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

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LABOR & EMPLOYMENT

What President Biden’s Vaccine Mandate Means for Government Contractors and Private Employers, August 21, 2021, Nichole Atallah, Sarah Nash, and Sara Nasseri
Westlaw Today recently published an article by members of PilieroMazza’s Labor & Employment Group. The article covers President Biden’s July 29, 2021, announcement that all onsite federal employees and contractors are required to be vaccinated or face strict testing, social distancing, and masking requirements—diving into the new vaccine mandate’s implications for federal contractors and private employers. Read more here.

DOL Issues Updated Guidance on Protecting Workers from the Coronavirus
The Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) issued updated guidance to help employers protect workers from the coronavirus. The updated guidance reflects developments in science and data, including the Centers for Disease Control and Prevention’s updated COVID-19 guidance issued July 27, 2021. The updated OSHA guidance expands information on appropriate measures for protecting workers in higher-risk workplaces with mixed-vaccination status workers. Read more here.

Memorandum for Updated Mask Guidelines for All DOD Installations and Other Facilities
The Department of Defense (DOD) published a memorandum that directs all individuals, regardless of vaccination status, to wear masks in indoor settings at DOD installations and facilities in areas of substantial or high transmission, as defined by the Centers for Disease Control and Prevention, to protect against rising COVID-19 cases. The memorandum can be found here. A related statement from Deputy Pentagon Press Secretary Jamal Brown is available here.

DOD Memorandum Regarding Vaccines
Secretary of Defense Lloyd Austin published a memorandum to all Department of Defense (DOD) employees explaining his intention to seek presidential approval to make the vaccines mandatory no later than mid-September, or immediately upon Food and Drug Administration licensure, whichever comes first. The intervening few weeks will be spent preparing for this transition. In the meantime, he wrote DOD will comply with President Biden’s guidance regarding additional restrictions and requirements for unvaccinated federal personnel, which apply to uniformed and contractor personnel. Read more here. A related DOD press release is available here.

New Vaccine Requirements for Federal Workers
The White House-led Safer Federal Workforce Taskforce issued additional question and answer-style guidance addressing exactly how the recently released vaccination and testing requirements will be carried out. The new information reflects policies laid down last week requiring federal workers to either be vaccinated or abide by strict masking and testing protocols. Read more here.

Feds Could Face Prosecution, Discipline for Lying on New Vaccine Certification Form
Federal News Network reported that, according to admonitions on a new standardized vaccine attestation form and an updated list of frequently asked questions from the Biden Administration, federal employees could face criminal penalties, as well as disciplinary action from their own agencies, if they lie about their vaccination status. Contractors working in federal facilities, who will also be asked for their vaccination status, could also be in criminal jeopardy. Read more here.

Comment Period Extended for Contractor Minimum Wage Increase Rule
The Department of Labor’s (DOL) Wage and Hour Division issued a proposed rulemaking and extension of a comment period. It extends the period for submitting written comments on the Notice of Proposed Rulemaking, “Increasing the Minimum Wage for Federal Contractors.” The comment period now ends on August 27, 2021. DOL is taking this action to provide interested parties additional time to submit comments in response to a request to extend the comment period. Read more here. Read Executive Order 14026, “Increasing the Minimum Wage for Federal Contractors,” here.

Upcoming Labor & Employment Presentations

WEBINAR: Recent Trends in COVID Vaccine and Mask Mandates for Employers, August 20, 2021, Nichole Atallah and Sarah Nash. Read more here.

WEBINAR: Common Labor & Employment Mistakes in Government Contracting, September 22, 2021, Nichole Atallah. Read more here.

WEBINAR: Risk Prevention Strategies: Ownership of Employee-Developed Inventions and Intellectual Property, September 29, 2021, Sarah Nash and Camilla Hundley. Read more here.

LITIGATION & DISPUTE RESOLUTION

Jury Convicts Former Subcontractor of Fraud
The Department of Justice reported that a federal jury convicted a former government subcontractor of fraud charges relating to the Small Business Administration’s women-owned small business program. The scheme resulted in more than $6 million in fraudulently obtained contract payments. Read more here.

Jury Convicts Five Former Officers and Employees of Banc-Serv in $5 Million Scheme to Defraud SBA
The Federal Deposit Insurance Corporation Office of Inspector General reported that a federal jury convicted five former officers and employees of Banc-Serv Partners LLP—a lending service provider—in a 13-year conspiracy to defraud the Small Business Administration in connection with its programs to guarantee loans made to small businesses. 

Upcoming Litigation & Dispute Resolution Presentations

WEBINAR: False Claims Act Risks for HUBZone Companies: What You Need to Know for Your Next Proposal or Contract, September 21, 2021, Matt Feinberg and Todd Reinecker. Read more here.

