Weekly Update for Government Contractors and Commercial Businesses – October 19, 2022

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GOVERNMENT CONTRACTS

Overcoming the Inflation Crisis: The Ins-and-Outs of Extraordinary Contractual Relief for Government Contractors, 10.13.22, Kevin Barnett and Lauren Brier
An all-but-forgotten remedy in government contracting, Extraordinary Contractual Relief (ECR), is in the midst of a potential resurgence due to the Department of Defense’s (DOD) most recent memorandum on inflation entitled Managing the Effects of Inflation with Existing Contracts. As PilieroMazza previously discussed, the current inflation crisis prompted DOD to suggest that, subject to the availability of funds, contractors should look to ECR when seeking an upward adjustment to the price of an existing firm-fixed-price contract. If you are a government contractor impacted by inflation while performing a contract, this client alert covers the ins‑and‑outs of ECR, including how to properly request it. Read more here.

Biden Administration Expands Use of Procurement to Encourage Environmentally Friendly Purchasing
The Biden Administration is expanding governmentwide efforts to use federal procurement to drive environmentally friendly purchasing. The White House said five new initiatives will build on existing efforts to catalyze markets and drive innovation across the country. These new programs include the Transportation Department’s agencywide Buy Clean policy and Embodied Carbon Work Group. This effort aims to jumpstart better data and reporting, better procurement and purchasing policies, and better education and research to ensure the use of sustainable materials across its programs. Another initiative will launch pilot programs to advance federal procurement of clean construction materials that have fewer greenhouse gas emissions associated with their manufacturing, transportation, installation, maintenance, and disposal. Read more here.

A New Law Will Make It Easier for Small Businesses to Navigate ‘the Seemingly Never-Ending Web of Bureaucratic Red Tape’
President Biden signed the “One Stop Shop for Small Business Compliance Act,” mandating the creation of a centralized information hub for small businesses. The bill requires the Small Business Administration’s Office of the National Ombudsman to create the website within the next six months. The site will include small business compliance guides for certain regulations, as well as contact information for the relevant agency personnel to provide further guidance. Read more here.

SBA Announces Over $4 million in New Funding to Expand Veterans Business Owner Outreach in Advance of National Veterans Small Business Week 2022
The Small Business Administration announced a new funding opportunity for up to $400,000 to be awarded to up to 12 entities including private organizations, colleges and universities, private sector firms, nonprofit organizations and state, local, or tribal governmental agencies to provide critical training and counseling to aspiring and existing veteran small business owners as a Veterans Business Outreach Center. Read more here.

White House Prepare Security Controls for Commercial Software Acquisition
The White House released a fact sheet on new software requirements with the goal of using procurement powers to strengthen cybersecurity. The fact sheet comes as the Federal Acquisition Regulatory Council deliberates on how to implement the standards for third party software outlined by the National Institute of Standards and Technology’s standard Secure Software Development Framework. Read more here.

Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification
The Bureau of Industry and Security published a final rule regarding the implementation of additional export controls for certain advanced computing and semiconductor manufacturing items, with the goal of limiting Chinese entities from purchasing such high-end chips and limiting manufacturing in China. Read more here.

Army Plans New $1B Contract to Move Systems to Cloud
The Army is planning a new contract vehicle, the Enterprise Application Modernization and Migration, with the purpose of simplifying the contract process for cloud migration. The new vehicle has an expected net worth of $1 billion, and the Army expects to make awards by the end of June 2023. Read more here.

New National Security Strategy Returns Focus to Rules, Partnerships, and American Leadership
The Biden Administration recently released an unclassified version of its National Security Strategy. Arriving several months after the Department of Defense submitted its classified National Defense Strategy, the document echoes the Trump Administration’s 2017 version in its focus on great power competition and China in particular. But the new strategy’s emphasis on America’s place in the international rules-based order marks a return from the Trump Administration’s departure, and it also downgrades the Russian threat to “acute,” a step below China’s “pacing challenge.” Read more here.

The Army Is Creating a Zero-Trust Program Office
The Army is creating a zero-trust program office aimed at gaining better insight over the various efforts under the umbrella of the security architecture with the hopes of prioritizing better investment in associated technologies. That organization will not be an acquisition office, however, but more of an operational office sitting within Army Cyber Command. Read more here.

