Weekly Update for Government Contractors and Commercial Businesses – August 10, 2023

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LABOR & EMPLOYMENT

DOL Finalizes Landmark Changes to Davis-Bacon Act: What Federal Construction Contractors Need to Know, PilieroMazza Client Alert, Sarah L. Nash and Kirby Rousseau

On August 8, 2023, the Department of Labor (DOL) announced their final rule (Final Rule) revising the Davis-Bacon Act (DBA) and Davis-Bacon Related Acts (Related Acts) regulations. These are the largest and most significant revisions in the last 40 years. In this client alert, PilieroMazza’s Labor & Employment Group summarizes key points of the Final Rule and its impact on prevailing wage and fringe benefit requirements for contractors working on government construction projects. The Final Rule is expected to be published in the Federal Register shortly and will go into effect 60 days from publication. Read more here.

Clocking in with PilieroMazza: Labor and Employment News for Government Contractors: UPDATE: I-9 Physical Inspections Required by August 30, PilieroMazza Podcast, Sarah L. Nash. Click here to listen to the podcast.

Pre-enforcement Notice and Conciliation Procedures, Department of Labor (DOL), Office of Federal Contract Compliance Programs (OFCCP)

DOL publishes this final rule to modify procedures and standards the OFCCP uses when issuing pre-enforcement notices and securing compliance through conciliation. This final rule strengthens OFCCP’s enforcement by rescinding the evidentiary standards and definitions codified in 2020, which hindered the agency’s ability to pursue meritorious cases. OFCCP is instituting a streamlined, effective, and flexible pre-enforcement and conciliation process that promotes greater consistency with Title VII of the Civil Rights Act of 1964. The final rule is available here and is effective September 5, 2023. 

Federal Acquisition Regulation (FAR): Training to Prevent Human Trafficking for Certain Air Carriers

Department of Defense, General Services Administration, and National Aeronautics and Space Administration are proposing to amend the Federal Acquisition Regulation to implement a section of the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018, which requires that domestic carriers who contract with the federal government to provide air transportation must submit an annual report with certain information related to prevention of human trafficking. The proposed rule is available here. Comments are due October 6, 2023.

Upcoming Labor & Employment Presentations

CONFERENCE: 2023 National HUBZone Conference, “New Employment Issues in Government Contracting,” August 22, 2023, Sarah L. Nash. Read more here.

CYBERSECURITY & DATA PRIVACY

Department of Defense (DOD) Releases Plan for Implementing Cyber Workforce Strategy

In February, Deputy Secretary of Defense Kathleen H. Hicks signed the DOD Cyber Workforce Strategy, which sets the foundation for how DOD will foster a cyber workforce capable of executing the department’s complex and varied cyber missions. On August 3, 2023, DOD released a plan for how it will go about implementing that strategy — the “DOD Cyber Workforce Strategy Implementation Plan.” Read more here. 

GOVERNMENT CONTRACTS

Small Business Administration (SBA)

1. Meeting of the Interagency Task Force on Veterans Small Business Development. The SBA is issuing this notice to announce the date, time, and agenda for the next meeting of the Interagency Task Force on Veterans Small Business Development (IATF). The purpose of this meeting is to discuss efforts that support veteran-owned small businesses, updates on past and current events, and the IATF’s objectives for FY2023. The notice is available here. The meeting will be held on September 13, 2023, from 1 PM to 3 PM ET via Microsoft Teams (meeting is available here). Comments are due September 8, 2023. More information is available here. 
2. Meeting of the Advisory Committee on Veterans Business Affairs (ACVBA). The SBA is issuing this notice to announce the date, time, and agenda for a meeting of the ACVBA. The purpose of this meeting is to discuss efforts that support veteran-owned small businesses, updates on past and current events, and the ACVBA’s objectives for FY2023. The notice is available here. The meeting will be held on September 14, 2023, from 9 AM to 1 PM ET via Microsoft Teams (meeting is available here). Comments are due September 8, 2023. More information is available here. 