GOVERNMENT CONTRACTS

PilieroMazza’s Jon Williams and Anna Sullivan Quoted on Buy American Act Contracts, August 9, 2021, Jon Williams and Anna Sullivan
Determining if a plumbing or other product meets the rules of the Buy American Act (BAA) can be complicated. During the “Deciphering Key Provisions in the Buy American Act for Government Contractors” presentation at the PMI Legislative Forum in June, PilieroMazza attorneys Jon Williams and Anna Sullivan made understanding the rules a bit easier when they delivered tips to Plumbing Manufacturers International members. Excerpt taken from the article “Experts Give Tips on Buy American Act Contracts” by Judy Wohlt for PMI Communications. Read more here.

Proposed Rule on Implementation of the Buy American Act
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a proposed rule that would make changes to the implementation of the Buy American Act. In January, President Biden signed the Executive Order (EO) 14005, “Ensuring the Future is Made in All of America by All of America’s Workers.” The EO lays out a series of actions for the federal government to maximize the use of goods, products, services, and materials produced and offered in the United States in order to strengthen domestic supplier bases and create new opportunities for American businesses. The proposed rule addresses Section 8 of the EO, which requires the Federal Acquisition Regulation (FAR) Council to “strengthen the impact of the Buy American Act.” Specifically, the proposed rule calls for an increase to the domestic content threshold, a framework for application of an enhanced price preference for a domestic product that is considered a critical product or made up of critical components, and a post-award domestic content reporting requirement for contractors. Comments are due September 28, 2021. A virtual public meeting on the proposed rule will be held on August 26, 2021, from 9:00 AM to 3:00 PM ET. Read more here. Read the EO here.

Sorting Out NITAAC’s Amendments to CIO-SP4: Federal Drive’s Tom Temin Interviews Cy Alba, August 2, 2021, Cy Alba
The National Institutes of Health has long operated a series of popular governmentwide acquisition contracts through its Technology Acquisition and Assessment Center (NITAAC). The solicitation for the new vehicle known as CIO-SP4 was barely out before it ran into protests. Since then NITAAC issued several amendments to the solicitation, causing the industry to scratch its head. To help sort it all out, Cy Alba, one of the protesting attorneys and a partner at PilieroMazza, joined Federal Drive with Tom Temin. Read more here.

Senate Passes Massive Bipartisan Infrastructure Package
The Cable News Network reported that the Senate’s massive $1.2 trillion infrastructure package marked a big bipartisan achievement after months of negotiations. The legislation would provide $550 billion in new federal spending over a five-year period. It is now headed to the House of Representatives, where it faces an uncertain future before reaching Biden’s desk. Read more here. President Biden’s remarks after the passage of the bill are available here.

OMB Working to Create a More Equitable Federal Government
Office of Management and Budget (OMB) acting Director Shalanda Young released a statement discussing the key findings and recommendations from the agency’s report assessing how government practices generate or aggravate barriers to full and equal participation by all eligible individuals. OMB completed the report in accordance with Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” Read more here. 

Revision of Limitations on Subcontracting
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a final Federal Acquisition Regulation (FAR) rule. It amends the FAR to implement regulatory changes made by the Small Business Administration (SBA) in its final rule published in the Federal Register on May 31, 2016. SBA’s final rule implements the statutory requirements of section 1651 of the National Defense Authorization Act for Fiscal Year 2013. Section 1651 revised and standardized the limitations on subcontracting, including the nonmanufacturer rule, that apply to small business concerns under FAR part 19 procurements. Section 1651 shifts the limitations on subcontracting from the concept of a required percentage of work to be performed by a prime contractor to the concept of a limit on the percentage of the overall award amount to be spent by the prime on subcontractors. Significantly, section 1651 excludes from this calculation the percentage of the award amount that the prime contractor spends on subcontractors who are similarly situated entities. This rule implements the revised and standardized limitations on subcontracting through the use of a single FAR clause for every small business program, instead of continuing to implement through multiple FAR clauses that were specific to a particular small business program. This rule also revises the FAR clause implementing the nonmanufacturer rule to reflect the standardized requirements across all the small business programs. A summary presentation of the final rule and other FAR rules is available here, and a small entity compliance guide is available here. The rule is effective September 10, 2021. Read more here.

Good Faith in Small Business Subcontracting
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a final Federal Acquisition Regulation (FAR) rule. It amends the FAR to implement section 1821(c) of the National Defense Authorization Act for Fiscal Year 2017, as implemented in the Small Business Administration final rule published in the Federal Register on November 29, 2019. Specifically, the final FAR rule at FAR 19.705-7 includes examples of a good faith effort to comply with the subcontracting plan and examples of a failure to make a good-faith effort. Failure to make a good faith effort to comply with the plan may result in assessment of liquidated damages. Additionally, the final rule amends the FAR to require that prime contractors with a commercial subcontracting plan include indirect costs in their subcontracting goals. Previously, prime contractors were required to include indirect costs in the summary subcontract report (SSR) but not in their subcontracting goals, which led to inconsistencies when comparing the SSR to the goals in the commercial subcontracting plan. A summary presentation of the final rule and other FAR rules is available here, and a small entity compliance guide is available here. The rule is effective September 10, 2021. Read more here.