NIST Kicks Off CHIPS Act Programs with Requests for Public Input
The National Institute of Standards and Technology (NIST) is seeking public input on two programs authorized under the CHIPS Act, which are meant to help restore American leadership in semiconductor manufacturing as part of the Department of Commerce’s CHIPS for America initiative. The initiative includes two components: a financial incentive to encourage investment in U.S. semiconductor manufacturing and the creation of collaborative networks for research and innovation.

• The first request for information concerns the financial incentives program. It seeks public comment on the design and implementation of the program, along with information for identifying significant supply chain bottlenecks for fabrication facilities; measuring the effectiveness of efforts to fight cloning, counterfeiting, and relabeling of semiconductors; establishing taxpayer protections; and identifying investments that would be effective to promote inclusive growth. Responses are due by November 14, 2022. Additional information is available here.
• The second request seeks public input on the development of up to three Manufacturing USA institutes—a network of entities addressing manufacturing challenges—to improve American leadership in semiconductor manufacturing, via research, education, and workforce development. This program will be a public-private partnership examining technology, supply chain, education, and workforce development. NIST asked for comment on potential research focus areas like “artificial intelligence for chip design”; the structure and governance of the institutes; plans to drive investment from businesses, academic institutions, and other non-federal entities; and how to integrate research and development activities into educational programs to help develop the current and future workforce. Responses are due by November 28, 2022. Additional information is available here.

Read more here.

82 Agencies Sign MOUs to Gain More Time to Transition to EIS
The General Services Administration signed a memorandum of understanding with 82 agencies giving them until May 31, 2024, to finish their transition to the Enterprise Infrastructure Solutions vehicle for modernizing voice, video, and data services. The agencies can now continue using their current Networx, Washington Interagency Telecommunications, and other local service contracts through the continuity of services extension. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: DOD and GSA Inflation Update: Key Takeaways for Government Contractors, October 25, Kevin Barnett and Lauren Brier. Read more here.

EVENT: Updates on REAs and Claims, October 25, Katie Burrows. Read more here.

WEBINAR: Subcontracting Summit 2022: Administration, November 2, Cy Alba. Read more here.

EVENT: Realistic Steps Between Federal Partners: Winning Strategies for SDVOSB and HUBZone, November 3, Tony Franco. Read more here.

EVENT: Labor and Employment for Government Contractors, November 4, Nichole Atallah. Read more here.

WEBINAR: Small Government Contractors and the FCA: Is More Enforcement on the Horizon? November 8, Jackie Unger and Matt Feinberg. Read more here.

WEBINAR: 5 W’s of Bid Protests: The Who, What, When, Where, and Why, November 10, Katie Burrows and Eric Valle. Read more here.

EVENT: Expectations for Government Fiscal Year 2023: Small Business Expectations, November 16, Jon Williams. Read more here.

LABOR & EMPLOYMENT

NLRB Extends Time for Submitting Comments on Proposed Rule Concerning the Joint-Employer Standard
To allow sufficient time for parties to file initial comments, the National Labor Relations Board (NLRB) has extended the deadline for submitting comments on its proposed rule concerning the standard for determining joint-employer status under the National Labor Relations Act. Interested parties may now file comments on or before Wednesday, December 7, 2022. Comments replying to the comments submitted during the initial comment period must be received by the NLRB on or before Wednesday, December 21, 2022. Read more here.

Employee or Independent Contractor Classification Under the Fair Labor Standards Act
The Department of Labor is proposing to modify Wage and Hour Division regulations to revise its analysis for determining employee or independent contractor classification under the Fair Labor Standards Act (FLSA) to be more consistent with judicial precedent and the FLSA’s text and purpose. Comments on the proposed rule are due November 28, 2022. Read more here. Additional information is available here.

OMB-SFWTF Update Regarding EO14042 Injunction—Agency COVID-19 Guidance
The Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force released an update regarding Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which precedes the potential narrowing of the nationwide injunction. OMB and the Task Force are clarifying that they anticipate that at least three guidance documents will be issued following any narrowing of the nationwide injunction. Read more here.

Upcoming Labor & Employment Presentations

EVENT: Labor and Employment for Government Contractors, November 4, Nichole Atallah. Read more here.