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H.R. 357, Ensuring Accountability in Agency Rulemaking Act, Passed House
On December 12, the House passed legislation requiring the vast majority of rules issued by federal agencies to be signed and issued by a Senate-confirmed agency head and that the “initiation” of rulemaking or a regulatory agenda must be done “by a senior appointee.” Read more here.
General Services Administration (GSA) Memorandum for Civilian Agencies: Civilian Agency Acquisition Council Consultation to Issue a Class Deviation from the Federal Acquisition Regulation (FAR) Regarding Certification of Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns
On December 13, GSA issued a memorandum to civilian agencies, effective January 1, 2024. This memorandum states that, to be eligible for an SDVOSB set-aside or sole source award, businesses must (1) be certified by SBA as an SDVOSB concern or (2) have both represented that it is an SDVOSB concern and have submitted a complete application for SDVOSB certification to SBA on or before December 31, 2023. The memorandum emphasizes that SDVOSBs that are neither certified by SBA, nor have a pending application for certification with SBA on or before December 31, 2023, will not be eligible to receive set-aside or sole-source awards under the SDVOSB Program. The full memorandum is available here.
Department of Defense (DOD) Memorandum Regarding Class Deviation—The Service-Disabled Veteran-Owned Small Business (SDVOSB) Program
On December 8, the DOD issued a memorandum to be effective January 1, 2024, regarding an offeror’s eligibility for set-aside or sole-source award as an SDVOSB. This class deviation should be used in lieu of Federal Acquisition Relation (FAR) 19.1403(a)-(c), 19.1405(b), 19.1406, and 19.307. This class deviation updates and supersedes preaward procedures, solicitation provisions and contract clauses, and protest procedures in the FAR. Read more here. Attachments are available here.
Government Accountability Office (GAO) Report: Small Business Contracting: SBA Could Improve Oversight of Individual Waiver Requests to the Nonmanufacturer Rule
On December 14, GAO released a report detailing and reviewing data from the Small Business Administration (SBA) about waiver of small manufacturer requirements in procurement, which GAO notes are incomplete. The report examined (1) the number of individual waiver requests and their effect on small businesses and (2) SBA’s policies and procedures for reviewing individual waiver requests. GAO recommended that SBA develop policies and procedures to (1) review the accuracy of entries in its nonmanufacturer rule electronic waiver log and (2) inform how management should review proposed waiver decisions. SBA concurred with both recommendations. Read more here. The full report is available here.
How Federal Contracting Looks to Women-Owned Businesses, Federal News Network
A group of 15 trade organizations recently surveyed small, women and minority-owned businesses, in part to measure their participation and readiness to compete for federal contracts. A particular focus was put on the funding coming from the Chips and Science Act and the bipartisan infrastructure bill. Listen to the Podcast 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.
Successor Government Contractor Hiring Obligations Change: DOL’s Long Awaited Nondisplacement Rule Effective February 12, 2024, PilieroMazza Client Alert, Nichole D. Atallah, Sarah L. Nash, Kirby Rousseau
On December 14, 2023, the Department of Labor’s (DOL) Wage and Hour Division (WHD) published its long-awaited Final Rule, “Nondisplacement of Qualified Workers Under Service Contracts.” The rule defines service contractors’ latest obligations to offer certain incumbent employees a right of first refusal and implements the Biden Administration’s Executive Order (EO) 14055, which PilieroMazza previously wrote about here. While previous iterations of the Service Contract Act’s (SCA) nondisplacement obligations may have been implemented, the Final Rule includes a number of heightened obligations and responsibilities for government service contractors, as well as severe penalties for non-compliance. Solicitations issued on or after February 12, 2024, are subject to the Final Rule. This client alert highlights important aspects of the Final Rule. Also, please visit this link to register for our webinar on January 17, 2024, which delves into critical implications for prime and subcontractors. Read more here.
Supreme Court Vacates Ruling Restricting President’s Right to Issue Federal Workforce Mandates
On December 11, the Supreme Court ended the case against President Biden’s COVID-19 vaccine mandate for federal employees, issuing a summary judgment instructing a lower court to dismiss the case as no longer relevant. Read more here.
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.
National Security Agency (NSA) Press Release: NSA Releases Recommendations to Mitigate Software Supply Chain Risks
In response to an increase in cyberattacks to supply chains over the past five years, including targeted attacks of software supply chains, the National Security Agency (NSA) is releasing the Cybersecurity Information Sheet (CSI), “Recommendations for Software Bill of Materials (SBOM) Management.” This CSI provides network owners and operators with guidance for incorporating SBOM use to help protect the cybersecurity supply chain, with a focus on and some additional guidance for National Security Systems (NSS). Read more here. The CSI is available here.
Government Accountability Office (GAO) Report: National Institute of Standards and Technology (NIST): Strengthening Disclosure Requirements and Assessing Training Could Improve Research Security
On December 14, GAO released a report noting that NIST does not evaluate whether staff training on security policies and practices is effective, nor does it require domestic researchers to disclose as much information as foreign nationals. The report examined NIST’s efforts to (1) meet federal disclosure requirements for researchers, (2) collect and review disclosures from foreign national associates and domestic associates, and (3) align its security training with selected leading training practices. GAO reviewed NIST’s information and available data on identified risks, research security policies, and procedures, and interviewed agency officials. GAO also compared NIST’s policies and practices against selected federal requirements and leading practices on training. GAO made three recommendations: (1) for the Office of Science and Technology Policy (OSTP) to issue research security guidance and (2) for NIST to strengthen disclosure requirements for domestic associates and evaluating its training program. OSTP and NIST agreed with the recommendations. Read more here. The full report is available here.
Feds Look to Partner with States to Enforce Data Privacy Laws, Cyber Breaches, Route Fifty
As cybersecurity threats grow and evolve, the Federal Communications Commission recently announced on December 6 that it would partner with four states to step up efforts to protect consumer privacy by holding bad actors accountable. Read more here.
Neuberger: White House Cyber Trust Mark on Track for 2024 Release, MeriTalk
On December 7, a White House official said the administration’s “U.S. Cyber Trust Mark” program is on track to be released by the end of 2024. The program will label cyber-secure smart devices with a shield logo and help Americans more easily choose devices that are less vulnerable to cyberattacks. Read more 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.