Weekly Update for Government Contractors and Commercial Businesses – May 19, 2021

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LITIGATION & DISPUTE RESOLUTION

Protecting Your Company Against Revenue Clawbacks: Preference Actions (Part 3 of 3), May 10, 2021, Ora Nwabueze
This is the final part of our three-part series on revenue clawbacks. The scenario: a customer or teaming partner goes bankrupt and then they (or a trustee) demand you return money they already paid you for services or goods duly rendered. In the first entry, we discussed the definition of preferences and the policy purpose of preference actions. In the second, we identified five specific actionable items to take to limit your exposure to them. In this finale to the series, we discuss critical steps that should be taken if you find yourself formally threatened with a preference action. Read more here.

Restaurants are Prime Targets for FLSA Lawsuits: 6 Tips for Employers Relying on the Tip Credit, May 7, 2021, Matt Feinberg and Camilla Hundley
The COVID-19 pandemic has been particularly difficult for the food and beverage industry. With stay-at-home orders, operational capacity restrictions, and indoor dining limitations imposed on restaurants and bars across most of the country throughout 2020 and into 2021, the impact has been significant. The hospitality industry lost hundreds of billions of dollars in anticipated revenues; beloved local eateries closed their doors temporarily or permanently; and millions of restaurant workers lost their jobs or left the hospitality industry altogether. Now, as the number of fully vaccinated individuals increases daily, state and local governments begin to consider relaxing restrictions on social distancing and operational capacity, and the public becomes more comfortable with eating out and socializing, the hospitality industry may be moving slowly toward recovery. As the food and beverage industry rebuilds, restaurants and bars must be cognizant of their obligations to employees under the Fair Labor Standards Act (FLSA); even minor mistakes in employee pay practices, including the use of the tip credit, can lead to significant liability and financial disaster. Read more here.

Upcoming Litigation & Dispute Resolution Presentations

WEBINAR: Return to Work: Employer-Mandated COVID-19 Vaccination Policies and Accommodating Employee Disabilities and Religious Beliefs, June 23, 2021, Matt Kreiser and Sara Nasseri. Read more here.

GOVERNMENT CONTRACTS

DOD Maintains COVID Plan to Speed Up Cash to Contractors
Bloomberg reported that the Department of Defense (DOD) will continue to operate with a plan developed in the early days of the COVID-19 pandemic to speed progress payments to defense contractors. Under the accelerated payments plan, the DOD provided $4.6 billion to defense contractors as of March 31, 2021. Bloomberg further reported that DOD officials commented that President Biden’s order extending former President Trump’s emergency declaration related to the pandemic indicated that companies should still benefit from the program, which boosted the percentage of periodic progress payments a contractor would receive for incurred costs. Read more here.

Secretary of Defense Says Removal of All Contractors from Afghanistan Under Way
Reuters reported that Secretary of Defense Lloyd J. Austin, III indicated that the process of removing all contractors from Afghanistan working with the U.S. was under way as part of President Biden’s withdrawal of forces from the country. Read more here.

Placing Rated Orders Under the Defense Priorities and Allocations System for COVID-19
The General Services Administration (GSA) published an Acquisition Letter (AL) that provides guidance on placing rated orders under the Defense Priorities and Allocations System to support emergency preparedness and continuity of government operations related to the COVID-19 pandemic. To ensure an appropriate control environment, only GSA Global Supply and GSA Emergency Acquisition management are authorized to issue rated orders. 

NITAAC Acting Director Brian Goodger: Statement on CIO-SP4
The National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC) published an announcement from Acting Director Brian Goodger on the status of the release of the CIO-SP4 Request for Proposal (RFP). The RFP release is expected the week of May 17, 2021. Read more here.

VA Explores Potential Future Emerging Technology-Centered Acquisitions
Nextgov reported that the Department of Veterans Affairs (VA), as it prepares to potentially purchase novel technologies and training services encompassing modern data- and user-driven approaches, released a request for information to learn more about the capabilities that are out there and the best way to buy them. Read more here.

