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Discretionary Discussions: Federal Circuit Undercuts DFARS Presumption of Discussions and Maybe More, PilieroMazza Attorney Article, Eric Valle
PilieroMazza’s Eric Valle was a guest author for The Nash & Cibinic Report where he published the article “Discretionary Discussions: Federal Circuit Undercuts DFARS Presumption of Discussions and Maybe More.” This article is focused on one important aspect of the Oak Grove decision—the ability to protest an agency’s decision to forgo discussions in a high-value Department of Defense procurement—and the implications for the procurement system. Read more here.
Department of Health and Human Services (HHS) Interim Final Rule: Adoption of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
On October 2, HHS published an interim final rule and request for comments to streamline grants for awards to institutions of higher education, hospitals, nonprofits, commercial organizations, and state, local, and Tribal governments. Previously, HHS made many updates to its own requirements and principles that differed from the Office of Management and Budget (OMB). This rule will amend and make more uniform the requirements promulgated by OMB. The rule is available here and will be effective October 1, 2025. Amendatory Instruction 2, however, is effective as of October 1, 2024. Comments close at midnight on November 1, 2024.
Department of Health and Human Services (HHS) Proposed Rule: Acquisition Regulation
On October 3, HHS published a proposed rule amending the HHS Acquisition Regulation (HHSAR) which is intended to update and streamline regulation and align with the Federal Acquisition Regulation (FAR) more closely. The rule would also add coverage to implement unique requirements to HHS. The HHSAR will be updated to reflect organizational changes in HHS, incorporate recent statutory changes and government mandates, and to accomplish editorial revisions for clarification. The rule is available here. Comments close December 2, 2024.
White House Directs Agencies on Responsible AI Acquisition, Law360
The White House has issued guidance to agencies on responsible purchases of artificial intelligence, addressing issues such as mitigating associated privacy and performance risks, ensuring the market for AI remains competitive, and enabling related collaboration across the government. Read more here (subscription required).
Upcoming Government Contract Presentations
TRAINING: Past Performance: How to Use Yours, Benefit from Others’, and Defend It from Attacks, October 16, 2024, Katherine B. Burrows, Daniel Figuenick, III
TRAINING: Joint Venture and Mentor-Protege Bidding Strategies, October 17, 2024, Peter B. Ford, Meghan F. Leemon
TRAINING: Legal Considerations: How Best to Structure Your Company as a Federal Contractor, October 22, 2024, Isaias “Cy” Alba, IV
CONFERENCE: What’s New in GovCon? Important Legal Updates for Government Contractors, October 30, 2024, Isaias “Cy” Alba, IV
FALSE CLAIMS ACT / AUDITS & INVESTIGATIONS
Florida Federal Court Strikes Major Blow to FCA Whistleblowers: Key Takeaways for FCA Defendants, PilieroMazza Blog, Matthew E. Feinberg
In a prior blog, PilieroMazza discussed the Supreme Court’s decision in United States ex rel. Polansky v. Executive Health Resources, Inc. In that case, in his dissenting opinion, Justice Clarence Thomas referred to the qui tam provisions of the False Claims Act (FCA) as operating in “something of a constitutional twilight zone” and called into question whether relators have standing to pursue qui tam actions where the government declines to intervene in the litigation. Specifically, Justice Thomas opined that “Congress cannot authorize a private relator to wield executive authority to represent the United States’ interests in civil litigation.” Based on Justice Thomas’ opinion, which received some support from Justices Brett Kavanaugh and Amy Coney Barrett, PilieroMazza presumed that a case challenging the constitutionality of the qui tam provisions could be a “blockbuster in a future term.” A recent decision of the United States District Court for the Middle District of Florida pushes that issue to the forefront and offers defendants in FCA matters an additional defense to use when the government declines to intervene in litigation. Read more here.
Department of Labor (DOL) News Release: DOL Announces $6M in Grants to Expand Job Opportunities For Women in Apprenticeships, Nontraditional Occupations
On October 2, DOL announced the award of $6 million in funding to help recruit, train, and retain more women in quality pre-apprenticeship and Registered Apprenticeship programs and nontraditional occupations. The Women in Apprenticeship and Nontraditional Occupations grants will enable organizations in eight states and the District of Columbia to provide training programs in skilled building trades, advanced manufacturing, and information technology. Read more here.
Labor Department Sets 2025 Federal Contractor Minimum Wages, Government Executive
In a pair of filings in the Federal Register on September 30, Labor Department officials set the range of minimum wages for contractors between $9.30 per hour for tipped workers to $17.75 per hour, depending on the job type. Read more here.
Upcoming Labor & Employment Presentations
PM TRAINING: ABCs of the SCA: Critical Path Service Contract Act Training for Government Contractors, October 22, 23, and 24, 2024, Nichole D. Atallah, Sarah L. Nash
TRAINING: Labor Rules & Regulations: Federal Market Compliance, October 23, 2024, Nichole D. Atallah
FTC Withdraws from Feds’ Merger Review Labor Pact, Law360
The Federal Trade Commission is withdrawing from an agreement signed in August with the U.S. Department of Justice, the U.S. Department of Labor and the National Labor Relations Board that’s meant to increase collaboration when looking at labor issues in mergers. Read more here (subscription required).
Upcoming Mergers & Acquisitions Presentations
PM WEBINAR: Navigating M&A in the Manufacturing Industry: Strategies for Success, October 17, 2024, Isaias “Cy” Alba, IV
CORPORATE & ORGANIZATIONAL GOVERNANCE
Financial Crimes Enforcement Network (FinCEN) Update to Beneficial Ownership Information (BOI) Frequently Asked Questions (FAQs)
On October 3, FinCEN updated its FAQs for BOI. Updates to the FAQs include the items listed below. View the complete list of FAQs here.
- State, local, and Tribal law enforcement can only access the BOI database with court approval; foreign law enforcement agencies, judges, prosecutors, or authorities may only access BOI on request; financial institutions may access BOI under customer due diligence requirements; and federal regulatory agencies may access BOI on request.
- BOI is exempt from FOIA disclosure.
- Enrolled agents may submit BOI for reporting companies.
- Anyone submitting a BOI report must certify as to the truth, completion, and correctness of the report.
- FinCEN does not prohibit anyone authorized by the reporting company to submit a BOI report on behalf of the company; however, FinCEN notes that individuals should refer to state requirements that define the unauthorized practice of law.
- Step-by-step instructions and screenshots regarding how to add multiple beneficial owners to BOI report.
- Provides a definition of “similar office” as it relates to a secretary of state.
- Conversions of entities result in the requirement to submit an updated BOI report.
- Re-domestication following dissolution in one state of entities result in the requirement to submit an updated BOI report.
- Registration to do business in multiple states does not result in the requirement to submit an updated BOI report.
- There is no maximum number of beneficial owners a company may have.
- Reporting companies are expected to have at least one beneficial owner regardless of percent of ownership interest.
- Clarifications regarding identification documents that beneficial owners may submit.
- Clarifications regarding what may be submitted as a principal office.
- Reporting companies partially controlled by non-exempt entities need to submit a BOI report; however, subsidiaries who has multiple parent companies that qualify for differing exemptions can still qualify for the subsidiary exemption so long as all parent companies meet an exemption.
- An updated BOI report is not required when an individual updates their FinCEN identification number.
- Though not a requirement, third-party service providers should maintain records and documentation relevant to filing BOI reports and authorization for the same.
- Individuals only need one FinCEN identification number.