Weekly Update for Government Contractors and Commercial Businesses – April 6, 2022

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GOVERNMENT CONTRACTS

OHA Confirms M&A-Related Recertification Won’t Impact Contractors’ Eligibility Under Pre-Existing Contracts, April 1, 2022, Samuel S. Finnerty 
For small businesses, navigating the recertification rules promulgated by the Small Business Administration (SBA) is no easy task. SBA rules generally provide that the size of a concern is determined at the date of its initial offer, including price, and if the firm is small at that time, it generally will be considered small throughout the life of the contract. However, if a concern undergoes a merger, sale, or acquisition, or novates its small business contract to another concern (each a triggering event), SBA regulations require the contractor to recertify its size. Read more here.  

JD Supra Again Distinguishes PilieroMazza for Government Contracting Content, March 31, 2022, Antonio R. Franco, Cy Alba, Nichole D. Atallah
PilieroMazza continues its streak by earning JD Supra’s 2022 Readers Choice Award as the “Top Government Contracting Firm” for content for a fifth consecutive year. Partners Isaias “Cy” Alba, IV, of the Government Contracts Group and Nichole Atallah of the Labor & Employment for Government Contractors Group were among JD Supra’s top five authors from a pool of more than 1,900 authors. Read more here.

PilieroMazza Win in Game-Changing Randolph-Sheppard Decision Could Increase Food Service Attendant Contract Awards to Federal Contractors, March 29, 2022, Katherine B. Burrows, Matthew E. Feinberg
The Government Accountability Office (GAO) issued a notable decision on March 24, 2022, in a protest filed by PilieroMazza attorneys Katie Burrows and Matt Feinberg on behalf of J.W. Mills Management, LLC (J.W. Mills), B-420416. The decision clarifies the scope of the Randolph-Sheppard Act (RSA) and could lead to new contract award opportunities for federal contractors in the food service attendant, mess attendant, and dining facility attendant industry. Federal contractors operating in the food service attendant space should consider how this decision could benefit them in future solicitations procured subject to the RSA. Read more here.

GSA Moratorium on Enforcement of Economic Price Adjustment Provisions: 3 Important Takeaways for Government Contractors, March 28, 2022, Jon Williams, Katherine B. Burrows
In response to rising costs for government contractors amid skyrocketing inflation, the General Services Administration (GSA) is temporarily suspending the enforcement of many limitations contained in several Economic Price Adjustment (EPA) contract clauses. We summarize three important takeaways for federal contractors—especially small businesses and small disadvantaged businesses—to help you manage your GSA contract performance in light of rapidly changing economic circumstances. Read more here.     

SBA Issues Four Final Rules to Increase Small Business Size Standards for Numerous Industry Sectors
On March 31, 2022, the Small Business Administration (SBA) issued four final rules that increase the small business size standards for many industries:

(1) The SBA increased the small business size standards for 46 industry sectors related to Professional, Scientific and Technical Services; Management of Companies and Enterprises; Administrative and Support and Waste Management and Remediation Services. Read more here.

(2) The SBA increased the small business size standards for 68 industries in the following sectors:  Agriculture, Forestry, Fishing and Hunting; Mining, Quarrying, and Oil and Gas Extraction; Utilities; Construction. Read more here.

(3) The SBA increased its small business size standards for 70 industries in the following sectors: Education Services; Health Care and Social Assistance; Arts, Entertainment and Recreation; Accommodation and Food Services; Other Services. Read more here.

(4) The SBA increased its small business size standards for 45 industries in the following sectors: Transportation and Warehousing; Information; Finance and Insurance; Real Estate and Rental and Leasing. Read more here.

As a result, many businesses will gain eligibility, or retain eligibility for a longer period, for federal small business assistance programs including SBA’s business loan programs, Economic Injury Disaster Loan (EIDL) program, and federal procurement programs that provide targeted, set-aside opportunities for small businesses. Eligible small businesses also may benefit through reduced fees, less paperwork, and fewer compliance requirements.