GSA Details Plans to Help Re-Energize ‘Green Government’
Federal News Network reported that the General Services Administration (GSA) is re-energizing its commitment to green government across its entire portfolio of products and services. The agency further outlined its plans to do its part to battle climate change as required under President Biden’s January executive order, which made climate change a national security issue. Read more here.

Remote Testing of Datacenters
The Federal Risk and Authorization Management Program announced that, due to the current safety guidelines from the Centers for Disease Control and Prevention for COVID-19, Third Party Assessment Organizations that perform security assessments for initial and annual assessment authorizations for Cloud Service Providers may perform the testing of certain data centers remotely. Read more here.

8(a) STARS III GWAC Phased Awards Will Support Maximum Opportunities for 8(a) Businesses
The General Services Administration (GSA) announced that it intends to move forward with phased awards to different cohorts as outlined in the solicitation of the 8(a) STARS III Governmentwide Acquisition Contract (GWAC). Read more here.

Spring 2021 Multiple Award Schedule Quarterly Newsletter
The Multiple Award Schedule (MAS) Program Management Office published its quarterly newsletter with the latest updates and information for industry partners.

Articles in the newsletter include:

• Transactional Data Reporting Pilot 2021 Evaluation
• Temporary MAS Requirements Waiver to Support COVID
• MAS Refresh 6
• Vendor Support Center Update Project
• MAS Consolidation Phase 3
• Reminder: DOD’s FedMall Program

Read more here.

What’s Changing at SAM Integration—SCR and BioPreferred Reports
The General Services Administration (GSA) reported that, on May 24, 2021, SAM.gov will migrate into beta.SAM.gov, and the two systems will become one, and there will be some changes to how businesses submit required reports about certain contracts. Some vendors are required to submit Service Contract Reports (SCR) or BioPreferred reports about certain contracts that meet specific criteria. SCRs require contractors to report about all cost-reimbursement, time-and-materials, and labor hour service contracts and orders at or above the simplified acquisition threshold. Federal agency contractors must give preference to bio-based products within designated categories and report (called BioPreferred reports) on the amount spent per category. Those reports are submitted in legacy (or current) SAM.gov, but will be submitted in the new SAM.gov after May 24, 2021. Current reports will be transferred to the modernized site. Read more here.

What’s Changing at SAM Integration—Non-Federal Role Changes
The General Services Administration (GSA) reported that, on May 24, 2021, roles will be transferred to the new SAM.gov if users use a login.gov account with the same email used currently for a SAM.gov login. In the modernized environment, the three non-federal roles include:

• viewer (previously entity registration viewer);
• data entry (previously entity registration representative or reporter); and
• administrator (previously entity administrator).

Read more here.

FedRAMP Transition to NIST Updates
The Federal Risk and Authorization Management Program (FedRAMP) announced that it uses the National Institute of Standards and Technology’s (NIST) guidelines and procedures to provide standardized security requirements for cloud services. Last year, NIST released SP 800-53, Security and Privacy Controls for Federal Information Systems and Organizations, Revision 5 (Rev5) catalog of security and privacy controls and SP 800-53B, Control Baselines for Information Systems and Organizations. In November 2020, FedRAMP released a blog about the steps FedRAMP is taking to revise all applicable FedRAMP materials to align with NIST’s updates. FedRAMP is still in Step 1: Develop a draft FedRAMP Baseline from NIST SP 800-53 Rev5 Updates. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Understanding and Avoiding Affiliation Under Small Business Contracting Programs, June 1, 2021, Meghan Leemon. Read more here.

WEBINAR: Doing Business with the US Government as a Foreign Owned Company, June 8, 2021, Lauren Brier. Read more here.

WEBINAR: Missteps in the Bid Protest Process: War Stories from the Trenches, June 9, 2021, Katherine Burrows and Tim Valley. Read more here.

WEBINAR: Other Transaction Agreements, June 14, 2021, Cy Alba and Anna Wright. Read more here.

WEBINAR: Federal Small Business Programs – A Primer for Government Contractors, June 15, 2021, Peter Ford and Lauren Brier. Read more here.

