Weekly Update for Government Contractors and Commercial Businesses – April 21, 2021

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GOVERNMENT CONTRACTS

SBA Pivots to Say HUBZone Firms in Redesignated QDA Cannot Maintain 10-Year Principal Office Eligibility Through Long-Term Investment, April 15, 2021, Jon Williams and Anna Wright
In January, we issued a client alert discussing how HUBZone firms in redesignated areas could plan to maintain their HUBZone status after the end of 2021. One of the primary strategies we discussed in the client alert was based on Small Business Administration (SBA) guidance about long-term investments in qualified disaster areas (QDAs). At the time, based on SBA guidance, we understood that HUBZone firms located in redesignated areas could qualify their current HUBZone principal office location as HUBZone eligible for at least the next 10 years as long as they entered into a long-term lease or bought its building before the firm’s annual HUBZone recertification in 2021. This guidance, which SBA first issued last October, hinged on whether the redesignated area was also a QDA. While SBA does not permit firms to take advantage of the new 10-year investment rule in a redesignated area, SBA’s guidance indicated that they would allow firms to take advantage of the 10-year rule if the redesignated area was also a QDA. Surprisingly, SBA recently changed its mind about QDAs and is now taking the position that a firm located in a redesignated area that is also a QDA cannot take advantage of the 10-year rule for its principal office. Read more here.

HHS Issues Proposed Regulations Governing Buy Indian Act Procurement Procedures, April 5, 2021, Peter Ford
Late last year, the Indian Health Service (IHS) of the Department of Health and Human Services (HHS) issued proposed regulations that would, if made final, govern IHS’s use of set-asides under the Buy Indian Act (Act). IHS’s current regulations give little guidance on how set-asides under the Act should be made. If the proposed regulations go into effect, officials at IHS will have a better roadmap for setting aside procurements under the Act. Below are key eligibility and procedural updates that may impact Native American businesses competing for IHS procurements. Read more here.

President Biden Releases Request for $1.5 Trillion in 2022 Discretionary Funding
The White House released President Biden’s request for 2022 discretionary funding, which includes  a request for $769 billion in non-defense discretionary funding in fiscal year 2022 and $753 billion for national defense programs.  These requests constitute 16% and 1.7% increases, respectively, from the levels enacted in fiscal year 2021.  Read more here and here.

GSA Temporarily Waives Certain MAS Solicitation Requirements to Support the Government’s Response to COVID-19
The General Services Administration (GSA) issued Acquisition Letter (AL), MV-21-03 and Supplement 1 to further leverage industry resources and capabilities in support of America’s response to the COVID-19 pandemic. The AL accomplishes this by temporarily waiving 3 Multiple Award Schedule (MAS) program solicitation requirements in MAS provision SCP-FSS-001, Instructions Applicable to All Offerors, when a company is proposing products, services, and/or solutions to directly support the government’s COVID-19 efforts. The AL waives:

• the requirement to possess two (2) years of Corporate Experience;
• the requirement to submit a Relevant Project Experience for each SIN proposed; and
• the requirement to submit Annual Financial Statements for the previous two years.

Read more here.

President Biden Announces Intent to Nominate Robin Carnahan as GSA Administrator
The White House announced President Biden’s intent to nominate Robin Carnahan as Administrator of the General Services Administration (GSA). Robin Carnahan is the former Secretary of State of Missouri and from 2016 through 2020 founded and led the State and Local Government Practice at 18F, a tech consultancy inside GSA. She is a nationally recognized government technology leader and in 2017 was named one of the federal government’s “Top Women in Tech.” Ms. Carnahan is currently a Fellow at Georgetown University’s Beeck Center, where she co-founded the State Software Collaborative. Read more here.

Final CMMC Rule Expected to Be Finished in About a Month
FedScoop reported that the final Defense Federal Acquisition Regulation Supplement rule that will require all contractors to have third-party inspections of their networks prior to working with the Department of Defense (DOD) will get its final tweaks within the next 30 to 40 days. The interim final rule for the Cybersecurity Maturity Model Certification (CMMC) that was published in September received many comments from industry that the DOD has been working to adjudicate. Read more here.