OMB Memorandum: Protecting Critical Software Through Enhanced Security Measures
The Office of Management and Budget (OMB) published a memorandum for the heads of executive departments and agencies regarding securing critical software. Executive Order (EO) 14028, Improving the Nation’s Cybersecurity directs the National Institute of Standards and Technology (NIST) to issue guidance on security measures for critical software and further directs OMB to require agencies to comply with that guidance. The guidance from NIST, issued on July 8, 2021, outlines core security measures, the implementation of which is crucial for the protection of critical software. OMB’s memorandum provides instructions for the implementation of those fundamental measures required to secure the use of critical software and directs executive departments and agencies to implement those measures in phases. Read more here. Related reporting on the memorandum and agency timelines for implementation of EO 14028 is available from Federal News Network here.

Biden Signs Memorandum to Defend Industrial Controls from Hackers
The Biden Administration released a national security memorandum aimed at improving voluntary cybersecurity standards for companies that provide critical services. Read more here. A related White House fact sheet is available here.

Advanced Notice for MAS Refresh 7 and Upcoming Mass Modification
The General Services Administration (GSA) Federal Acquisition Service (FAS) is planning to issue GSA Multiple Award Schedule (MAS) Solicitation 47QSMD20R0001 – Refresh # 7 and an associated mass modification to all existing contracts in August 2021. GSA FAS will issue a bilateral modification to apply the changes to existing MAS contracts. Contractors will have 90 days to accept the mass modification. Read more here.

NSA Awards Secret $10 Billion Contract to Amazon
Nextgov reported that the National Security Agency (NSA) has awarded a secret cloud computing contract worth up to $10 billion to Amazon Web Services. The contract is already being challenged. Tech giant Microsoft filed a bid protest on July 21, 2021, with the Government Accountability Office two weeks after being notified by the NSA that it had selected AWS for the contract. The contract’s code name is “WildandStormy,” according to protest filings, and it represents the second multibillion-dollar cloud contract the U.S. intelligence community—made up of 17 agencies, including the NSA—has awarded in the past year. Read more here.

FedRAMP Releases OSCAL Validations
FedRAMP announced the development of OSCAL validations rules, which will allow FedRAMP to automate a significant portion of the security package review. Additionally, validation rules will enable CSPs and 3PAOs to conduct self-testing prior to package submissions. Read more here.

Federal Government Awards Record-Breaking $145.7 Billion in Contracting to Small Businesses
The Small Business Administration announced that the federal government exceeded its small business federal contracting goal, awarding 26.01 percent or $145.7 billion in federal contract dollars to small businesses, a $13 billion increase from the previous fiscal year. Read more here.

DOD Could Face $4 Billion in Pandemic Reimbursement Payments for Contractors
Federal Computer Week reported that civilian government and defense contractors were able to retain workers and sustain performance thanks to pandemic funding for paid leave. For the Department of Defense (DOD), that could mean about $4 billion in eligible reimbursements under the CARES Act, according to a Government Accountability Office report. 

Upcoming Government Contracts Presentations

EVENT: Acquisitions and Mergers, August 24, 2021, Peter Ford and David Shafer. Read more here.

WEBINAR: Biden Administration: The First 100 Days and Key Developments to Watch, August 24, 2021, Tim Valley. Read more here.

EVENT: CMMC: The Legal and Contractual Implications, August 31, 2021, Jon Williams and Anna Wright. Read more here.

EVENT: HUBZone Sole Source and the Price Evaluation Preference: What You Need to Know, September 8, 2021, Jon Williams. Read more here.

EVENT: Top Missteps that Lead to Legal Challenges for Government Contractors, September 10, 2021, Nichole Atallah. Read more here.

WEBINAR: Cybersecurity & Data Privacy Webinar Series: Password Protected: Essential Cybersecurity & Data Privacy Planning for Your Small Business, September 14, 2021, Anna Wright and Emily Rouleau. Read more here.

WEBINAR: Teaming Strategies and Proposal for GSA POLARIS, September 15, 2021, Cy Alba. Read more here.

WEBINAR: Construction Webinar Series: DOT’s Disadvantaged Business Enterprise Program: What Large and Small Construction Contractors Need to Know, September 23, 2021, Jackie Unger and Meghan Leemon. Read more here.

WEBINAR: Government Contractors: Key Questions You Should Be Asking Your Advisors, September 30, 2021, Cy Alba and Kathryn Hickey. Read more here.