule updating and revising the regulations under the Fair Labor Standards Act (FLSA) implementing the exemptions from minimum wage and overtime pay requirements for executive, administrative, professional, outside sales, and computer employees. Significant revisions include increasing the standard salary level, increasing the highly compensated employee total annual compensation threshold, and adding to the regulations a mechanism that will allow for the timely and efficient updating of the salary and compensation thresholds, including an initial update on July 1, 2024, to reflect earnings growth. The Final Rule is available here and will be effective July 1, 2024. Sections 541.601(a)(2) and 541.601(a)(2) will be effective January 1, 2025.
Maryland Governor Signs Bill on Salary Transparency in Job Ads, Bloomberg Law
Maryland will require businesses to include a pay range in job postings under legislation that Gov. Wes Moore (D) signed into law. Read more here (subscription required).
Upcoming Labor & Employment Presentations
TRAINING: Labor Rules & Regulations: Federal Market Compliance, Nichole D. Atallah, May 15, 2024. Read more here.
WEBINAR: From Compliance to Competitiveness: Revamped DBA Rule Reshapes Labor Landscape for Construction Contractors, Nichole D. Atallah, Sarah L. Nash, May 15, 2024. Read more here.
NATIVE AMERICAN LAW & TRIBAL ADVOCACY
General Services Administration (GSA) Press Release: GSA and U.S. Department of Energy (DOE) Announce Procurement Opportunity for Tribal Businesses to Help Advance Clean Energy Goals
GSA, DOE, and the White House Council on Native American Affairs seeks to purchase Energy Attribute Certificates (EACs) from a Tribal majority-owned business organization using the Indian Energy Purchase Preference (IEPP). The solicitation will lead to the first ever procurement under the IEPP in support of Biden’s Federal Sustainability Plan goal of powering all federal operations with carbon-free electricity by 2030 and the Biden-Harris Administration’s commitment to Tribal nations. Read more here.
Feds Botched Building Contract Prices, Watchdog Reports, Law360
Federal building overseers in the Southeast U.S. used distorted pricing for medium-term construction contracts that produced significantly inflated and unreasonably low-cost estimates, according to a government watchdog. Read more here (subscription required).
DOL Contractor Watchdog Expands Construction Compliance Program, Bloomberg Law
The Labor Department’s Office of Federal Contract Compliance Programs is designating 16 new federally funded construction projects through an initiative created to promote equal opportunity in industry jobs. Read more here (subscription required).
Upcoming Construction Presentations
PM WEBINAR: Preparing for Major Changes to DOT’s Disadvantaged Business Enterprise (DBE) Program Effective May 9, 2024, Jacqueline K. Unger, Peter B. Ford, May 8, 2024. Read more here.
Terms and Conditions vs. Contract Clauses: Which Language Applies to Government Contract Disputes?, PilieroMazza Blog, Lauren Brier, Isaias “Cy” Alba, IV, Dozier L. Gardner, Jr.
Determining which language applies to a contract dispute is critical to any contractor seeking to recover costs through the claims and appeals process. Recently, through a series of appeals before the Civilian Board of Contract Appeals (CBCA) and the Court of Appeals for the Federal Circuit (Federal Circuit), both forums offered more fulsome guidance on when a contractor’s terms and conditions will apply to a contract despite potentially conflicting with standard federal contract provisions. PilieroMazza summarizes relevant cases and offers key takeaways from these decisions to help contractors avoid or prevail in contract disputes. Read more here.
PilieroMazza Annual Review: Lessons from 2023 Contract Claims and Appeals Decisions Affect Approach to 2024 Cases, PilieroMazza Webinar Replay, Lauren Brier, Jonathan “Jon” R. Neri. Click here to access the webinar replay.
H.R.7888, Reforming Intelligence and Security America Act, Enacted
On April 20, H.R.7888 was presented to the President and became law. This law reauthorizes Title VII of the Foreign Intelligence Surveillance Act (FISA) for five years and makes changes to FISA, including certain restrictions on surveillance under Section 702. Section 702 concerns electronic surveillance of non-U.S. persons believed to be outside the United States to obtain foreign intelligence information. Information about U.S. persons may incidentally be acquired by this type of surveillance and subsequently searched or “queried” under certain circumstances. Read more here.
