Weekly Update for Government Contractors and Commercial Businesses – March 5, 2021

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LABOR & EMPLOYMENT

PilieroMazza’s Nichole Atallah Comments on DOL Targeting Government Contractors for Wage Enforcement, February 25, 2021, Nichole Atallah
Nichole Atallah, Chair of PilieroMazza’s Labor & Employment Group, was recently quoted in a Bloomberg Law article by Ben Penn entitled “Biden DOL Targeting Government Contractors for Wage Enforcement.” The article covers Department of Labor (DOL) plans to ramp up enforcement of wage standards on federally funded construction and service projects. Read more here. The full article is available here.

Lawmakers and Professional Association Call for Extension of COVID Leave Reimbursement Provision for Contractors under the CARES Act
Government Executive reported that Senators Mark Warner (D-VA) and Marco Rubio (R-FL) as well as the Professional Services Council are urging congressional leadership to extend Section 3610 leave reimbursement flexibilities for federal contractors impacted by the coronavirus pandemic. Section 3610 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) allows federal agencies to use their funds to give contractors sick or paid leave during the pandemic if they are not able to access their worksites or telework. Read more here.

DOL Develops New Joint Employer Rule
Bloomberg Law reported that the Department of Labor (DOL) is developing a new regulation on joint employment, signaling a potential move to undo the Trump administration’s business-friendly approach to the issue of shared liability among multiple companies. Bloomberg Law further reported that a proposed rule regarding same was sent to the Office of Information and Regulatory Affairs for review. Read more here.

DOL Looks to Roll Back Exemption to Anti-Discrimination Policies for Religious Organizations
Federal Computer Week reported that the Department of Labor (DOL) is planning to roll back a rule that exempts some religious organizations from anti-discrimination policies. The rule allows federal contractors organized around faith-based activities to claim religious exemptions to discriminate against certain groups in hiring decisions. Federal Computer Week reported that, according to documents filed in two lawsuits that oppose the rule, DOL intends to rescind the rule, which will also require notice-and-comment rulemaking. 

Upcoming Labor & Employment Presentations

WEBINAR: Catch Your Breath – A New Era of Labor Enforcement, March 10, 2021, Nichole Atallah. Read more here.

WEBINAR: Staying SCA Compliant in a COVID-19 Environment, March 11, 2021, Nichole Atallah. Read more here.

GOVERNMENT CONTRACTS

COVID-Related Construction Claims: 4 Key Strategies for Recovery, February 23, 2021, Nichole Atallah
The construction industry has seen increased costs and contract performance concerns resulting from the impacts of COVID-19. For construction firms contracting with the government, it is critical to understand how to position the firm to recover increased costs. This post gives four key recovery strategies to better prepare you before filing a claim or request for equitable adjustment. Read more here.

Agencies Release New COVID-19 Plans for Employees and Contractors
Federal News Network reported that the Office of Management and Budget asked agencies to update and resubmit their COVID-19 safety plans to the Federal Workforce Task Force, which was created by President Biden. Federal News Network further reported that several agencies revised their COVID-19 safety plans and reinforced telework guidance. Read more here.

President Biden Orders Sweeping Review of U.S. Supply Chain Weak Spots
The Washington Post reported that President Biden formally ordered a 100-day government review of potential vulnerabilities in U.S. supply chains for critical items, including computer chips, medical gear, electric-vehicle batteries, and specialized minerals. President Biden’s executive order is also aimed at avoiding a repeat of the shortages of personal protective gear experienced last year during the early months of the coronavirus pandemic. Read more here.

The full text of the order is available here. A relevant White House fact sheet is available here. President Biden’s remarks from the signing of the order are available here.

SBA Prioritizes Smallest of Small Businesses in the Paycheck Protection Program
The Small Business Administration (SBA) announced that the Biden-Harris Administration and SBA are taking steps with the Paycheck Protection Program (PPP) to further promote equitable relief for small businesses, including those with fewer than 10 employees and businesses in rural communities. According to the release, SBA will:

• Starting February 24, 2021, establish a 14-day, exclusive PPP loan application period for businesses and nonprofits with fewer than 20 employees;
• Allow sole proprietors, independent contractors, and self-employed individuals to receive more financial support by revising the PPP’s funding formula for these categories of applicants;
• Eliminate an exclusionary restriction on PPP access for small business owners with prior non-fraud felony convictions;
• Eliminate PPP access restrictions on small business owners who have struggled to make federal student loan payments by eliminating federal student loan debt delinquency and default as disqualifiers to participating in the PPP; and
• Ensure access for non-citizen small business owners who are lawful U.S. residents by clarifying that they may use their Individual Taxpayer Identification Number to apply for the PPP.

Read more here. Additional information from the White House is available here.

SBA Adapting IT Systems Providing COVID-19 Relief Amid Program Changes
FedScoop reported that, as new legislation and executive mandates attempt to provide COVID-19 relief where it has not yet been granted, the Small Business Administration (SBA) is hurrying to make changes to its E-Tran loan system and program portals. Read more here.

