Weekly Update for Government Contractors and Commercial Businesses – July 29, 2022

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GOVERNMENT CONTRACTS

House Approves More Than $400 billion of Government Funding in ‘Minibus’ Package
The House passed a sprawling spending package for the coming fiscal year, approving more than $400 billion in government spending ahead of the August recess. The so-called “minibus” package contains six spending bills providing fiscal 2023 funding for various agencies, including the departments of Housing and Urban Development, Transportation, Agriculture, Energy, and Veterans Affairs as well as the Food and Drug Administration. The House still has six remaining annual spending bills that leaders hope to bring to the floor later this month, but the timing on when remains unclear. Read more here. Additional reporting from Federal News Network is available here.

Past Performance Ratings for Small Business Joint Venture Members and Small Business First-Tier Subcontractors
The Small Business Administration published a final rule amending its regulations to implement new provisions of the National Defense Authorization Act (NDAA) Fiscal Year (FY) 2021. The final rule provides new methods for small business government contractors to obtain past performance ratings to be used with offers on prime contracts with the Federal Government. A small business contractor may use a past performance rating for work performed as a member of a joint venture or for work performed as a first-tier subcontractor. This final rule updates the requirements for small business subcontracting plans to add a requirement for prime contractors to provide past performance to a first-tier, small business subcontractor when requested by the small business. The rule is effective August 22, 2022. Read more here.

Disadvantaged Business Enterprise and Airport Concession Disadvantaged Business Enterprise Program Implementation Modifications
The Department of Transportation has proposed to strengthen implementation of its Disadvantaged Business Enterprise (DBE) and Airport Concession Disadvantaged Business Enterprise (ACDBE) Program regulations. The proposed rule would update personal net worth and program size thresholds for inflation; modernize rules for counting of material suppliers; incorporate procedural flexibilities enacted during the coronavirus (COVID-19) pandemic; add new program elements to foster greater usage of DBEs and ACDBEs with concurrent, proactive monitoring and oversight; update certification provisions with less prescriptive rules that give certifiers flexibility when determining eligibility; and make technical corrections that have led to substantive misinterpretations of the rules by recipients, program applicants, and participants. Comments are due September 19, 2022. Read more here.

FAS to Expand TDR Rule Despite Persistent Data Issues, OIG Says
The General Services Administration Office of Inspector General issued an alert memorandum detailing that the Federal Acquisition Service (FAS) is planning to expand its Transactional Data Reporting Rule to the entire Multiple Award Schedules (MAS) Program by November 2022. FAS’ plan to do so comes despite ongoing issues with data quality and access issues placing agencies at risk of overpaying for products and services when utilizing FAS’ MAS contracts. Read more here.

OASIS+ Program Update – Additional Domain Qualification Matrices and Q&A
The General Services Administration Office of Professional Services and Human Capital shared the sixth in a series of program updates relevant to a future draft Request for Proposal for OASIS+. The program update includes a draft domain qualification matrix and updated Q&A with responses to industry questions about Sections L and M for the Total Small Business set-aside that will be solicited. Read more here.

Understanding NIST’s Post-Quantum Encryption Standardization and Next Steps for Federal CISOs
In a recent National Security Memo (NSM-10), the White House acknowledged the need for immediacy in addressing the threat of quantum computers to our current cryptographic systems and mandated agencies to comply with its initial plans to prepare. This is the first directive that mandates specific actions for agencies as they begin a very long and complex migration to quantum-resistant cryptography. Read more here.

NIST Revises Cybersecurity Guidelines Specifically for HIPAA
The National Institute of Standards and Technology updated its guidance on how healthcare organizations and companies can protect their patients’ data security through new cybersecurity recommendations. The new cybersecurity draft resource guide specifically works to help agencies comply with the federal Health Insurance Portability and Accountability Act Security Rule that stipulates the need to protect sensitive health data. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Understanding the Impact of OFCCP Policy Changes on Federal Contractors, August 9, Sara Nasseri. 

WEBINAR: Identifying and Quantifying Government Contract Claims, August 17, Peter Ford. Read more here.

EVENT: GovCon Mergers and Acquisitions, August 31, Cy Alba. Read more here.

EVENT: How to File a Request for Equitable Adjustment or Claim on Your Contract, August 31, Jon Williams. Read more here.

LITIGATION & DISPUTE RESOLUTION

US May See $145 Million Recovery Boost After Fraud Law Change
The government could increase its recovery from False Claims Act (FCA) litigation by about $145 million over a 10-year period if pending pro-plaintiff legislation becomes law, according to estimates from the Congressional Budget Office (CBO). Introduced nearly a year ago, S. 2428, the False Claims Amendments Act of 2021, would amend the FCA—which imposes liability on companies that defraud the government—by stating that a suit may proceed even if the federal government has paid a claim despite having actual knowledge of fraud.

The CBO’s report estimates that within several years the Department of Justice would succeed in about three FCA cases each year that would not otherwise have been won. This would increase the government’s collection of damages and civil penalties by around $145 million over the 2022–2032 period after considering whistleblower shares. Read more here (subscription required).

Upcoming Litigation & Dispute Resolution Presentations

WEBINAR: Small Government Contractors and the FCA: Is More Enforcement on the Horizon? August 31, Jackie Unger and Matt Feinberg. Read more here.