Department of Defense (DOD) Final Rule: Defense Federal Acquisition Regulation Supplement (DFARS), Use of Fixed-Price Contracts for Certain Major Defense Acquisition Programs
On April 25, DOD published a Final Rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2023 that limits the number of low-rate initial production lots associated with a major defense acquisition program under certain circumstances. The Final Rule is available here and is effective as of April 25, 2025.
Department of Defense (DOD) Final Rule: Defense Federal Acquisition Regulation Supplement (DFARS), Use of Fixed-Price Contracts for Certain Major Defense Acquisition Programs
On April 25, DOD published a Final Rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2023 that limits the number of low-rate initial production lots associated with a major defense acquisition program under certain circumstances. The Final Rule is available here and is effective as of April 25, 2024.
Department of State: United States Government National Action Plan on Responsible Business Conduct
This National Action Plan is intended to address responsible business conduct and promote sustainable procurement, climate change, anti-corruption, and human rights in federal contracting, and the government’s plan to update federal procurement policy regarding the same. The action plan sets expectations for contractors to be proactive in their due diligence for human rights and directs the FAR Council to update regulations regarding the same. The full action plan is available here.
Government Accountability Office (GAO) Report: Single Audits: Improving Federal Audit Clearinghouse Information and Usability Could Strengthen Federal Award Oversight
On April 22, GAO released a report about its review of the Federal Audit Clearinghouse maintained by the General Services Administration (GSA). GAO found issues with the quality and completeness of the data in this clearinghouse. For example, the clearinghouse cannot identify recipients that are required to submit a single audit but did not. GAO recommended GSA address this issue. Read more here.
General Services Administration (GSA) Press Release: GSA Launches Open Government Federal Advisory Committee to Advise on Governmentwide Transparency Efforts
On April 26, GSA announced plans to create a new Open Government Federal Advisory Committee (OG FAC). Supported by the Open Government Secretariat Program Management Office – established in 2023 – the OG FAC will advise GSA on open government initiatives including GSA’s creation, implementation, and monitoring of U.S. Open Government National Action Plans and related commitments. Read more here.
GSA’s New Approach to Small Business Matchmaking, Federal News Network
GSA’s Alliant 3 contract includes an evaluation factor to encourage large businesses to meet with small firms in one of 11 emerging technology areas. Read more here.
Upcoming Government Contracts Presentations
WEBINAR: Nuts, Bolts, and Beyond: To Be a Government Contractor, Isaias “Cy” Alba, IV, May 2, 2024. Read more here.
WEBINAR: Cohort 9 Briefing, Isaias “Cy” Alba, IV, May 3, 2024. Read more here.
TRAINING: Legal Considerations: How Best to Structure Your Company as a Federal Contractor, Isaias “Cy” Alba, IV, May 14, 2024. Read more here.
CISA Unveils Final Self-Attestation Form for Software Producers Bidding on Federal Contracts, PilieroMazza Blog, Isaias “Cy” Alba, IV, Daniel Figuenick, III
In March 2024, Cybersecurity and Infrastructure Security Agency (CISA) released the final version of its secure software development self-attestation common form (Form), requiring federal government contractors who produce and provide software verify that it complies with government-specified, minimum secure software development practices. Nearly one year ago, CISA published a draft version of the Form requesting public comment. PilieroMazza discussed some of the key requirements and implications of the draft form here. Contractors who sell software to the government or produce software that is eventually sold to the government should understand how to complete the Form to ensure they meet potential contract award requirements. Read more here.
GAO Urges Federal Agencies to Complete IT Security Requirements Implementation, ExecutiveGov
The Government Accountability Office recommended the government complete the implementation of the leadership and oversight requirements outlined in a 2021 executive order protecting federal information technology systems from cyberattacks. Read more here.