SBA Publishes Corrections on Mentor-Protégé Program and SDVOSB Rules
The Small Business Administration (SBA) published correcting amendments to the Mentor-Protégé Program regulations published on October 16, 2020 (the October 2020 rule). The October 2020 rule merged the 8(a) Business Development Mentor-Protégé Program and the All Small Mentor-Protégé Program to eliminate duplication of functions within SBA. SBA released the corrections to revise and clarify requirements for joint ventures (JV). The amendments state that SBA may consider a relationship between a prime and an ostensible subcontractor a JV. The amendment was effective February 23, 2021. Read more here.

CMMC Language Is in GSA’s Latest Contracts, but Requirements Will Be Order Specific
FedScoop reported that, according to Keith Nakasone, Deputy Assistant Commissioner for Acquisition in General Services Administration’s (GSA) Office of IT Category, while language from the Department of Defense’s Cybersecurity Maturity Model Certification (CMMC) has been included in GSA’s latest government-wide acquisition contracts, any application of its five levels will be order-specific. Read more here.

NITAAC Details Timing, Evaluation Plans for $40B CIO-SP4 Contract
Federal News Network reported that the National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC) is releasing its $40 billion Chief Information Officer-Solutions and Partners 4 (CIO-SP4) contract within the next few weeks. As many as 450 large and small contractors may receive awards by early 2022. Read more here.

The VA Issues New Data Ethics Principles
FedScoop reported that the Department of Veterans Affairs (VA) issued new ethics principles for accessing and handling veterans’ data. The principles are designed to ensure the safe and responsible use of data, especially personally identifiable information like medical data. Read more here.

Latest beta.SAM.gov Newsletter Available
The General Services Administration (GSA) published the latest version of its “beta.SAM.gov Update.” The new edition has articles covering:

• A recent stakeholder forum, complete with a link to the presentation deck and video recording;
• The multi-step transition of SAM.gov into beta.SAM.gov;
• The new look and feel of beta.SAM.gov coming in April; and
• A security feature in the new SAM.gov for entity administrators that will be available in May.

GSA’s 2GIT BPA Streamlines Process for Buying IT Products
The General Services Administration (GSA) announced the re-awarding of its 2nd Generation Information Technology (2GIT) Blanket Purchase Agreements (BPA) to more than 70 industry partners, which include more than 50 small businesses. The BPAs have an estimated value of $5.5 billion over five years and are available for use by all agencies across the federal government. Read more here.

GSA Waives Experience and Annual Financial Statement Requirements for COVID-19
The General Services Administration (GSA) released a memorandum to temporarily waive certain requirements for offers under the GSA Schedules to better support the government’s COVID-19 response. The memo waives the following requirements for both new offerors and current Schedule holders adding new solutions:

• Two years of corporate experience;
• One relevant project experience per Special Item Number; and
• Two years of financial statements.

The memo is effective immediately and directs GSA contracting officers to review any rejected offers from the past 90 days for offers that did not meet these requirements. The memo does not have an expiration date and will remain in effect until rescinded by GSA. 

DHS to Elevate Cybersecurity Across the Government
The Department of Homeland Security (DHS) issued a press release stating that the department will carry out President Biden’s vision to elevate cybersecurity across the government. DHS plays a key role in protecting the American people from cybersecurity threats. DHS’s Cybersecurity and Infrastructure Security Agency is charged with securing federal civilian government networks and critical U.S. infrastructure from physical and cyber threats. Read more here.

NIST Announces 2021 R&D Opportunities for Small Businesses
The Department of Commerce’s National Institute of Standards and Technology (NIST) announced its fiscal year 2021 Small Business Innovation Research (SBIR) Phase I topics. NIST’s SBIR program encourages domestic small businesses to engage in federal research and development that has the potential for commercialization with funding of up to $100,000 per project. The deadline to apply is April 14, 2021. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Exit Strategies for GOVCONs with Set Aside Contracts: 2021 Insights and Lessons Learned from Business Owners and Advisors, March 17, 2021, Cy Alba. Read more here.

WEBINAR: May the Clause Be with You: Certification / Information Regarding Responsibility Matters, March 23, 2021, Cy Alba and Katherine Burrows. Read more here.

LITIGATION & DISPUTE RESOLUTION

Acting Assistant Attorney General Brian Boynton Delivers Remarks at the Federal Bar Association Qui Tam Conference
The Department of Justice (DOJ) reported that Acting Assistant Attorney General Brian Boynton recently delivered remarks at the Federal Bar Association Qui Tam Conference. His remarks focused on the DOJ Civil Division’s current False Claims Act enforcement priorities, which include enforcement related to telehealth, electronic health records, pandemic-related fraud, fraud targeting seniors, and cybersecurity. He also covered how DOJ’s Civil Division identifies cases to pursue. Read more here.