SBA Announces 70 Percent Increase in Industries Eligible for Women-Owned Small Business Federal Contracting Program
The Small Business Administration (SBA) updated the list of eligible industries for federal contracting set-asides for the Women-Owned Small Business Federal Contracting Program based on a recent study analyzing industry gaps for women-owned businesses. The SBA-commissioned study showed that women-owned businesses are underrepresented or substantially underrepresented in the federal marketplace across hundreds more North American Industry Classification System (NAICS) industries than previously recognized. Read more here.

Senate Bill Seeks to Prevent Organizational Conflicts of Interest in Federal Acquisition Act
The Senate introduced legislation (S. 3905) to help identify and mitigate potential conflicts of interest between taxpayer-funded projects and government contractors’ other business opportunities. Read more here.

Use of Sole-Source 8(a) Contracts over $22 Million Has Increased in DOD Small Business Contracting
The Government Accountability Office (GAO) reports that in fiscal year 2021, the Department of Defense (DOD) obligated about $10.9 billion to contracts awarded through the Small Business Administration’s 8(a) Business Development program. This program is one of the federal government’s primary means for developing small businesses owned by socially and economically disadvantaged individuals. Contract awards under this program may be competed among eligible 8(a) firms or awarded on a sole-source basis in certain instances. For example, 8(a) firms owned by Alaska Native Corporations, Indian Tribes, or Native Hawaiian Organizations (for DOD only) can receive sole-source contracts for any dollar amount, while other 8(a) firms generally must compete for contracts valued above certain thresholds. Read more here. 

DOD Class Deviation Memo Sets Forth Enhanced Postaward Debriefing Rights
When providing a postaward debriefing of unsuccessful offerors under Federal Acquisition Regulation (FAR) 15.506(d), contracting officers must include in the debriefing information an opportunity for the unsuccessful offeror to submit additional questions related to the debriefing within two business days after receiving the debriefing, according to a Department of Defense (DOD) class deviation memorandum that takes effect immediately. The agency must respond in writing to the questions within five business days. Read more here.

FEC Won’t Amend Rules on Determining Corporate Family Entities for Purposes of Federal Contractors’ Political Contributions
The Federal Election Commission will not amend its regulations for determining the entities of a corporate family for purposes of prohibiting contributions by federal contractors. Read more here.

GSA Releases Five-Year Strategic Plan
The General Services Administration (GSA) released a five-year strategic plan that outlines the agency’s priorities and initiatives. These include making it easier and faster for contractors to work with GSA, using technology and innovation in real estate and acquisition, and championing interagency collaboration. Read more here

Upcoming Government Contracts Presentations

WEBINAR: Flowdowns, April 6, Cy Alba. Read more here.

WEBINAR: Bidding for Major Contracts? Compliance Requirements You Should Prepare for Now, April 7, Cy Alba and Meghan Leemon. Read more here.

WEBINAR: SBA Recertifications and Their Impact on Small Business, April 19, Sam Finnerty and Meghan Leemon. Read more here.

WEBINAR: Return to Work, April 20, Cy Alba. Read more here.

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

Hiring Surges in Biden’s 2023 Budget Proposal Would Greatly Boost OFCCP Staff
The Biden administration is planning to add 82,000 federal employees in fiscal year 2023, a 3.6 percent increase that would bring the civil service to its highest total since 1969. The Office of Federal Contract Compliance Programs (OFCCP) proposed a 50 percent staffing surge, and the Occupational Safety and Health Administration (OSHA) plans to increase its workforce by about 27 percent. Read more here.

Biden Proposes A 4.6 Percent Raise for Federal Workers for 2023
Government Executive reports that President Biden called for federal workers to receive their largest annual pay raise in 20 years, releasing a budget proposal that would grant civilian employees an average pay increase of 4.6 percent. 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.