Acquisition Regulation

1. Use of Acquisition 360 to Encourage Vendor Feedback. Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) are issuing a final rule amending the Federal Acquisition Regulation (FAR) to encourage use of voluntary feedback mechanisms, where appropriate, to support continual improvement of the acquisition process. The unpublished final rule is available here and is effective September 22, 2023. 
2. Small Disadvantaged Business Threshold. DOD, GSA, and NASA are issuing a final rule amending the FAR to implement regulatory changes made by the Small Business Administration to adjust the net worth threshold for owners of small, disadvantaged business concerns. The unpublished final rule is available here and is effective September 7, 2023.
3. Update to Acquisition Streamlining and Standardization Information System Database References. DOD, GSA, and NASA are issuing a final rule amending the FAR to update contact information, web addresses, and office titles associated with the DOD Acquisition Streamlining and Standardization Information System and clarify the authoritative source for a form. The unpublished final rule is available here and is effective September 7, 2023.
4. Technical Amendments. DOD, GSA, and NASA are issuing an amendment to the FAR to make needed editorial changes. The unpublished final rule is available here and is effective September 7, 2023.
5. Federal Acquisition Circular (FAC) 2023-05; Small Entity Compliance Guide (SECG). Under the joint authority of DOD, GSA, and NASA, the SECG was prepared in accordance with section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It consists of a summary of the rules appearing in FAC 2023-05, which amends the FAR. More information regarding these rules is available by referring to FAC 2023-05. The unpublished SECG is available here and is effective upon publication.

Agency Information Collection Activities; Proposals, Submissions, and Approvals: Small Business Mentor Protégé Program (MPP)

National Aeronautics and Space Administration (NASA) is proposing to amend the NASA Federal Acquisition Regulation Supplement (NFS) to reflect updates to NASA’s MPP including: the requirement of Small Business Specialists’ concurrence on the signed letter of endorsement; requirements associated with credit received towards subcontracting goals; the change of the MPP reporting requirement from semi-annually to annually; identified the NASA Mentor Protégé Program Office; and clerical, semantic improvements. NASA also proposes to amend the NFS language to reflect the annual negotiation of its small business percentage goals. Lastly, the NFS will be amended to emphasize collaboration amongst representatives from the Office of Small Business Programs, Office of Procurement, and Program Offices to reduce barriers to entry and to opportunities for all small business concerns and Historically Black Colleges and Universities or Minority Institutions. The unpublished notice is available here. Comments are due 30 days after publication (September 7, 2023). 

Contract Identification of the Department of the Air Force Federal Acquisition Regulation Supplement in Provisions and Clauses, Department of Defense (DOD) Memorandum

On August 2, 2023, DOD Principal Director of Defense Pricing and Contracting John M. Tenaglia outlined two rules for “writing, reading, and transacting the ‘name of the regulation’ data element” for solicitations. Read more here. 

Proposed Contractor Climate Change Rule Faces More Questions from Republican Lawmakers, Government Executive

House overseers demand a briefing from acquisition officials on the draft regulation requiring companies doing business with the federal government to report on their greenhouse gas emissions. Read more here. 

Agency Market Research Habits Ignore Too Many Commercial Options, Bloomberg Government

Contractors and federal acquisition innovation advocates say better market research when awarding contracts could be a game changer in shepherding advanced technology to the government. Read more here (subscription required).

Climate, Satellites Feature in IT Contract Spending at NOAA, Bloomberg Government

Federal contractors can expect that FY2024 funding of National Oceanic and Atmospheric Administration programs will lead to IT procurement. Read more here (subscription required). 

Deviations From The FAR: Policy And Practice, Briefing Papers

The May 2023 issue of Briefing Papers examines the policy and practice of agencies’ use of deviations from the Federal Acquisition Regulation (FAR). It discusses the FAR’s coverage of deviations, the legal effect of unauthorized deviations, deviations requiring public notice and comment, and the exercise of deviation authority in practice and concludes with a set of practical guidelines. Read more here.

Upcoming Government Contracts Presentations

CONFERENCE: 2023 National HUBZone Conference, “Joint Venture Eligibility: Refresher on Requirements for Small Business Contractors,” August 22, 2023, Jon Williams. Read more here.

CONFERENCE: 2023 National HUBZone Conference, “GovCon Mergers and Acquisitions: Plan Today for a Stronger Tomorrow,” August 23, 2023, Isaias “Cy” Alba, IV. Read more here.

WEBINAR: Unlocking the Secrets of Debriefings, Government Evaluation of Proposals and Protests, September 7, 2023, Peter B. Ford and Meghan F. Leemon. Read more here.

WEBINAR: How to Use and Protect your Intellectual Property When Performing Federal Contracts, September 27, 2023, Isaias “Cy” Alba, IV. Read more here.