Weekly Update for Government Contractors and Commercial Businesses – November 4, 2020

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LITIGATION & DISPUTE RESOLUTION

BLOG: The Government Contractor Gifting Guide: 4 Tips to Avoid Severe Penalties, October 27, 2020, Camilla Hundley
The holiday season will be here before we know it. Although this year’s celebrations may look different for many of us, one thing will still be on everyone’s mind: gifts. For companies, holiday gifting to clients and colleagues can be a cheerful and effective marketing tool. If your clients or colleagues are government employees, it is important to remember the many rules that govern making gifts to government employees. Keep these rules in mind to prevent a small gift from becoming a big problem. Read more here.

BLOG: False Claims Act Considerations for PPP Loan Forgiveness Applications, October 26, 2020, Matt Feinberg
The Paycheck Protection Program (PPP) created through the Coronavirus Aid, Relief, and Economic Security (CARES) Act offered much-needed financial relief to businesses directly impacted by the COVID-19 pandemic. Through the program, eligible businesses could obtain a loan designed to keep employees on the company payroll, even when company revenues were impacted by stay-at-home and social distancing orders. And, in many cases, PPP loans are eligible for total forgiveness, saving companies from the additional financial burden of paying back an often sizeable loan. Obtaining a PPP loan was not without risk, however, and the representations and certifications required to obtain PPP loan forgiveness could expose companies to liability under the False Claims Act. Read more here.

LABOR & EMPLOYMENT

CLIENT ALERT: Virginia Companies Required to Update Handbooks and Workplace Policies: Pregnancy Discrimination Updates and More, October 26, 2020, Nichole Atallah, Sarah Nash, and Sara Nasseri
Effective October 29, 2020, Virginia employers must update their handbooks to reflect new state requirements regarding pregnancy discrimination, according to a recent law. The law adds posting requirements and is one of several state obligations recently introduced in Virginia. This client alert explains the new requirement and flags additional policy changes that employers need to take to avoid future liabilities. Read more here.

CLIENT ALERT: PilieroMazza’s 889 Compliance Assistance Program, October 26, 2020, Nichole Atallah
The Second Interim Rule implementing Section 889, Part 2 becomes effective October 26, 2020. Section 889 Part B prohibits any executive agency from entering into, extending, or renewing a contract with an entity that uses any equipment, system, or services that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. This second interim rule requires contractors to represent annually in the System for Award Management (SAM) whether they or their employees use any prohibited equipment. Read more here.

White House Plans to Fast-Track Restrictions on Contractor Diversity Training
Federal Computer Week reported that the Federal Acquisition Council is preparing a deviation clause to implement President Trump’s executive order, which impacts diversity and inclusion trainings for federal contractors, because the executive order’s timeline would not permit the Federal Acquisition Council to include a traditional notice and comment period in its rulemaking. According to the article, officials in the White House-based Office of Federal Procurement Policy told contractors and trade association representatives about the planned approach during a conference call on October 22, 2020. 

GOVERNMENT CONTRACTS

BLOG: JEDI Update: 3 Years After Launch, DOD’s Critical Cloud Computing Contract Is Still on Hold, October 26, 2020, Lauren Brier
The acquisition battle between Microsoft and Amazon Web Services over the Department of Defense’s (DOD) Joint Enterprise Defense Infrastructure (JEDI) Cloud contract saw another major development this fall with the announcement that the DOD will again award the JEDI contract to Microsoft following corrective action. This blog provides an update on the JEDI protest, which has potential implications for the government contracting community. Read more here.

CLIENT ALERT: DOD Extends Section 889 Waiver to September 30, 2022, October 23, 2020, Cy Alba
In August, we wrote about a memorandum issued by Director of National Intelligence John Ratcliffe that waived DOD’s requirements under Section 889 of the National Defense Authorization Act (NDAA) for Fiscal Year 2019. The Federal Register published an interim rule on July 14, 2020, that implemented Section 889, which prohibits agencies from procuring telecommunications equipment and services from Huawei Technologies Company, Hangzhou Hikvision Digital Technology Company, Hytera Communications Company, Dahua Technology Company, and ZTE Corporation. The DOD originally released a memorandum on July 23, 2020, to begin implementing Section 889, but Director Ratcliffe’s August memorandum delayed its policy effects. Director Ratcliffe issued another memorandum signed September 29, 2020, that extends the DOD’s waiver through September 30, 2022. Contractors should check their contracts to ensure they meet the requirements for this waiver. Read more here.

