Weekly Update for Government Contractors and Commercial Businesses – November 24, 2020

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LITIGATION & DISPUTE RESOLUTION

BLOG: Errors to Avoid when Moving State Litigation to Federal Court, November 17, 2020, Megan Benevento
Depending on the claims, parties, and preferences, there are multiple forums where litigants can choose to file suit. The majority of cases start in state courts, as they are courts of general jurisdiction. For defendants, moving a state court case to a federal court offers certain tactical benefits. Read more here.

BLOG: Healthcare Blog Series: “Safe Harbor” Exceptions, Common Infractions, and Legislative Updates to the Anti-Kickback Statute and Stark Law, November 11, 2020, Matt Kreiser
The first installment of this series introduced the Anti-Kickback Statute (AKS) and the Physician Self-Referral Law (Stark Law), two of the most well-known anti-fraud and -abuse statutes in the healthcare industry. It examined their main differences and respective effects on business relationships and transactions for government contractors and commercial businesses operating in the healthcare sector. This installment examines the “safe harbor” provisions / exceptions under the AKS and Stark Law, common transactions that violate each statute, and recent legislative updates. To address concerns on whether a particular payment or business arrangement is subject to an applicable safe harbor, government contractors and commercial businesses should seek legal advice to minimize the risk of potential government investigations, costly litigation, criminal liability, or exclusion from participation in federal healthcare programs. Read more here.

LABOR & EMPLOYMENT

Eighteen State Attorneys General Oppose President Trump’s Executive Order on Diversity Training
Federal Computer Week reported that a coalition of 18 state attorneys general and the attorney general for the District of Columbia sent a letter to President Trump expressing their serious concerns with his executive order banning “divisive concepts” in diversity training unless guidance on the order is updated to permit implicit bias and unconscious bias trainings. In particular, the group cited a concern that the language in the executive order could effectively ban implicit bias training for federal grant recipients and contractors. The letter is available here.

DOL Announces Registration Requirements for Pooled Plan Providers
The Department of Labor announced a final rule establishing registration requirements for pooled plan providers. The final rule establishes a straightforward electronic registration process for businesses that want to offer pooled employer plans. Read more here.

DOL Issues Guidance Alerting Employers to Frequently Cited Standards Related to COVID-19 Inspections
DOL’s Occupational Safety and Health Administration has issued guidance and an accompanying one-page document to help employers understand which standards are most frequently cited during coronavirus-related inspections. Read more here.

OFCCP Codifies Procedures to Resolve Potential Discrimination
DOL’s Office of Federal Contract Compliance Programs (OFCCP) issued a final rule to codify procedures it uses to resolve potential discrimination and other material violations of the laws and regulations administered by OFCCP applicable to federal contractors and subcontractors, add clarifying definitions to specify the types of evidence OFCCP uses to support its discrimination findings, and correct the title of OFCCP’s agency head. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: May the Clause Be with You: FAR 52.222-43, Price Adjustments, December 16, 2020, Nichole Atallah. Read more here.

GOVERNMENT CONTRACTS

Potential Impacts of Biden’s Presidency on Small Businesses
Federal News Network reported that, among other initiatives aimed at stimulating economic growth within minority communities, President-Elect Joe Biden has proposed tripling agency spending on goods and services procured from small businesses owned by racial minorities. Currently, the government aims to award at least 5% of all federal contracting dollars to small, disadvantaged businesses as part of the Small Business Administration’s 8(a) Business Development program. If enacted, his proposal would move the target to 15% by 2025. Read more here.

SBA Proposes Small Business Size Standard Revisions in Three Industry Sectors
The Small Business Administration (SBA) is seeking public comments on a proposed rule that would revise the small business size standards for businesses in three North American Industrial Classification System (NAICS) sectors to increase small business eligibility for SBA’s loan and contracting programs. The NAICS sectors reviewed in the proposed rule are: Professional, Scientific, and Technical Services; Management of Companies and Enterprises; and Administrative and Support and Waste Management and Remediation Services. Comments are due January 21, 2021. 

Homeland Security’s Small Business Program Will Focus on Viruses, Security, and Networks in 2021
Nextgov reported that next year, according to a draft list of 12 focus topics for 2021, the Department of Homeland Security plans to use small businesses to help solve critical issues around improving physical and digital security, screening for infectious diseases, and building safer vehicles. Read more here.

GSA Fall 2020 MAS Quarterly Newsletter
Every quarter, the General Services Administration’s Multiple Award Schedule  Program Management Office publishes a newsletter full of all the latest updates and information for industry partners. Read more here.

Air Force Steering Investment Capital into Small Businesses
National Defense Magazine reported that the Air Force is trying to bolster and expand its innovation base by steering investment capital into small businesses and nontraditional firms and making sure contracting officers pay more attention to businesses that may have not previously held federal contracts. Read more here.

Guidance on Improvements in Federal Spending Transparency for Financial Assistance
The Office of Management and Budget issued guidance to all agencies and departments on improving their transparency of spending on financial assistance. Read more here.

Judge Orders the Release of Data on Emergency Loans for Small Businesses
Government Executive reported that District of Columbia Circuit Judge James Boasberg ordered the Small Business Administration to release the names, addresses, and precise loan amounts of all PPP and EIDL borrowers by November 19, 2020, after several news organizations filed a Freedom of Information Act lawsuit seeking such information. Read more here.

SBA Announces New Reduced 504 Loan Debenture Rates
The Small Business Administration announced the updated interest rates for the 504 Loan Program offered by Certified Development Companies. The program now allows for 10, 20, and 25-year interest rates at 2.231 percent, 2.364 percent, and 2.399 percent, respectively. Small businesses can now apply for a 504 loan at these low-interest rates. Read more here.

DOD Extends Service Contract Reporting
The Department of Defense released a memorandum that allows a one-time extension for the Fiscal Year 2020 Service Contract Reporting submission date. The submission date changed from October 31, 2020, to January 31, 2021. Read more here.

Class Deviation: Limitations on Subcontracting for Small Business
The Department of Defense’s  Defense Pricing and Contracting (DPC) issued a class deviation on Limitations on Subcontracting. It revises the class deviation issued on April 3, 2020, correcting errors in Attachments 1 and 3. Read more here.

Correction to SBA’s Mentor-Protégé Program Final Rule
The Small Business Administration issued a correction to its rule merging the 8(a) Business Development Mentor-Protégé Program and the All Small Mentor-Protégé Program, which makes three technical corrections to the final rule. Read more here. Watch PilieroMazza’s webinar on the final rule here.

Rule on Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
The National Aeronautics and Space Administration (NASA) published a direct final rule amending NASA’s regulations on uniform administrative requirements, cost principles, and audit requirements for federal awards, to align with the OMB’s recent amendments to its regulations on grants and agreements. The rule is effective January 11, 2021. Read more here.

Upcoming Government Contracts Presentations

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

CYBERSECURITY & DATA PRIVACY

Cyber and Artificial Intelligence Investments Could Trend Up in Defense Spending
Federal Computer Week reported that investments in cybersecurity and artificial intelligence efforts will likely continue to increase, even if overall defense spending remains flat in future years, but a worsening pandemic could dampen those projections. 

Upcoming Cybersecurity & Data Privacy Presentations

WEBINAR: Forum on Cyber Security Compliance for Small Businesses, December 3, 2020, David Shafer and Anna Wright. Read more here.

WEBINAR: Solving CMMC for Small Business, December 15, 2020, David Shafer. Read more here.