Publications, The Weekly Update 09.08.20

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GOVERNMENT CONTRACTS

Jackie Unger Elevated to Counsel in PilieroMazza’s Government Contracts Group, September 1, 2020
PilieroMazza is pleased to announce that Jackie Unger has been elevated to Counsel in the Firm’s Government Contracts Group effective September 1, 2020. The Group’s Practice Chair, Tony Franco, said: “Jackie is one of our most talented government contracts attorneys. She possesses a keen understanding of complex concepts and is adept at spotting very nuanced legal issues for our clients. Jackie is a key member of our team and well-deserving of this promotion.” [Read More]

SBA Releases Fiscal Year 2019 Procurement Scorecard
The Small Business Administration (SBA) released its Fiscal Year 2019 Small Business Federal Procurement Scorecard, which tracks, assesses, and grades each agency’s yearly and individually negotiated small business prime and subcontracting performance. Read more here.

Tony Franco Comments on SBA’s Procurement Scorecard for Law360, September 1, 2020
Tony Franco was recently quoted by Daniel Wilson for Law360 in the article “Small Biz Vendors Decline Despite New Federal Contract High.” [Read More]

Certain SBA Loan Review Decisions Under Paycheck Protection Program Appealable, August 26, 2020, Peter Ford and Meghan Leemon
Millions of small businesses applied for and received loans under the Paycheck Protection Program (PPP), which was a temporary program established under the CARES Act enacted by Congress to provide relief to America’s small businesses due to the devastating effects of COVID-19. But some businesses were denied loans and others are seeking forgiveness, only to find that they were deemed ineligible for full or partial forgiveness. A new rule may provide small businesses with options to appeal these decisions. [Read More]

When FAR Procurements Combine, Is a Debriefing Required? August 18, 2020, Lauren Brier
PilieroMazza attorneys are frequently contacted by government contractors soon after they learn that their proposal was not selected for award, with the contractor considering whether to file a bid protest. If the contractor wants to pursue its post-award protest before the Government Accountability Office, an important question that needs to be answered is whether a debriefing is required. Determining whether a debriefing is required is imperative to determining whether the contractor can rely on the debriefing date to start the protest clock. [Read More]

DOD Releases Guidance on Section 3610
The Department of Defense (DOD) released additional policies and guidance on the implementation of Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Section 3610 allows the government to reimburse contractors for certain leave paid to employees or subcontractors due to facility closures or other restrictions.

New DOD Guidance:

Successor-In-Interest Entities Now Eligible to Receive Phase III SBIR / STTR Awards
SBA issued a notice of technical amendment that amended the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs Policy Directive to clarify that successor-in-interest entities are eligible to receive phase III awards. Read more here.

SBA Announces New Reduced 504 Loan Debenture Rates
SBA announced updated interest rates for the 504 Loan Program offered by Certified Development Companies. The core mission of the 504 Loan Program is to provide long-term financing to small businesses for the purchase or improvement of land, buildings, and major equipment; to facilitate the creation or retention of jobs; and to support local economic development. 

FPDS Reports Will Officially Move to beta.SAM by Mid-October
Nextgov reported that, by October 17, 2020, federal vendors, contracting researchers and watchers, and any other interested party, will no longer be able to run or access contract award data reports through the Federal Procurement Data System (FPDS) at FPDS.gov. By that date, the General Services Administration (GSA) expects to have completed the full migration of FDPS’s reporting functions to the beta.SAM.gov website under the Data Bank page. Read more here.

Next Steps in Schedules Consolidation
The Coalition for Government Procurement reported that this month marked a major milestone for the Federal Supply Schedule (FSS) program as GSA and FSS contractors entered the third and final phase of schedules consolidation. Phase 3 will focus on those schedule contractors with multiple contracts. Phase 1 saw the creation of a single schedule solicitation; reconciliation of clauses, terms and conditions; the reduction / elimination of duplicative Special Item Numbers; the issuance of the new, single solicitation for new offers; and closure of the old solicitations. Phase 2 saw the issuance of and acceptance of a mass modification updating current FSS contracts with the consolidated terms and conditions. Read more here.

10 Questions to Ask for a Successful Government Contracts Novation, August 10, 2020, Timothy Valley
Government contractor acquisitions present unique regulatory hurdles, and one major challenge is the preparation, submission, and execution of a novation package with the U.S. government. While preparation of the novation package itself is a hurdle for some firms, there are additional factors that impact its success. Below are ten questions government contractors should ask, which can spell the difference between a successful and unsuccessful novation. [Read More]

Upcoming Government Contracts Presentations

WEBINAR: Succeeding in Government Small Business Contracting Series 2020: Set-Aside Program, September 15, 2020, Cy Alba. [Read More]

WEBINAR: Exiting From the Valley of the Shadow of Death: Successful Growth Strategies for Small Businesses Moving to the Mid-Tier, September 16, 2020, Cy Alba. [Read More]

WEBINAR: PCI Subcontracting Summit 2020: Subcontract Pricing, September 22, 2020, Cy Alba. [Read More]

WEBINAR: Impact and Potential Pitfalls of CARES Act / 3610 and PPP Flexibility Act on Government Contractors, September 23, 2020, Cy Alba. [Read More]

