News, Publications, The Weekly Update 12.16.21

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LABOR & EMPLOYMENT

Court Enjoins Vaccine Mandate Nationwide: The Practical Implications for Federal Contractors, December 8, 2021, Nichole Atallah, Sarah Nash, Sara Nasseri, and Matthew Stokes
On December 7, 2021, the United States District Court for the Southern District of Georgia (District Court) issued a nationwide preliminary injunction preventing the federal government from enforcing Executive Order (EO) 14042, which includes the vaccine mandate for federal contractors, during the pendency of legal proceedings. The District Court’s order, available here, follows a decision last week enjoining enforcement of EO 14042 in Kentucky, Ohio, and Tennessee. PilieroMazza’s Labor & Employment Group addresses what government contractors should know in light of the District Court’s order to halt the vaccine mandate. Read more here.

Updated Guidance from OMB, SFWTF, DHS, GSA, and DOD Regarding Federal Contractor Vaccine Mandate Enforcement
In response to the District Court’s injunction covered above, several agencies have issued updates to federal guidance related to enforcement of Executive Order 14042 and inclusion of the related Federal Acquisition Regulation clause in contracts:

  • SFWTF: Updated Guidance for Federal Contractors

DOL Extends Comment Period for COVID-19 Vaccination and Testing Emergency Temporary Standard
The Department of Labor announced that the Occupational Safety and Health Administration has extended the comment period for the COVID-19 vaccination and testing emergency temporary standard to January 19, 2022. Read more here.

DOL Announces New Web Portal for Federal Contractors and Subcontractors to Certify Whether They Have Developed and Maintained an Affirmative Action Program
The Department of Labor announced the upcoming launch of an online portal through which federal contractors and subcontractors will certify compliance with annual Affirmative Action Program requirements. The Affirmative Action Program Verification Interface, or Contractor Portal, provides a method for covered federal contractors to certify on an annual basis whether they have developed and maintained affirmative action programs for each establishment or functional unit, as applicable. The Contractor Portal will also provide a secure method for contractors scheduled for compliance evaluations to submit their Affirmative Action Program(s) to the Office of Federal Contract Compliance Programs. Read more here.

New Global Initiative Will Help Strengthen Worker Organizations and Expand Workplace Protections
Secretary of Labor Marty Walsh recently announced an initiative, M-POWER, that will bring together like-minded governments, worker organizations and labor stakeholders to protect workers in vulnerable, low-wage employment, and those sectors excluded from labor law protection, particularly in the informal economy. The M-POWER initiative is intended to do so by strengthening free and independent trade unions; supporting labor law reform and enforcement; promoting worker organizing and the innovative use of collective bargaining to improve livelihoods; and extending labor law coverage. Read more here.

Alliedbarton Security Services LLC Agrees to Pay More Than $1.1M to Resolve Gender, Race-Based Pay Discrimination Allegations
The Department of Labor’s Office of Federal Contract Compliance Programs announced that it has entered into a conciliation agreement with AlliedBarton Security Services LLC to resolve alleged pay discrimination. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: Construction Webinar Series: Construction Contractors: Considerations in Subcontracting Plans and OFCCP Compliance, January 11, 2022, Anna Wright and Sara Nasseri. Read more here.

WEBINAR: PubK Annual Review 2022 – Labor and Employment, January 24, 2022, Nichole Atallah. Read more here.

GOVERNMENT CONTRACTS

PilieroMazza’s Jon Williams Joins SECAF Board of Directors, December 13, 2021, Jon Williams
PilieroMazza, a business law firm serving the needs of government contractors and commercial businesses, is pleased to announce the addition of Jon Williams to the Board of Directors for the Small and Emerging Contractors Advisory Forum (SECAF). Mitchell Ross, SECAF Chairman of the Board of Directors, commented: “Jon [. . .] ha[s] the experience and dedication to help guide our small and emerging member firms as they navigate the public sector marketplace.” Read more here.

OMB Releases Guidance to Advance Equity for Underserved Small Businesses in Federal Procurement, December 6, 2021, Jon Williams
The Office of Management and Budget (OMB) released guidance, implementing Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities through the Federal Government” (EO). The EO directs agencies to make federal contracting opportunities available to all eligible vendors and remove barriers preventing underserved individuals and communities from entering into procurement opportunities. Additionally, President Biden has set a goal to increase the share of contracts awarded to small, disadvantaged businesses (SDBs) to 15% by 2025. Small businesses should be attentive to how these actions will result in new opportunities for them in 2022. Read more here. Related content is available below.

