Weekly Update for Government Contractors and Commercial Businesses– April 20, 2022

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GOVERNMENT CONTRACTS

ESOPs Have Opportunity to Shape DOD Pilot Program on Sole Source Follow-On Contracts, April 12, 2022, Kevin Barnett
In late 2021, the National Defense Authorization Act for Fiscal Year 2022 (FY 2022 NDAA) included a first-of-its-kind provision that authorized a pilot program through which businesses that are owned 100% by an employee stock ownership plan (ESOP) could qualify for sole source awards on a follow-on contract. Of course, the devil is in the details, and this potentially historic provision merely authorized the program but included no details. The opportunity to fill in those details has arrived. The Department of Defense (DOD) recently announced that companies can submit feedback through the DARS website. ESOPs or other government contractors interested in how DOD implements the FY 2022 NDAA should take this opportunity to provide “early inputs” as DOD starts the rulemaking process. Read more here.

Buy American Act Final Rule Strengthens Domestic Sourcing Requirements, April 12, 2022, Jackie Unger
The Federal Acquisition Regulatory Council published a final rule on March 7 that bolsters domestic sourcing requirements in federal procurement under the Buy American Act (BAA). This rule makes several significant changes to limit government contractors’ reliance on foreign products and component parts. Read more here.

GAO Studies Effect of Requiring Contractors to Provide Data So Agencies Can Determine Reasonableness of Price
The Government Accountability Office issued a report on the effect of Section 811 of the National Defense Authorization Act for Fiscal Year 2018 on the contracting practices of two agencies—the Department of Defense and the National Aeronautics and Space Administration. In situations where contracting officers can’t compare competing offers, Section 811 allows federal agencies to require potential contractors to provide data, such as the costs to produce goods or services or the prices others have paid, to help ensure that the government pays fair and reasonable prices. Read more here.

GAO Promotes Need for Public-Private Partnerships in Cybersecurity Policy
Nextgov reported that the Government Accountability Office (GAO) issued a report stating that public-private partnerships are necessary to protect U.S. critical infrastructure from cyberattacks. GAO also issued long-term plans developed through its Center for Strategic Foresight. Read more here.

SBA’s Equity Action Plan Aims to Level Playing Field for Small Businesses and Startups
Isabella Casillas Guzman, Administrator of the Small Business Administration (SBA), issued a statement highlighting the agency’s Equity Action Plan, which was released alongside equity plans from more than 90 federal agencies. She said SBA’s plan reaffirms the agency’s commitment to breaking down longstanding barriers so that underserved entrepreneurs can access the capital, networks, resources, and opportunity they need to realize their American dream of business ownership. She said the SBA’s Equity Action Plan aims to level the playing field for all small businesses and startups and empower them to compete in an increasingly global economy and navigate new opportunities presented by the Infrastructure and Investment Jobs Act. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Joint Venture and Mentor-Protege Bidding Strategies, April 26, Peter Ford and Meghan Leemon. Read more here.

WEBINAR: Buy American: What Government Contractors Need to Know, April 27, Jackie Unger. Read more here.

EVENT: Labor Law Impact on Contracts, April 28, Nichole Atallah. Read more here.

WEBINAR: Subcontracting Plans, May 4, Cy Alba. Read more here.

WEBINAR: Legal Insight on Innovative Strategies for Small Business Growth, May 10, Frank Massaro and Meghan Leemon. Read more here.

WEBINAR: The Ins and Outs of Recertifications for Government Contractors, May 17, Sam Finnerty. Read more here.

WEBINAR: Growth by Acquisition: Important Considerations for Government Contractors, Part 2 of 2, May 18, Cy Alba. Read more here.

EVENT: Basic Requirements for Government Contracting, May 23, Peter Ford. Read more here.

EVENT: Peeps for Keeps: Finding and Managing Talent in a Competitive Job Market, May 24. Nichole Atallah. Read more here.

LABOR & EMPLOYMENT

OPM Issues Guidance to Encourage Collective Bargaining at Federal Agencies
Government Executive reported that the Office of Personnel Management (OPM) issued a trio of memos aimed at making it easier for labor groups to communicate with federal workers, collect union dues, and organize new workplaces in the federal government. The three sets of guidance build on President Biden’s 2021 executive order aimed at identifying policies across the federal government to encourage workers in both the public and private sector to organize and form labor unions. An OPM blog said the changes are part of the administration’s goal of making the federal government a model employer. Read more here.

DOL Recovers $383,000 in Back Wages and Damages for 46 Homecare Workers near Pittsburgh
Four investigations by the Department of Labor Wage and Hour Division have led to the recovery of $383,183 in back wages and liquidated damages for 46 workers of a Trafford, PA, homecare service provider who failed to pay them overtime for their work hours exceeding 40 in a workweek. Read more here.

Landscaping Company Must Pay $220,000 in Back Wages and Penalties for Violations of H-2B Worker Program
A Department of Labor (DOL) administrative law judge has ordered a commercial landscaping company in Bayville, NJ, to pay 47 temporary workers $181,670.19 in back wages and to also pay $38,330 in civil money penalties. A DOL investigation determined that Turf Masters Inc. paid grasscutters sub-prevailing wage rates for their work hours and then tried to hide these practices from DOL. Turf Masters hired the workers from Mexico under the H-2B temporary non-agricultural workers visa program, which requires employers to pay prevailing wages and to reimburse workers for their travel expenses. Read more here.

Upcoming Labor & Employment Presentations

EVENT: Labor Law Impact on Contracts, April 28, Nichole Atallah. Read more here.

EVENT: Peeps for Keeps: Finding and Managing Talent in a Competitive Job Market, May 24, Nichole Atallah. Read more here.

LITIGATION & DISPUTE RESOLUTION

Former State Department Employee Sentenced to Prison for Honest Services Fraud
A former State Department employee was sentenced to 12 months in prison for conspiring to commit honest services fraud, the Department of Justice announced. It said that the employee, who helped evaluate bids for overseas government construction projects such as U.S. embassies and consulates, accepted $60,000 in kickback payments for giving confidential inside bidding information to a government contractor. Read more here.

Woman Pleads Guilty to False Statement in Case Involving More Than $11 Million in Government Contracts
The Department of Justice announced that Vicki Rice pleaded guilty to willfully making materially false certifications in the System for Award Management (SAM) that CAM Services, Inc., was a Service-Disabled Veteran-Owned Small Business. The business’s organizing documents listed a service-disabled veteran as a 51% owner and president and Rice as a 49% owner and vice president, but an investigation revealed that Rice, who is not a service-disabled veteran, exercised both day-to-day management and long-term decision-making for CAM. Rice faces a maximum penalty of five years in federal prison. Read more here.

Former Caltrans Contract Manager Pleads Guilty to Bid Rigging and Bribery
The Department of Justice announced that a former contract manager for the California Department of Transportation (Caltrans) pleaded guilty for his role in a bid-rigging and bribery scheme involving Caltrans improvement and repair contracts. According to a plea agreement filed in the U.S. District Court for the Eastern District of California, Choon Foo “Keith” Yong and his co-conspirators conspired from 2015 through 2019 to ensure that companies controlled by Yong’s co-conspirators submitted the winning bid and would be awarded the contract. Yong is also charged with accepting more than $800,000 in bribes. Read more here.