WEBINAR: Small Business Set-Aside Programs: What You Need to Know, June 22, 2021, Cy Alba and Meghan Leemon. Read more here.

WEBINAR: DFARS Part 227: Patents, Data, and Copyrights, June 23, 2021, Cy Alba and Frank Massaro. Read more here.

WEBINAR: Past Performance: How to Use Yours, Benefit from Others’, and Defend It from Attacks, June 30, 2021, Sam Finnerty. Read more here.

LABOR & EMPLOYMENT

DOL Withdraws Independent Contractor Rule
The Department of Labor’s (DOL) Wage and Hour Division issued a withdrawal of a final rule. The action finalized the DOL’s proposal to withdraw the rule titled “Independent Contractor Status under the Fair Labor Standards Act,” which was published in the Federal Register on January 7, 2021. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: Risk Prevention Strategies: Responding Effectively to Internal Workplace Complaints, June 1, 2021, Nichole Atallah and Matt Kreiser. Read more here.

WEBINAR: Nuts and Bolts of the SCA, June 22, 2021, Nichole Atallah. Read more here.

CYBERSECURITY & DATA PRIVACY

8 Key Takeaways from Executive Order on Improving the Nation’s Cybersecurity for Government Contractors, May 14, 2021, David Shafer and Anna Wright
On May 12, 2021, the Biden administration released a far-reaching executive order intended to improve the U.S. government’s cybersecurity posture, both internally and in any private information technology (IT) systems that “touch” federal IT systems. The executive order is available here, and a related fact sheet is available here. This executive order will work in tandem with existing initiatives, such as the Cybersecurity Maturity Model Certification (CMMC), the Federal Risk and Authorization Management Program, and National Institute of Standards and Technology (NIST) publications. Notably, and unlike CMMC, the executive order is concerned more with improving the entire government’s IT systems to protect all information residing on those systems, and less with scaling protections based on types of information residing on contractor systems. If your contracts require you to access any government systems using your own internal IT systems or if you develop software for or on behalf of the government, this executive order will likely impact you. Read more here.

President Biden Extends National Emergency with Respect to Securing the Information and Communications Technology and Services Supply Chain
President Biden and the White House published a notice that extends a national emergency declared on May 15, 2019, by President Trump, via Executive Order 13873, which declared a national emergency to deal with the threat to the national security, foreign policy, and economy of the U.S. constituted by the unrestricted acquisition and use of certain information and communications technology and services transactions. Due to the continued threat presented by the unrestricted acquisition or use in the U.S. of information and communications technology or services designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of foreign adversaries, President Biden continued the national emergency declared in Executive Order 13873 with respect to securing the information and communications technology and services supply chain for one (1) year. Read more here.

DHS Launching CDO Office and CMMC-Like Risk Management Program
FedScoop reported that the Department of Homeland Security (DHS) is establishing an Office of the Chief Data Officer (CDO) to better integrate data-related fields into its operations and those of other agencies. DHS is also strengthening cybersecurity through its Zero Trust Action Group, which is working across components to implement a zero-trust security architecture. Read more here.

OMB and GSA to Prioritize Distribution of $1 Billion Technology Modernization Fund to Bolster Cybersecurity Defenses, Better Respond to Pandemic, and Support Economic Recovery
The Office of Management and Budget (OMB) and General Services Administration (GSA) announced an updated and more flexible model for distributing to federal agencies the $1 billion from the Technology Modernization Fund. The model prioritizes investments to address urgent IT modernization needs, bolster cybersecurity defenses, foster cross-agency collaboration, improve the delivery of government services for all Americans, and support services that can be scaled for impact across government. The disbursement plan creates new opportunities for investing in a diverse range of projects by allowing agencies significant flexibility in repaying awarded funds, especially for projects that tackle some of the most pressing challenges facing our nation. 

Upcoming Cybersecurity & Data Privacy Presentations

WEBINAR: Cybersecurity and 889 Compliance in 2021: What Government Contractors Need to Know, July 26, 2021, Cy Alba and David Shafer. Read more here.