Senate Approves Sweeping Defense Bill
The Hill reported that the Senate passed a sweeping defense policy bill, ending a weeks-long standoff that had stalled work on the legislation. The National Defense Authorization Act (NDAA), which sets spending top lines and policy for the Pentagon, passed the House last week and now goes to President Biden’s desk, where he’s expected to sign it. Read more here. To learn more about the NDAA’s expected impact for government contractors, register for PilieroMazza’s webinar on January 13, 2021, at 2:00 PM here.

Biden Directs US Government to Reach Net-Zero by 2050
Federal News Network reported that President Biden is ordering the federal government to dramatically shrink its carbon footprint to reach net-zero greenhouse gas emissions across all its operations by mid-century. Biden’s recent executive order puts the federal government’s scale and purchasing power behind the mission by directing agencies to spend billions on electric cars, clean power, and upgraded buildings to reach the target. Read more here. A related press release from the General Services Administration is available here.

Biden Executive Order Seeks Seamless Customer Experience Across Federal Services
Federal News Network reported that President Biden signed an executive order to make public-facing services across the federal government easier to access. The executive order directs agencies to modernize programs, reduce administrative burdens, and pilot new online tools and technologies to provide a seamless customer experience. Read more here.

GSA Delays Final Polaris Solicitation Until Early January
FedScoop reported that the General Services Administration delayed publication of a final request for proposals for the $15 billion Polaris IT contract vehicle until early January. Polaris is one of the most hotly anticipated governmentwide IT acquisition vehicles among federal technology contractors. It has an expected $15 billion ceiling and will allow government agencies to obtain a range of services, including cloud platforms, cybersecurity, and software development technology. Read more here.

NIH to Rework $50B CIO-SP4 Contract
MeriTalk reported that the National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC) will need to rework some requirements in its $50 billion Chief Information Officer-Solutions and Partners 4 (CIO-SP4) IT services contract. The changes come in the wake of the Government Accountability Office’s (GAO) decision to partially sustain a bid protest. The protest argued that the request for proposals is “unduly restrictive of competition” due to limitations on the number of examples of experience that large business mentors could submit in mentor-protégé joint ventures. GAO agreed with the plaintiffs that the limitations were restrictive and found that NITAAC did not provide a “reasonable rationale” for the limitations. Read more here. A breakdown of the bid protest and its implications for CIO-SP4 is available from the Coalition for Government Procurement here.

Pentagon Plans Novel Approach to Competition of JWCC Cloud Procurement
Federal News Network reported that the Department of Defense (DOD) will use an innovative method to let pre-selected firms freely compete for work within the new Joint Warfighting Cloud Capability (JWCC) ecosystem, DOD’s multi-vendor approach to replace the JEDI contract. Under JWCC, DOD will parcel out several billion dollars in cloud spending through smaller awards it will issue as task orders. Instead of having the companies submit bids for each discrete part of DOD’s enterprise cloud, DOD will put a computer system and a centralized program office in charge of deciding which firm is best suited for each piece of JWCC and issue orders accordingly. Read more here.

Strategic Direction for Cybersecurity Maturity Model Certification Program
The Department of Defense (DOD) announced the strategic direction of the Cybersecurity Maturity Model Certification (CMMC) program, marking the completion of an internal program assessment led by senior leaders across DOD. Read more here. 

DHS Continues to Roll Out New Cyber Requirements to Transportation Sector
Federal News Network reported that the Department of Homeland Security’s cybersecurity sprint for the transportation sector is yielding a minimum set of cybersecurity requirements that is slowly spreading out across pipelines, rail operators, aviation, and other entities. The Transportation Security Administration recently issued new cybersecurity directives for rail operators. The requirements will apply to approximately 80% of freight rail operators and 90% of passenger rail operators across the country. They require operators to establish a 24/7 cybersecurity coordinator; report cybersecurity incidents to the Cybersecurity and Infrastructure Security Agency within 24 hours; develop a cyber incident response plan within 180 days; and conduct a cyber self-assessment within 90 days. The directives are effective December 31, 2021. Read more here.

CISA and NSA Release Third Installment of 5G Cybersecurity Guidance
MeriTalk reported that the Cybersecurity and Infrastructure Security Agency (CISA) and the National Security Agency (NSA) released the third installment of the Security Guidance for 5G Cloud Infrastructures four-part series. The series is intended to protect the confidentiality, integrity, and availability of data within a 5G core cloud infrastructure. According to CISA and NSA, the third installment covers protecting sensitive data from unauthorized access. Read more here.

