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SBA’s New Lending Rules Improve Small Business Growth Opportunities, 05.01.23, Cy Alba and Ustina Ibrahim
On April 12, 2023, the U.S. Small Business Administration (SBA) published two new rules: (1) Small Business Lending Company (SBLC) Moratorium Rescission and Removal of the Requirement for a Loan Authorization (Moratorium Rule) and (2) Affiliation and Lending Criteria for the SBA Business Loan Programs (Affiliation Rule), collectively, the Rules. The Rules focus on combating persistent gaps in access to capital affecting small business owners in underserved communities. Starting May 11, 2023, small businesses and entrepreneurs will have more opportunities to obtain capital for growth and development. Read more here.
Federal Acquisition Regulation: Removal of FAR Subpart 8.5, Acquisition of Helium
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement the statutory expiration of the Federal Helium System in accordance with the Helium Stewardship Act of 2013. The document is available here.
Federal Acquisition Regulation: Exemption of Certain Contracts From the Periodic Inflation Adjustments to the Acquisition-Related Thresholds
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act for Fiscal Year 2022 that provides a statutory exception to the periodic inflation adjustments of acquisition-related thresholds for certain bond requirements. The document is available here.
Ownership and Control and Contractual Assistance Requirements for the 8(a) Business Development Program
This final rule makes several changes to the ownership and control requirements for the 8(a) Business Development (BD) program, including recognizing a process for allowing a change of ownership for a former Participant that is still performing one or more 8(a) contracts and permitting an individual to own an applicant or Participant where the individual can demonstrate that financial obligations have been settled and discharged by the Federal Government. The rule also makes several changes relating to 8(a) contracts, including clarifying that a contracting officer cannot limit an 8(a) competition to Participants having more than one certification and clarifying the rules pertaining to issuing sole source 8(a) orders under an 8(a) multiple award contract. The rule also makes several other revisions to incorporate changes to SBA’s other government contracting programs, including changes to implement a statutory amendment from the National Defense Authorization Act for Fiscal Year 2022, to include blanket purchase agreements in the list of contracting vehicles that are covered by the definitions of consolidation and bundling, and to more clearly specify the requirements relating to waivers of the nonmanufacturer rule. The final rule is available here.
Defense Federal Acquisition Regulation Supplement: Consolidation of DoD Government Property Clauses (DFARS Case 2020-D029)
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to consolidate existing contract clauses for the management and reporting of Government property into a single contract clause, to replace references to legacy software applications used for reporting Government property within the DoD enterprise-wide eBusiness platform, and to convert existing form-based processes into electronic processes within that platform. The proposed rule is available here. Comments are due June 26, 2023.
Defense Federal Acquisition Regulation Supplement: Transfer and Adoption of Military Animals (DFARS Case 2020-D021)
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2020. The proposed rule is available here. Comments are due June 26, 2023.
Defense Federal Acquisition Regulation Supplement: Restriction on Certain Metal Products (DFARS Case 2021-D015)
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2021 that provides restrictions on the acquisition of certain covered materials from North Korea, the People’s Republic of China, Russia, and Iran. The proposed rule is available here. Comments are due June 26, 2023.
Small Business Administration, Office of Inspector General: SBA’s Controls Over Cash Contributions and Gifts, Fiscal Years 2023 and 2022
This report presents the results of our evaluation of the U.S. Small Business Administration’s (SBA) handling of cash contributions and gifts. The objective of the evaluation was to determine the adequacy of SBA controls over the solicitation, acceptance, holding, and use of cash contributions and gifts. To meet our objective, we reviewed various management and financial records, applicable laws, regulations, policies, and SBA documents such as financial management system reports and accounting records. We found SBA complied with the Consolidated Appropriations Acts, 2023 and 2022, and SBA regulations and policies regarding soliciting and accepting cash contributions for National Small Business Week 2023 (Business Week). SBA’s Office of Communications & Public Liaison obtained proper approval from the Office of General Counsel for the Business Week cosponsored activity. SBA certified the 10 entities that cosponsored Business Week were vetted through the program offices to ensure no business relationship existed that would cause a conflict of interest. Additional information is available here. The full SBA OIG report is available here.
Operational Contract Support (OCS) Outside the United States
The DoD is updating the policies and procedures for operational contract support (OCS) outside the United States. These changes include broadening the range of applicable operational scenarios, eliminating content internal to the Department designating contractor personnel as part of the DoD total force, incorporating requirements for accountability and reporting, and clarifying responsibilities. With these updates, the Department addresses open recommendations from the Government Accountability Office (GAO). The final rule is available here and will be effective May 31, 2023.
Court of Federal Claims: SH Synergy, LLC (SHS) and VCH Partners, LLC v. U. S., Nos. 22-cv-1466, 22-cv-1468, April 28, 2023.
This is a pre-award GWAC bid protest for the Polaris Program wherein the Court granted in part and denied in part Plaintiffs’ Motions for Judgment on the Administrative Record (MJAR) and granted in part and denied in part Defendant’s Cross-MJAR and enjoined the agency from evaluating proposals and awarding IDIQ contracts under the current versions of the SB, WOSB, and SDVOSB Pool Solicitations. The Court further held that, should the agency opt to proceed with the procurement, it must amend the SB, WOSB, and SDVOSB Pool Solicitations, and evaluate proposals submitted under those Solicitations, consistent with and in compliance with the Court’s Memorandum and Order. The Court’s decision is available here.
