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Department of Defense (DOD) Proposed Rule: National Industrial Security Program Operating Manual (NISPOM); Amendment
On December 13, the DOD published a proposed rule amending the NISPOM based on public comments received on a final rule published on December 21, 2020. The proposed amendments address implementation guidance and costs for the Security Executive Agent Directive (SEAD) 3, clarifications on procedures for the protection and reproduction of classified information, controlled unclassified information (CUI), National Interest Determination (NID) requirements for cleared contractors operating under a Special Security Agreement for Foreign Ownership, Control or Influence, and eligibility determinations for personnel security clearance processes and requirements. The Proposed Rule is available here. Comments close February 12, 2024.
Small Business Administration (SBA) Notice of Availability of Small Business Size Standards: Revised Size Standards Methodology
On December 11, SBA published a Notice advising that it revised its white paper explaining how it establishes, reviews, and modifies small business size standards. The revised white paper provides a detailed description of SBA’s size standards methodology, including changes from SBA’s 2019 Revised Size Standards Methodology, which guided SBA’s five-year review of size standards as required by the Small Business Jobs Act of 2010. SBA welcomes comments and feedback on the 2023 Revised Methodology, which SBA intends to apply to the forthcoming third five-year review of size standards. The Notice is available here. Comments close February 9, 2024. The 2019 Revised Methodology is available here.
Government Accountability Office (GAO) Report: Federal Contracting: Opportunities Exist to Improve the Reporting of Waivers to Domestic Preference Laws
On December 7, GAO released a report outlining General Services Administration’s (GSA) actions to implement website requirements for waivers of Buy American and other domestic preference laws and GSA’s and the Office of Management and Budget’s (OMB) disagreement about website development. GAO is making nine recommendations, two to GSA and seven to OMB, including that they correct reporting errors, provide the capability to report on the remaining waiver type, add audit report results, address user needs, reach agreement on future website development, and identify metrics to gauge effectiveness. GSA agreed with the two recommendations. OMB generally disagreed or did not comment on the other seven. GAO continues to believe the recommendations are warranted. Read more here. The full report is available here.
Department of Defense (DOD) Proposed Rule Pending Regulatory Review: Transactions Other Than Contracts, Grants, or Cooperative Agreements for Prototype Projects
On December 6, the Office of Management and Budget (OMB) received the DOD’s Proposed Rule on Transactions Other Than Contracts, Grants, or Cooperative Agreements for Prototype Projects to reflect changes in 10 U.S.C. Section 4022 and its predecessor authorities. The proposed changes broaden use and revise procedures including providing authority for follow-on production OTs (Other Transactions) and contracts; special circumstances for award of OTs to small businesses, nontraditional defense contractors, nonprofit research institutions, and consortia; adding approval requirements for large dollar OTs; providing authority to supply prototypes and production items as government furnished items; and applying procurement ethics requirements to section 4022. The proposed rule is anticipated in February 2024. Read more here.
Congress Passes $886 Billion Defense Policy Bill, Biden to Sign Into Law, Reuters
On December 14, more than two-thirds of the U.S. House of Representatives voted in favor of a defense policy bill that includes a record $886 Billion in annual military spending and authorizes policies such as aid for Ukraine and push back against China in the Indo-Pacific. The House backed the National Defense Authorization Act, or NDAA, by 310 to 118, with strong support from Republicans and Democrats. It was more than the two-thirds majority required to pass the measure and send it to the White House for President Joe Biden to sign into law. Read more here.
Public Information and Communication Services III (PICS III), Total Small Business Set Aside, RFP
The National Institutes of Health (NIH), Office of Logistics and Acquisition Operations (OLAO), recently released the solicitation for PICS III, a $1.6 Billion small business set-aside Indefinite Delivery, Indefinite Quantity (IDIQ) contract for acquiring a wide range of services for the NIH, the Department of Health and Human Services (HHS) Operating Divisions (OPDIVS). Through this procurement the contract vehicle offers Institutes and Centers at the NIH communications and outreach; graphic design; web database; materials development; distribution and exhibit support. Read more here.