SBA Achieves Historic Small Business Lending for Fiscal Year 2020
The Small Business Administration (SBA) announced its Fiscal Year 2020 summary loan data, which outlines the financial assistance provided through SBA’s traditional loan programs as well as aid provided via the CARES Act. Read more here.

16 Months Added to Transition from DUNS to Unique ID
Nextgov reported that the deadline for adopting a new identifier for non-governmental organizations receiving funds from the government has been pushed, giving federal agencies and contractors another 16 months to patch and test their systems. The government is shifting from DUNS numbers to the Unique Entity Identifier. Agencies were originally expected to make the switch by December 2020 but have been given an extension to April 2022. Read more here.

GSA Preparing Switch to eSignature for MAS Offers and Modifications
Nextgov reported that, in one month, contract holders on the General Services Administration’s (GSA) Multiple Award Schedule (MAS) will be able to sign offers and contract modifications digitally using DocuSign. Read more here.

Evaluating SBA’s Initial Disaster Assistance Response to the COVID-19 Pandemic
The SBA Office of Inspector General released a report detailing the results of its inspection of SBA’s initial disaster assistance response to the COVID-19 pandemic. Namely, SBA’s Disaster Assistance Program offers Economic Injury Disaster Loans (EIDL) of up to $2 million for eligible entities, and, in response to the pandemic, the Coronavirus Preparedness and Response Supplemental Appropriations Act authorized SBA to provide EIDLs to eligible entities under the Small Business Act in geographic locations declared disaster areas. SBA’s release on the report is available here.

NITAAC CIO-SP4 on Track
Federal Computer Week reported that the National Institute of Health’s Information Technology Acquisition and Assessment Center (NITAAC) is still on schedule to issue its request for proposals for the CIO Solutions and Partners 4 (CIO-SP4) contract vehicle in late December. 

MAS Refresh and Mass Mod with New SINs Planned for November
GSA is planning to issue GSA MAS Solicitation 47QSMD20R0001 – Refresh #5 and an associated mass modification to all existing contracts next month. Contractors will have 90 days to accept the mass modification. Refresh #5 and the mass modification includes the following changes:

MAS Solicitation Changes:

• Incorporate a new Section 889 “Part B” Representation Requirement in SAM.

• Remove GSAR 552.204-70 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.

• Update vendor templates for Agent Authorization Letter and Request to Hold Continuous Contracts.

Category-Specific Changes:

• New Special Item Numbers (SIN) added to Large Category H – Professional Services.

• Existing Large Category H – Professional Services SIN descriptions updated.

Read more here.

GSA Posts Polaris RFI on beta.SAM.gov
GSA released a request for information for the new Polaris small business government-wide acquisition contract. Read more here.

Release of Government-Wide Office Reopening Guidelines
Nextgov reported that GSA released a Return to Work Strategy Book for the reopening of federal agencies, which is intended to be used as a guide and does not constitute directives or requirements from GSA. Read more here. 

Contractor Service Contract Reporting to be Made in SAM
The DOD Office of Acquisition and Sustainment issued a memorandum instructing DOD contractors to report their Fiscal Year 2020 manpower data under applicable service contracts in the Service Contract Reporting (SCR) section in SAM. The SCR section of SAM is available for reporting now through January 31, 2021, but DOD contractors must complete their reporting according to the terms of the contracts. Read more here.

Additional Revisions to PPP Loan Forgiveness and Review Procedures
SBA and the Department of the Treasury (Treasury) issued an interim final rule revising interim final rules posted on SBA’s and the Treasury’s websites on May 22, 2020, and June 22, 2020, by providing additional guidance concerning the forgiveness and loan review processes for PPP loans of $50,000 or less, PPP loans of all sizes, and lender responsibilities with respect to the review of borrower documentation of eligible costs for forgiveness in excess of a borrower’s PPP loan amount. Read the published version here.

Small Business Mentor-Protégé Programs
The Congressional Research Service updated its report on the federal government’s various small business mentor-protégé programs. Read more here.

Application of Micro-Purchase Threshold to Task and Delivery Orders
DOD, GSA, and National Aeronautics and Space Administration (NASA) published a proposed rule that amends the Federal Acquisition Regulation (FAR) to implement a section of the NDAA for Fiscal Year 2020 that raises the threshold for fair opportunity on certain task and delivery orders to the micro-purchase threshold. Comments to the proposed rule are due December 21, 2020. Read the published version here.