The U.S. could run out of cash to pay its bills by June 1, Yellen warns Congress
Treasury Secretary Janet Yellen warned lawmakers Monday that the federal government could run short of money to pay its bills as early as June 1 unless the debt ceiling is raised soon. Yellen acknowledged the date is subject to change and could be weeks later than projected, given that forecasting government cash flows is difficult. But based on April tax receipts and current spending levels, she predicted the government could run short of cash by early June. “Given the current projections, it is imperative that Congress act as soon as possible to increase or suspend the debt limit in a way that provides longer-term certainty that the government will continue to make its payments,” Yellen wrote in a letter to House Speaker Kevin McCarthy, R-Calif. The warning provides a more urgent timetable for what has been a slow-motion political showdown in Washington. Read more here.
Another six-month extension for CIO-SP3
The National Institutes of Health has added another six months of runway to the CIO-SP3 IT solutions contract to head off any gap between that third version of the vehicle and version four, which remains mired in bid protests. A total of 119 bid protests remain active at the Government Accountability Office and as long as they are unresolved, NIH’s IT Acquisition and Assessment Center cannot make awards on the $50 billion IT vehicle. With the extension, agencies can place orders against CIO-SP3 through Oct. 29. That means task orders can continue to deliver services into the start of government fiscal year 2029. Read more here.
Pentagon Awards $7.8 Billion F-35 Contract to Lockheed Martin
The U.S. Department of Defense said on Friday it has awarded a $7.8 billion contract modification for 126 F-35 multi-role aircraft to weapons manufacturer Lockheed Martin Corp. The modification exercises options for the production and delivery of 126 Lot 17 F-35 aircraft, to include 81 F-35A aircraft for U.S. Air Force and its allies. The order for Pentagon’s most expensive weapons system, expected to be completed in August 2026, also includes 15 F-35B aircraft for the U.S. Marine Corps and 13 F-35C for the U.S. Navy. Last year, the U.S. Department of Defense agreed with Lockheed Martin to build about 375 F-35 fighter jets over three years in a deal worth $30 billion. Read more here.
Upcoming Government Contracts Presentations
WEBINAR: Mergers & Acquisitions in Government Contracting: Novations and Recertification, May 9, Sam Finnerty and Abby Baker. Read more here.
WEBINAR: Cybersecurity for Government Contractors: Success Through Compliance Readiness, May 9, Kevin Barnett and Daniel Figuenick. Read more here.
WEBINAR: Joint Venture and Mentor-Protege Bidding Strategies, May 11, Peter Ford and Meghan Leemon. Read more here.
WEBINAR: Unlocking the Secrets of Debriefings, Gov’t Evaluation of Proposals and Protests, May 16, Katherine Burrows and Eric Valle. Read more here.
WEBINAR: Construction Roundtable: Top 4 Legal Risks for Federal Construction Contractors, May 17, Jessica duHoffmann and Nichole Atallah. Read more here.
WEBINAR: Partnering to Win: Teaming, Subcontracting, Joint Ventures, and Mentor-Protégé Agreements, May 23, Sam Finnerty and Meghan Leemon. Read more here.
5 Tips to Protect Construction Contracts During An Economic Downturn, 04.25.23, Jessica duHoffmann and Annie Hudgins
For two consecutive quarters, the U.S. economy experienced an economic decline—typical indicators of an impending recession. Despite what the numbers may indicate, it is still unclear what direction the U.S. economy may take. Whether a recession is already here or on the way, here are five tips to help protect your construction contracts—particularly payments for your work. Read more here.
Upcoming Construction Presentations
WEBINAR: Construction Roundtable: Top 4 Legal Risks for Federal Construction Contractors, May 17, Jessica duHoffmann and Nichole Atallah. Read more here.
DOL and Federal Technology Solutions Contractor Reach Agreement to Resolve Alleged Hiring Discrimination
The Department of Labor has reached a settlement agreement with a technology solutions provider to resolve alleged systemic hiring discrimination against Black applicants at the company’s Reston headquarters. Intelligent Waves LLC will pay $435K in back pay and interest to affected applicants. Read more here.
Top Federal Contractors Dodge Labor Agency’s Diversity Data Drop
The vast majority of companies that accept the most taxpayer dollars opposed the public release of past employee diversity statistics, and those that did reveal those numbers only marginally increased executive diversity. Read more here.
US Department of Labor offers webinar on employers’ obligations, workers’ rights to help reduce high rate of violations in home care industry
PHILADELPHIA −The U.S. Department of Labor will host a webinar for home care workers, industry employers and other stakeholders about workers’ rights under the Fair Labor Standards Act. The full DOL news release can be found here.
Upcoming Labor & Employment Presentations
WEBINAR: Workplace Policies for Federal Contractors, May 11, Nichole Atallah. Read more here.
WEBINAR: Construction Roundtable: Top 4 Legal Risks for Federal Construction Contractors, May 17, Jessica duHoffmann and Nichole Atallah. Read more here.
LITIGATION & DISPUTE RESOLUTION
Former Contracting Officer for the Department of Defense Pleads Guilty in Conspiracy to Defraud the Government
Defendant took numerous government-funded trips, including 31 trips to Orlando. An Uxbridge man pleaded guilty today in federal court in Boston to his role in a conspiracy to defraud the government of thousands of dollars from 2014 to 2018. The full DOJ press release can be found here.
L3 Technologies Settles False Claims Act Allegations Relating to Double-Charging for Certain Material Costs
L3 Technologies, Inc., Communication Systems West, a Utah-based manufacturer of communications equipment for military systems, has agreed to pay $21.8 million to resolve allegations that it violated the False Claims Act by knowingly submitting and causing the submission of false claims to the Department of Defense by including in contract proposals the cost of certain parts twice, the Department of Justice announced today. Read more here.