WEBINAR: Maximizing Your Time as a Small Business, September 23, 2020, Jon Williams. [Read More]

CYBERSECURITY & DATA PRIVACY

FAR Council Issues New Interim Rule on Section 889 Prohibitions on Using Chinese Telecommunications and Video Surveillance Equipment, August 27, 2020, Cy Alba
If you have not viewed PilieroMazza’s prior client alert and webinar on the implications of the new prohibition on the use of certain Chinese telecommunications and video surveillance equipment, we highly recommend you do so before reading this article as it will provide helpful background and information which we will not rehash in this article. You can find that content here and here, respectively. [Read More]

DOD Receives Section 889 Waiver from Director of National Intelligence, August 17, 2020, Cy Alba and Anna Wright
On August 12, 2020, Director of National Intelligence John Ratcliffe issued a memorandum to DOD that waives the applicability of Section 889 of the National Defense Authorization Act (NDAA) for Fiscal Year 2019 as applied to DOD. Section 889 prohibits agencies from procuring telecommunications equipment and services from Huawei Technologies Company, Hangzhou Hikvision Digital Technology Company, Hytera Communications Company, Dahua Technology Company, and ZTE Corporation. DOD originally released a memorandum on July 23, 2020, to begin implementing Section 889, which was set to take effect on August 13, 2020, by law, but Director Ratcliffe’s memorandum delays its implementation. His waiver allows DOD contractors to continue using banned Chinese telecommunications equipment until September 30, 2020. [Read More]

Pentagon Acquisition Chief Clarifies Temporary Extension for Implementing Chinese Equipment Ban
Nextgov reported that the Defense Under Secretary for Acquisition and Sustainment Ellen Lord confirmed that the Director of National Intelligence provided a waiver to the Pentagon extending the deadline for government contractors to comply with a new supply chain rule implementing Section 889 of the 2019 NDAA. Lord also said DOD would not seek further waivers for the rule at this time. Read more here.

CCPA Regulations Approved
On August 14, 2020, the Office of Administrative Law approved the Department of Justice’s regulations regarding the California Consumer Privacy Act (CCPA) and filed them with the Secretary of State. The regulations went into effect immediately. CCPA grants California consumers robust data privacy rights and control over their personal information. Read more here.

DOD’s IT Supply Chain Has Dozens of Suppliers from China, Report Finds
Fedscoop reported that a report from data analytics firm Govini shows that DOD’s IT supply chain has dozens of Chinese companies in it. It is unclear how much work, products, or services come from these companies and in what way, but it still is a significant risk, according to Govini’s CEO. Read more here.

Upcoming Cybersecurity & Data Privacy Presentations

CMMC Is Coming – Are You Ready? Specific Implications for Native American Contractors, September 15, 2020, Jon Williams. [Read More]

MERGERS & ACQUISITIONS / CORPORATE & ORGANIZATIONAL GOVERNANCE

10 Questions to Ask for a Successful Government Contracts Novation, August 10, 2020, Timothy Valley
Government contractor acquisitions present unique regulatory hurdles, and one major challenge is the preparation, submission, and execution of a novation package with the U.S. government. While preparation of the novation package itself is a hurdle for some firms, there are additional factors that impact its success. Below are ten questions government contractors should ask, which can spell the difference between a successful and unsuccessful novation. [Read More]

Stockholders and Board Directors: Overview of COVID-Related Changes to Title 8 of Delaware General Corporation Law, August 10, 2020, Laura Sims
On July 16, 2020, Governor John Carney of Delaware signed into law House Bill 341 to amend Title 8 of the Delaware General Corporation Law which, among other things, (1) solidifies a pandemic as an emergency situation, (2) expands the special powers of stockholders and directors during such emergency conditions, and (3) allows for the option to use electronic transmission documentation and electronic signatures for the execution of documents (previously limited to hardcopy and manual execution only). [Read More]

Upcoming Business & Transactions Presentations

WEBINAR: Equity Incentive Programs: Strategies for Employee Retention and Strategic Growth, September 15, 2020, David Shafer. [Read More]

WEBINAR: Mergers and Acquisitions in Healthcare: Getting Your House in Order, November 4, 2020, Kathryn Hickey. [Read More]

LABOR & EMPLOYMENT

DOL Recovers Nearly $2.4 Million After Investigation Finds Federal Contractors Violated Labor Laws
The Department of Labor (DOL) reported that, after an investigation by its Wage and Hour Division, two California-based contractors for Customs and Border Protection will pay nearly $2.4 million to 959 employees for violations of the McNamara-O’Hara Service Contract Act and the Contract Work Hours and Safety Standards Act. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: 2020 OFFCP Refresh and Reset, September 17, 2020, Sara Nasseri. [Read More]

LITIGATION & DISPUTE RESOLUTION / LABOR & EMPLOYMENT

5 Tips for Employers Managing a Remote Workforce During COVID-19, August 25, 2020, Camilla Hundley and Sara Nasseri
The coronavirus pandemic forced many companies to transition to remote work environments with little, if any, notice. In the face of ongoing remote work, you should provide employees with clear guidance on expectations and obligations. For this reason, it is advisable to revisit your remote employment policies and agreements. The following is a list of best practices for employers managing a remote workforce. [Read More]