Biden Administration Again Looks to Increase AI R&D Funding at Civilian Agencies
FedScoop reported that the Biden Administration again proposed increasing funding for artificial intelligence research and development at civilian agencies in a supplement to its Fiscal Year 2022 budget request. At $1.7 billion, the requested funding represents an 8.8% increase over enacted Fiscal Year 2021 civilian AI R&D investments of $1.5 billion. Of the $1.7 billion in requested funding for civilian AI R&D, $1.1 billion is for federal AI programs, and $561.7 million is for AI-related efforts among the other 11 program component areas. Read more here.

OMB Guidance Heralds Automation of FISMA Reporting
Nextgov reported that the Office of Management and Budget (OMB) plans to develop a strategy that will enable agencies to automatically fulfill reporting requirements under the Federal Information Security Modernization Act (FISMA). “FISMA data collection has long remained an overly manual process that often leads agencies to create complicated spreadsheets and internal processes to respond to questions,” reads the guidance. “As the Federal information security apparatus matures, so should its reporting mechanisms. OMB is emphasizing automation and the use of machine-readable data to speed up reporting, reduce agency burden, and improve outcomes. This memorandum directs development of a strategy to enable agencies to report performance and incident data in an automated and machine-readable manner.” The new FISMA guidance comes amid a landmark executive order on improving cybersecurity through increased visibility and recognizing a need to focus agency reports on priority areas. Read more here. Related reporting from FedScoop is available here.

Pentagon to Reshuffle Leadership Roles for AI, Data, Digital Services
Federal News Network reported that, according to a recent memo, the Department of Defense (DOD) plans to establish a new office that would oversee three top information technology leadership offices. Detailed plans for the new office have not yet been finalized, but by next February 2022, DOD expects it to encompass the current Joint Artificial Intelligence Center, the Defense Digital Service, and the Chief Data Office in one form or another. Read more here.

House Passes Bill to Extend Deadline by Which Tribes Must Use CARES Funding
The Office of Congressman Tom O’Halleran published a release on the House passage of H.R. 5119, bipartisan legislation that would extend the coverage of Coronavirus Relief Fund payments allocated under the 2020 Coronavirus Aid, Relief, and Economic Security Act to tribal governments from December 30, 2021, to December 30, 2022. The bill has now been received for consideration by the Senate. The full text of the bill is available here.

SBA Announces $1.1 Million in Awards to Support Native American Entrepreneurs
The Small Business Administration (SBA) announced the awardees of $1.1 million in grants and contracts to promote the development, success, and long-term sustainability of Native American-owned businesses. The goal is to provide essential business development services, management, and technical assistance to Native American business owners across the country. The $1.1 million in awards will provide a boost to the SBA’s service providers working to address the systemic inequities that continue to affect Indigenous peoples. The selected awardees will focus on narrowing the gap in business development services provided by the SBA to Native American firms. Read more here.

Statement by Administrator Guzman Applauding President Biden’s New Appointees to the U.S. Small Business Administration
The Small Business Administration (SBA) Administrator Isabella Casillas Guzman issued a statement regarding the appointment of several key Biden-Harris Administration appointees to SBA, including leadership for the Office of Native American Affairs and the Office of International Trade. The statement lists appointees and their roles. Read more here.

SBA Administrator Announces Plans to Elevate the Office of Women’s Business Ownership
The Small Business Administration (SBA) Administrator Isabella Casillas Guzman announced that the SBA intends to elevate its Office of Women’s Business Ownership to directly report to the Office of the Administrator. Read more here. Related reporting from Government Executive is available here.

DHS Warns of Critical Flaw in Widely Used Software
CNN reported that the Department of Homeland Security (DHS) is urging government and private-sector organizations to address a critical flaw in widely used software that hackers were actively using to try to breach networks. The vulnerability is in Java-based software known as “Log4j” that large organizations, including some of the world’s biggest tech firms, use to configure their applications. The vulnerability can offer a hacker a relatively easy way to access an organization’s computer server. From there, an attacker could devise other ways to access systems on an organization’s network. DHS’s Cybersecurity and Infrastructure Security Agency ordered federal civilian agencies to update their software. Read more here.

DHS Office of the Chief Procurement Officer Strategic Plan for Fiscal Years 2022-2025
The Department of Homeland Security (DHS) Office of the Chief Procurement Officer published its Strategic Plan for Fiscal Years 2022-2025. The plan outlines the priorities, goals, and objectives the Office of the Chief Procurement Officer will employ to support the DHS mission.

