Weekly Update for Government Contractors and Commercial Businesses – August 26, 2021

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GOVERNMENT CONTRACTS

Defense & Aerospace Report: Cy Alba Discusses Legal Implications of Latest Cyber Orders, Rules, and Regulations
Cy Alba, a Partner at PilieroMazza, recently joined Defense & Aerospace Report Editor Vago Muradian to discuss the legal implications of President Biden’s cyber executive order, key upcoming requirements, and the impact for prime and subcontractors. Their discussion also touched on improving the supply chain, the outlook for the Cybersecurity Maturity Model Certification process, and the role of cyber in the boardroom. Visit this link to access the podcast. Read more here.

Class Deviation Regarding Exceptions to the Limitations on Subcontracting Requirements for Small Business Concerns Under FAR Part 19
The Civilian Agency Acquisition Council published a memorandum for civilian agencies authorizing them to issue a class deviation to apply exceptions to the limitations on subcontracting requirements for small business concerns. The memorandum provides recommended deviated language for FAR clause 52.219-14, Limitations on Subcontracting, in order to align the clause with the Small Business Administration’s regulations, which include exclusions on service contracts for certain other direct costs and work performed outside the U.S. The memorandum goes on to explain that, in accordance with their agencies’ guidance, contracting officers should use the deviated clause in lieu of FAR clause 52.219-14. Read more here.

OMB Gives Agencies 60 Days to Identify and Begin Securing Critical Software
FedScoop reported that, per a recent memorandum, the Office of Management and Budget (OMB) has given federal agencies 60 days to identify all their critical software in use or being acquired and a year to secure it. OMB directed agencies to focus on securing standalone, on-premise software performing “security-critical” functions or posing “significant potential for harm” if compromised as part of the initial implementation phase of critical software guidance released by the National Institute of Standards and Technology on July 8, 2021. Read more here. The OMB memorandum is available here.

Department of Homeland Security Considering CMMC-Like Compliance Effort
Nextgov reported that the Department of Homeland Security will conduct a “pathfinder assessment” to determine a path forward regarding a new cybersecurity compliance program that shares similarities with the Department of Defense’s Cybersecurity Maturity Model Certification. Read more here.

DOD Considering Marketplace for Smaller Cloud Vendors as Follow-On to JEDI Replacement
FedScoop reported that the Department of Defense will look at setting up a marketplace for smaller cloud vendors as a “follow-on” contract to the eventual Joint Warfighter Cloud Capability acquisition. Read more here.

SBA Sees Biden Executive Orders as Opportunity to Increase Equity in Small Business Contracts
Federal News Network reported that the Small Business Administration, as part of the Biden Administration’s diversity, equity, and inclusion work, is stepping up to increase the percentage of federal contracting dollars that go to small, disadvantaged businesses. Read more here.

Paycheck Protection Program Direct Borrower Forgiveness Portal Surpasses Expectations, Accepts More Than 340K Submissions
The Small Business Administration reported that, since the opening of the Paycheck Protection Program (PPP) Direct Borrower Forgiveness Portal on August 4, 2021, it has received more than 340,000 submissions from borrowers with PPP loans of $150,000 or less. Read more here.

FCC Proposes to Revise Rules on Equipment Authorization Processes
The Federal Communications Commission (FCC) published a proposed rule and request for comments aimed at protecting communications networks from communications equipment and services that pose a national security risk. The proposed rule would revise regulations related to the FCC equipment authorization processes to prohibit authorization of any “covered” equipment on the recently established Covered List. The FCC seeks comment on how to leverage its equipment authorization program to encourage manufacturers who are building devices that will connect to U.S. networks to consider cybersecurity standards and guidelines. Comments are due September 20, 2021. Reply comments and comments on the Paperwork Reduction Act proposed information collection requirements are due October 18, 2021. Read the proposed rule here. The request for comments is available here.

Upcoming Government Contracts Presentations

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: Exit Worth Celebrating – It’s Never Too Early to Plan for Your Exit, September 21, 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.

LITIGATION & DISPUTE RESOLUTION

Defense Contractor and Employees Sentenced for Procurement Fraud Scheme
The Department of Justice reported that a U.S. defense contractor, its owner, and four of its employees were sentenced for engaging in an extensive procurement fraud scheme involving more than $7 million in government contracts. Read more here.

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.

WEBINAR: FLSA and Wage-and-Hour Issues for Restaurants, December 7, 2021, Matt Feinberg. Read more here.

LABOR & EMPLOYMENT

DOL Recovers $1.7M in Back Wages, Fringe Benefits for 81 Employees Wrongly Classified by Defense Contractor in 21 States
The Department of Labor (DOL) reported that a South Carolina-based contractor has paid $1,705,441 in back wages and fringe benefits to 81 employees after the company violated requirements of the McNamara-O’Hara Service Contract Act. Read more here.

DOJ Guidance for Employees, Contractors, and Visitors Concerning COVID-19 Vaccination Attestation Procedures
The Department of Justice (DOJ) published a memorandum regarding the implementation of new policies and protocols for the federal workplace with respect to mask wearing, social distancing, and COVID-19 testing. Among other items, the memorandum explains that DOJ is beginning implementation of the Office of Management and Budget’s vaccine attestation requirements for employees, contractors, and visitors entering DOJ facilities. 

New Procedures for Onsite Contractors at DOS Facilities in Response to the Ongoing COVID-19 Pandemic
The Department of State (DOS) published a memorandum detailing its current operating procedures for onsite contractors at DOS facilities, which includes information on its policies surrounding the Office of Management and Budget’s Certification of Vaccination. Read more here.

Second Agency Announces COVID-19 Vaccine Mandate for Some Civilian Employees
Government Executive reported that the Health and Human Services Department became the second federal agency (following the Department of Veterans Affairs) to mandate COVID-19 vaccines for some civilian employees, announcing it will require the shots for its healthcare workforce. Read more here.

Upcoming Labor & Employment Presentations

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

WEBINAR: OFCCP Refresh and Reset: What to Watch for in 2022, October 12, 2021, Sara Nasseri. Read more here.