Upcoming Government Contracts Presentations
WEBINAR: Unlocking the Secrets of Debriefings, Government Evaluation of Proposals and Protests, January 25, 2024, Katherine B. Burrows and Eric Valle. Read more here.
WEBINAR: Navigating the FAR/DFARS: The Most Confusing and Little-Known Clauses, January 31, 2024, Lauren Brier and Annie B. Hudgins. Read more here.
Department of Labor (DOL) Final Rule: Nondisplacement of Qualified Workers Under Service Contracts
On December 14, DOL published a Final Rule implementing President Biden’s Executive Order (EO) 14055, “Nondisplacement of Qualified Workers Under Service Contracts” (EO). The Final Rule reinstates the requirement for successor contractors on Service Contract Act contracts to offer positions to the employees of the predecessor contractor. President Trump had previously rescinded this requirement through Executive Order 13897. The Final Rule establishes standards and procedures for implementing and enforcing the nondisplacement protections of President Biden’s EO. The Final Rule is available here and will be effective February 12, 2024. The Rule will apply to solicitations issued on or after the effective date of the final regulations issued by the Federal Acquisition Regulatory Council. DOL’s press release is available here. DOL’s Frequently Asked Questions is available here.
DOL Sets OT’s Final Rule Date, But Classification Rule’s Late, Law360
On December 7, the Department of Labor stated in its regulatory agenda that it will issue in April 2024 the final rule titled “Defining and Delimiting the Exemptions for Executive, Administrative, Professional Outside Sales and Computer Employees.” The proposed rule raises the salary threshold employees would have to reach to be overtime-exempt under the Fair Labor Standards Act (FLSA). It would also set a new yearly salary threshold to about $55,000 for employees to be overtime-exempt under the FLSA, an increase of $19,000 from the current ceiling. Read more here (subscription required).
Upcoming Labor & Employment Presentations
PM WEBINAR: Successor Government Contractor Hiring Obligations Change: DOL’s Long Awaited Nondisplacement Rule Effective February 12, 2024, January 17, 2024, Nichole D. Atallah and Sarah L. Nash. Read more here.
Department of Health and Human Services (HHS) News Release: HHS Announces Next Steps in Ongoing Work to Enhance Cybersecurity for Health Care and Public Health Sectors
On December 6, HHS released a concept paper that outlines the Department’s cybersecurity strategy for the health care sector. The concept paper builds on the National Cybersecurity Strategy that President Biden released last year, focusing specifically on strengthening resilience for hospitals, patients, and communities threatened by cyber-attacks. The paper details four pillars for action, including publishing new voluntary health care-specific cybersecurity performance goals, working with Congress to develop supports and incentives for domestic hospitals to improve cybersecurity, and increasing accountability and coordination within the health care sector. Read more here.
General Services Administration (GSA) Notice of Federal Secure Cloud Advisory Committee (FSCAC) Meeting
On December 15, GSA will publish a Notice regarding a FSCAC meeting addressing FSCAC’s recommendations to the GSA Administrator, FedRAMP board, and other agencies about the adoption of cloud computing products and services. This meeting is a continuation of the FSCAC meeting series from October 19, 2023, through November 9, 2023. Committee members will review feedback from prior meetings and finalize their advice and recommendations to the GSA Administrator. The FSCAC will also provide their recommendations on their priority initiatives. The meeting will be held on January 18, 2024, at 1pm to 3:30pm ET via webcast and will be open to the public. Public comments will close January 10, 2024. Registration for the meeting is available until January 15, 2024, at 5pm ET. The unpublished Notice is available here. Additional information about the meeting is available here.
Upcoming Cybersecurity & Data Privacy Presentations
PM WEBINAR: Protecting Our Nation’s Data: Cybersecurity Compliance for Government Contractors, January 4, 2024, Isaias “Cy” Alba, IV and Daniel Figuenick, III. Read more here.