Weekly Update for Government Contractors and Commercial Businesses – September 23, 2022

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GOVERNMENT CONTRACTS

Enhancing the Security of the Software Supply Chain Through Secure Software Development Practices
The Office of Management and Budget published a memo to implement National Institute of Standards and Technology (NIST) guidance that seeks to enhance the security of the software supply chain in accordance with Executive Order 14028, Improving the Nation’s Cybersecurity. The memo requires agencies to comply with the NIST Secure Software Development Framework and the NIST Software Supply Chain Security Guidance, along with any subsequent updates to these documents. Among other directives, the memo requires agencies to obtain a self-attestation from software producers that they follow secure development practices and tasks before using their software. The Federal Acquisition Regulatory Council plans to propose a rulemaking on the use of a uniform standard self-attestation form. Read more here. A briefing on the memo is available here, and additional reporting is available here.

Class Deviation: System for Award Management
The Department of Defense (DOD) issued a class deviation to mitigate delays in System for Award Management (SAM) registrations currently being experienced by entities due to changes in the entity validation processes and a significant increase in entities requesting a unique entity identifier at SAM. Per the deviation, contracting officers may now award contracts when offerors prove that they “initiated or attempted to start the SAM registration process,” but still do not yet have an active SAM registration. Contractors may then remain unregistered for 30 days or until the date of their first invoice, whichever comes first. The deviation requires that the contracting officer take steps to ensure contract performance, including submitting the contractor’s ticket with SAM’s service desk to their agency’s SAM lead so that it is prioritized. The deviation is set to run through October 31, 2022. Read more here. Additional reporting is available here.

Supplement 1—Temporary Moratorium on Enforcement of Certain Limitations Contained in Certain GSA Economic Price Adjustment Contract Clauses
The General Services Administration (GSA) updated its guidance to further address delays in processing economic price adjustments (EPAs) in response to inflation. The update states that contracting officers do not need additional approvals to invoke the EPA clause in contracts “whether [the adjustment is] above or below the ceiling percentage established in the solicitation.” GSA’s guidance was initially released in March 2022 and was updated after concerns from industry over delays processing EPAs. The updated guidance extends the flexibilities through March 31, 2023. Additional reporting is available here.

Managing the Effects of Inflation with Existing Contracts
The Department of Defense (DOD) published a memo advising contracting officers about the range of approaches available to combat the effect of inflation on firm-fixed price contracts. According to the memo, the pricing of firm-fixed-price contracts is meant to reflect the risk of cost increases. However, relief may be provided under circumstances involving acute impacts on suppliers. Under extreme circumstances, adjustments can be sought for firm-fixed-price contracts as a response to economic conditions. The memo notes that under Public Law 85-804, as implemented by Part 50 of the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement, the Secretaries of Defense, Army, Navy, and Air Force have the authority to grant Extraordinary Contractual Relief. According to the memo, DOD will consider vendor requests for the application of these powers and continues to work to meet the DOD’s requirements as economic challenges continue. Read more here.

Bidders Have Details, RFPs on Multibillion-Dollar GSA Contracts
New information about the $60 billion OASIS+ contract from the General Services Administration (GSA) clarified evaluation and scoring details last week. GSA also announced final requests for proposal for HUBZone and service-disabled veteran-owned businesses planning bids on the agency’s $10 billion Polaris IT services vehicle. Read more here (subscription required).

Executive Order Implements Energy Provisions in Inflation Reduction Act
The President released an executive order entitled Implementation of the Energy and Infrastructure Provisions of the Inflation Reduction Act of 2022 (IRA). The IRA’s goals are “to accelerate United States global leadership in clean energy innovation, manufacturing, and deployment in a way that cuts consumer energy costs, creates well-paying union jobs and sustainable and equitable economic opportunity, advances environmental justice, and addresses the climate crisis.” The executive order issues a mandate to implement the IRA’s goals by prioritizing efficient investment of public dollars, advancing environmental and climate justice, investing in green energy for both infrastructure and jobs, reducing energy costs, accelerating innovation, and preparing communities for the effects of the changing climate. In addition, the order specifically sets the goal for the United States to reduce greenhouse gas emissions 50-52 percent below 2005 levels by 2030, create a carbon pollution-free electricity sector by 2035, and reach net-zero emissions by 2050 at the latest. Read more here.

New Federal Guidance Aims to Strengthen Indigenous Land Management
The Department of the Interior announced new guidance to help federal agencies strengthen collaboration with Indigenous Nations in the management of public lands, water, and wildlife. The new policy will support agreements designed to help tribes co-manage projects on public lands that make up 620 million acres divided among four major federal agencies. Read more here.

Upcoming Government Contracts Presentations

EVENT: Small Business Policy and Legal Update, October 6, Jon Williams. Read more here.

WEBINAR: Cybersecurity Compliance: Changing Requirements for Evolving Threats, October 14, Jon Williams. Read more here.

WEBINAR: Update on DOT’s DBE Program for Construction Contractors, October 19, Jackie Unger. Read more here.

WEBINAR: Administration, November 2, Cy Alba. 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.

LABOR & EMPLOYMENT

DOL Announces Changes to OSHA’s Severe Violator Enforcement Program to Strengthen Enforcement, Improve Compliance
To strengthen enforcement and improve compliance with workplace safety standards and reduce worker injuries and illnesses, the Department of Labor is expanding the criteria for placement in the Occupational Safety and Health Administration’s (OSHA) Severe Violator Enforcement Program. The new criteria include violations of all hazards and OSHA standards and will continue to focus on repeat offenders in all industries. Previously, an employer could be in the program for failing to meet a limited number of standards. The changes will broaden the program’s scope with the possibility that additional industries will fall within its parameters. Read more here.

DOL Proposes Revision to Form LM-10 to Require Employers To Disclose Federal Contractor, Subcontractor Status
The Department of Labor announced the publication of a proposed revision to its Office of Labor-Management Standards’ Form LM-10. The proposed revision would require certain employers who are already required to file Form LM-10s to report their status as a federal contractor or subcontractor. Specifically, the proposed revision would amend the forms to include a box for certain employers who engage in reportable persuader or surveillance transactions or agreements to indicate if they are a federal contractor or subcontractor. An employer under a federal contract or subcontract would then be required to provide their General Services Administration Unique Entity Identifier, if any, and provide information on the federal agencies for which they provide services. Read more here.

Upcoming Labor & Employment Presentations

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