Procurement of Certain Essential Medical Supplies to Address the COVID-19 Pandemic
The U.S. Agency for International Development (USAID) published a temporary final rule that amends USAID regulations to allow USAID to waive “Source and Nationality” rules to provide for increased flexibility, targeting, and speed of procurement of essential medical supplies required to address the COVID-19 pandemic worldwide. The rule became effective on October 23, 2020, and will remain in effect through April 30, 2021. Read the published version here.

FAR Rules Agreed to by Civilian Agency Acquisition Council and Defense Acquisition Regulations Council
DOD, GSA, and NASA published a summary presentation of final rules, which summarizes FAR rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council. A companion small entity compliance guide was also published. Read the published summary here. Read the published compliance guide here.

Some of the related rules are listed below.

• Update to Excess Personal Property Procedures: This final rule amends the FAR to update internal government procedures on how agencies can locate excess personal property and to remove obsolete requirements. The rule is effective November 23, 2020. Read more here.

• Reserve Officer Training Corps and Military Recruiting on Campus: This final rule amends the FAR to implement the United States Code section that prohibits the award of certain federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. The rule is effective November 23, 2020. Read more here.

• Documentation of Market Research: This final rule amends the FAR to implement a section of the NDAA for Fiscal Year 2020 that requires the head of the agency to document the results of market research in a manner appropriate to the size and complexity of the acquisition. The rule is effective November 23, 2020. Read more here.

• Taxes – Foreign Contracts in Afghanistan: This final rule amends the FAR to add two new clauses that notify contractors of requirements relating to Afghanistan taxes or similar charges when contracts are being performed in Afghanistan. Read more here.

• Recreational Services on Federal Lands: This final rule amends the FAR to implement a Department of Labor rule that exempts certain contracts for seasonal recreational services or seasonal recreational equipment rental for the general public on federal lands from an executive order on minimum wage. The rule does not change the extent to which contractors can be used to assist federal agencies with providing services on federal lands. The rule only changes the extent to which minimum wages are required for applicable federal contracts. The rule is effective November 23, 2020. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Understanding and Avoiding Affiliation Under Small Business Contracting Programs, November 12, 2020, Peter Ford. Read more here.

WEBINAR: Succeeding in Government Small Business Contracting: Subcontracting, Mentor / Protege, and Teaming Agreements, November 17, 2020, Cy Alba. Read more here.

WEBINAR: Most Common Pitfalls for SDVOSB and HUBZone Firms, November 17, 2020, Cy Alba. Read more here.

WEBINAR: Capture Planning: Go To Market Strategies, November 20, 2020, Cy Alba. Read more here.

WEBINAR: PCI Subcontracting Summit 2020: Administration, November 24, 2020, Cy Alba. Read more here.

WEBINAR: The CARES Act: Highlights and Planning for the Future, December 16, 2020, Cy Alba, Nichole Atallah, Kathryn Hickey, and Matt Feinberg. Read more here.

CYBERSECURITY & DATA PRIVACY

NIST Needs Tech Providers Help Developing Zero-Trust Practice Guide
Nextgov reported that the National Institute of Standards and Technology (NIST) laid out components of a comprehensive zero-trust system and is asking product developers to come together and build it. The end result will be the foundation of a practice guide in a series of special publications. Prospective participants will be evaluated on a first-come, first-serve basis according to a notice posted in the Federal Register Wednesday, with kickoff happening within the month. Read more here.

GSA Considering More CMMC-Like Cyber Requirements in Governmentwide Contracts
FedScoop reported that GSA, earlier this year, added enhanced cybersecurity requirements for defense contractors to one of its newest government-wide IT contracts. The article commented that, according to one of the agency’s top IT acquisition officials, this is likely just the start of GSA including new controls for how contractors handle sensitive government information. For example, in July, GSA launched its $50 billion STARS III contract for small, disadvantaged prime contractors providing IT services. In the contract’s language, GSA said it “reserves the right” to require Cybersecurity Maturity Model Certification (CMMC) certifications for small businesses awarded spots on the government-wide IT contracting vehicle, adding that it could require vendors to meet CMMC level 1 of 5. Read more here.

BUSINESS & TRANSACTIONS

Upcoming Business & Transactions Presentations

WEBINAR: Mergers and Acquisitions in Healthcare: Getting Your House In Order, November 11, 2020, Kathryn Hickey. Read more here.