GSA Expects Multiple Award Schedule Consolidation Finished This Year
FedScoop reported that the General Services Administration (GSA) expects to complete the third and final phase of its project consolidating 24 schedules for products, services, and solutions into one Multiple Award Schedule (MAS) by the end of 2021. Read more here.

GSA, DHS Making Push to Address Shortcomings in Contractor Assessments
Federal News Network reported that the General Services Administration (GSA) and Department of Homeland Security (DHS) are offering two different, but equally important, initiatives to address and determine the importance of past performance as a key evaluation factor. DHS will try to address the evaluation of past performance by applying artificial intelligence tools to the CPARS process. GSA senior procurement executive Jeff Koses issued a memo in February promoting the use of vendor self-assessments as one step in the overall CPARS process. Read more here.

New Department of Homeland Security Contract Will Prioritize Cybersecurity
Government Matters reported that the Department of Homeland Security has a new draft of its FirstSource III solicitation. The agency will use the $10 billion small business contract for information technology software and hardware. 

Upcoming Government Contracts Presentations

WEBINAR: Smart Growth in the Federal Market: How to Thrive in the Mid-Tier or Stay Small, April 21, 2021, Cy Alba and Peter Ford. Read more here.

WEBINAR: ChallengeHER: Joint Ventures and the WOSB Program, April 22, 2021, Meghan Leemon. Read more here.

WEBINAR: Navigation the FAR/DFARS: The Most Confusing and Little Known Clauses, April 26, 2021, Tim Valley and Christine Fries. Read more here.

WEBINAR: The First 100 Days: Deciphering Key Provisions in the Buy American Act for Government Contractors, April 27, 2021, Jackie Unger and Anna Sullivan. Read more here.

WEBINAR: FUN with the FAR: Parts 19 & 26, Small Business Methods and Other Socioeconomic Programs, May 5, 2021, Cy Alba. Read more here.

WEBINAR: SBIR Contracting – Information for Primes and Subs, May 10, 2021, Cy Alba and Anna Wright. Read more here.

WEBINAR: Using OTAs as an Acquisition Mechanism in Defense Contracts: Benefits and Pitfalls, May 18, 2021, Jackie Unger. Read more here.

LABOR & EMPLOYMENT

Labor Chief Walsh Puts Hold on OSHA Virus Rule for More Analysis
Bloomberg Law reported that release of the Occupational Safety and Health Administration’s (OSHA) COVID-19 emergency temporary standard is on hold at the request of Secretary of Labor Marty Walsh. “Secretary Walsh reviewed the materials, and determined that they should be updated to reflect the latest scientific analysis of the state of the disease,” a Labor Department spokesperson told Bloomberg Law. Read more here.

DOL Announces Relaunch of Assistance Initiative to Ensure Employers, Others Comply with Labor-Management Reporting, Disclosures
The Department of Labor (DOL) announced that its Office of Labor-Management Standards (OLMS) has relaunched the Persuader Reporting Orientation Program (PROP), a compliance assistance initiative to inform employers and their representatives about potential reporting obligations under the Labor-Management Reporting and Disclosure Act (LMRDA). The PROP initiative was in effect previously from 2011 to 2016. The LMRDA requires employers and labor relations consultants to file reports with OLMS on agreements or arrangements to persuade employees concerning their rights to organize and bargain collectively. Employers and consultants must also report agreements or arrangements to supply the employer with certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer. These reports seek to inform workers better in making determinations regarding the exercise of their rights to organize and bargain collectively. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: FUN with the FAR: FAR Parts 22 & 23, Application of Labor Laws to Government Acquisitions, May 19, 2021, Nichole Atallah. Read more here.

WEBINAR: DFARS Part 222: Application of Labor Laws to Government Acquisitions, May 19, 2021, Sarah Nash. Read more here.

BUSINESS & TRANSACTIONS

Upcoming Business & Transactions Presentations

WEBINAR: Key Considerations for Venture Financing Transactions Involving Government Contractors, April 29, 2021, Kathryn Hickey. Read more here.