Weekly Update for Government Contractors and Commercial Businesses – February 10, 2021

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BUSINESS & TRANSACTIONS

Federal Trade Commission Updates HSR Thresholds, February 4, 2021, David Shafer
The Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR) requires that certain mergers, acquisitions, and joint ventures be cleared by the Federal Trade Commission and the Antitrust Division of the Department of Justice if they exceed certain valuation and monetary thresholds. If your transaction exceeds the HSR thresholds, and therefore requires antitrust scrutiny, this can materially alter the structure and timing of the proposed transaction. Read more here.

Defense Industry Could See Another Wave of Mergers and Acquisitions
National Defense Magazine reported that the defense industry could see further consolidation as contractors look to bolster their business portfolios and access to innovation through mergers and acquisitions. Read more here.

LABOR & EMPLOYMENT

Maryland Essential Workers’ Protection Act: How It May Impact Maryland Employers, February 5, 2021, Sara Nasseri
Although many employers have taken discretionary measures to protect essential employees, there are currently few mandated health and safety requirements at the federal or state level. On January 20, 2021, the Maryland General Assembly’s Senate and House of Delegates introduced the Maryland Essential Workers’ Protection Act. With the bill, Maryland is now considering joining the growing group of states that are imposing requirements on employers who employ essential workers or require employees to work on-site. If passed, it would require employers who employ “essential workers” to provide additional benefits and protections throughout the COVID-19 pandemic and during future emergencies. Read more here.

Rescission of Class Deviation—Combating Race and Sex Stereotyping
The Department of Defense (DOD) published a memorandum that rescinds Class Deviation 2021-O0001, Combating Race and Sex Stereotyping, and its Revision 1, which had been issued to implement the now revoked Executive Order 13950, “Combating Race and Sex Stereotyping.” The memorandum further instructs contracting officers to remove applicable clauses from contracts and solicitations. Read more here.

DOL Proposes to Delay Independent Contractor Rule
The Department of Labor (DOL) published a proposed delay of effective date, which would delay the effective date of its Independent Contractor Status Under the Fair Labor Standards Act final rule until May 7, 2021. The rule’s current effective date is March 8, 2021. DOL proposed this delay in accordance with the presidential directive from the January 20, 2021 memorandum entitled “Regulatory Freeze Pending Review.” Comments on the proposed delay are due February 24, 2021. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: Risk Prevention Strategies: Avoiding Costly FLSA Missteps, February 24, 2021, Nichole Atallah and Matt Feinberg. Read more here.

GOVERNMENT CONTRACTS

New Rule Implements Economic Aid Act Requirements for PPP
The Small Business Administration and Department of the Treasury published an interim final rule that implements changes related to the forgiveness and review of Paycheck Protection Program (PPP) loans. Specifically, the interim final rule consolidates prior rules related to forgiveness and reviews of PPP loans and incorporates changes made by the Economic Aid Act, including forgiveness requirements for second draw PPP loans. Except where otherwise specified in the Economic Aid Act, the interim final rule’s provisions became effective February 3, 2021. Read more here.

WOSB Certification Update
The Civilian Agency Acquisition Council issued a letter authorizing agencies to issue class deviations regarding the eligibility and certification of Women-Owned Small Businesses (WOSB). The class deviations would implement the Small Business Administration’s final rule published on May 11, 2020, which revised the eligibility of WOSB and Economically Disadvantaged Women-Owned Small Businesses (EDWOSB) under the WOSB Program and changed the source for status certifications of WOSBs and EDWOSBs. Read more here.

Updated Timeline for CIO-SP4 Solicitation Now Available
The National Institutes of Health announced that the request for proposals solicitation for CIO-SP4 will be posted in early March. The proposal submission date will be on or about April 30, 2021. Read more here.

DOD Procedures for Requesting DODAAC and COVID-19 Non-Medical PPE
The Department of Defense (DOD) published a memorandum that updates the procedures that contracting officers and small business contractors may use to request a DOD Activity Address Code (DODAAC). A DODAAC is necessary to use FedMall to acquire non-medical Personal Protective Equipment (PPE). Read more here.

GSA Pledges Funds to AbilityOne
The General Services Administration (GSA) released a memorandum pledging to commit 2% of contract spending for Fiscal Year 2021 to the AbilityOne Program. Read more here.

March 8th Transition to GSA FAS ID for eOffer and eMod
The General Services Administration (GSA) published an update for multiple award schedule contract holders specifying that, as of March 8, 2021, contractors will use FAS ID to access eOffer and eMod. Users without an established GSA FAS ID will need to register for an account starting on March 8, 2021. Additionally, contractors and offerors will not be able to access eOffer and eMod from March 6, 2021, through March 7, 2021, as GSA transitions to FAS ID. Read more here.

DHS Looks to Automate Electronic Invoicing
Fedscoop reported that the Department of Homeland Security (DHS) is seeking ways to automate electronic invoicing. DHS issued a sources sought synopsis, which states that the agency is looking for information technology support to aid its Financial Systems Modernization Joint Program Management Office in applying products that will receive electronic submissions and manage data. Read more here.

Final Rule and Formal Training on CMMC Could Come Out This Spring
Federal Computer Week reported that Diane Knight, the Department of Defense’s lead for the Cybersecurity Maturity Model Certification (CMMC) program’s pathfinders and pilots, said a final rule could be issued as soon as April, 2021. 

Fixed-Price-Incentive Contracts: DOD Has Increased Use but Should Assess Contributions to Outcomes
The Government Accountability Office (GAO) released a report on the Department of Defense’s (DOD) use of fixed-price-incentive contracts. GAO found that DOD’s use of these contracts accounted for about half of all DOD obligations for its major weapon systems in 2019, but DOD has not assessed whether using these contracts actually keeps costs and schedules in line. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: The 2021 Qui Tam Conference – Small Business and Grant Fraud Panel, February 18, 2021, Jon Williams. Read more here.

WEBINAR: May the Clause Be with You: FAR 52.203-16, Organizational and Personal Conflicts of Interest, February 23, 2021, Cy Alba. Read more here.

WEBINAR: May the Clause Be with You: Certification / Information Regarding Responsibility Matters, March 23, 2021, Cy Alba and Katherine Burrows. Read more here.