GSA’s Vendor Education Center Retiring December 17
The General Services Administration (GSA) published a blog regarding its update to a new vendor training and the retirement of the Vendor Education Center (VEC). According to GSA, the changes will make it easier for first-time offerors to get on GSA’s Multiple Award Schedule (MAS) contract. In addition, the blog explains that the VEC will be officially retired and removed from the MAS contract language in a MAS Refresh #9 on December 17, 2021. At that time, all required new offeror training will move to the gsa.gov MAS Roadmap and be accessible from the new forthcoming Vendor Support Center. Read more here.

Unique Entity ID (SAM) in All Integrated Award Environment Systems
The General Services Administration published a blog to announce that, as part of its transition from the DUNS Number to the Unique Entity ID, the two identifiers now appear side by side in several Integrated Award Environment (IAE) systems, including SAM.gov, the Contractor Performance Assessment Reporting System, and the Federal Procurement Data System. The DUNS Number will be removed from all IAE systems on April 4, 2022, and the Unique Entity ID (SAM) will be the authoritative entity identifier. Read more here.

New User Guide for the Digital Made in America Waiver Portal
The Department of Energy announced that, to assist in the change management process, the Made in America Office has established a Made in America Waiver Process MAX page, which contains information and resources on proposed waivers, the waiver review process, and contact information. The “User Guide” and “Data Fields – Nonavailability Waivers” documents in the Resource section contain information for contracting officers and support staff to use prior to submitting a proposed waiver through the digital waiver portal. The User Guide and Data Fields documents will be updated periodically to reflect any changes that have occurred in policy and / or the portal itself. Read more here.

GSAR: Updating References to Commercial Items
The General Services Administration published a final rule, which amends the General Services Administration Acquisition Regulation to conform to changes in the Federal Acquisition Regulation that reflect an updated “commercial item” definition pursuant to a section of the National Defense Authorization Act for Fiscal Year 2019. The rule is effective January 3, 2022. Read more here.

Class Waiver of the Nonmanufacturer Rule
In the interest of efficiency and transparency, the Small Business Administration intends to eliminate the use of Product Service Codes to determine whether an item falls within a class waiver. This action is effective January 5, 2022. Read more here.

Small Business Size Standards: Termination of Nonmanufacturer Rule Class Waiver
The Small Business Administration published a notice to explain that it is considering terminating a class waiver of the nonmanufacturer rule. The termination would remove the waiver for Furniture Frames and Parts, Metal, Manufacturing under NAICS code 337215 and PSC 7195; Furniture Frames, Wood, Manufacturing under NAICS code 337215 and PSC 7195; Furniture Parts, Finished Plastics, Manufacturing under NAICS code 33725 and PSC 7195; Furniture, Factory-type (e.g., cabinets, stools, tool stands, work benches), Manufacturing under NAICS code 337127 and PSC 7110; Furniture, Hospital (e.g., hospital beds, operating room furniture) Manufacturing under NAICS code 339113 and PSC 7195; and Furniture, Laboratory-type (e.g., benches, cabinets, stools, tables) Manufacturing under NAICS code 339113 and PSC 7195. Comments on the notice are due January 14, 2022. Read more here.

Class Deviation Regarding Exceptions to the Limitations on Subcontracting Requirements for Small Business Concerns Under FAR Part 19
The Department of Energy published a class deviation to implement Civilian Agency Acquisition Council Letter 2021-02, which authorized agencies to issue class deviations implementing the Small Business Administration’s rule at 13 CFR 125.6 to implement exclusions to Federal Acquisition Regulation Clause 52.219-14, Limitations of Subcontracting. Read more here.

Federal Acquisition Regulation: United States-Mexico-Canada Agreement
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a proposed rule. It would amend the Federal Acquisition Regulation to implement the United States-Mexico-Canada Agreement Implementation Act (Pub. L. 116-113). Comments are due February 11, 2022. Read more here.

Federal Acquisition Regulation: Minimizing the Risk of Climate Change in Federal Acquisitions
On October 15, 2021, the Federal Acquisition Regulatory Council published an advance notice of proposed rulemaking in the Federal Register at 86 FR 57404 seeking public input on a potential Federal Acquisition Regulation amendment to implement section 5(b)(ii) of Executive Order 14030, Climate-Related Financial Risk. The deadline for comments has been extended from December 14, 2021, to January 13, 2022. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Overview of Subcontracting and FAR Part 44, January 5, 2022, Cy Alba. Read more here.

WEBINAR: Construction Webinar Series: Construction Contractors: Considerations in Subcontracting Plans and OFCCP Compliance, January 11, 2022, Anna Wright and Sara Nasseri. Read more here.

WEBINAR: 2022 NDAA: Important Considerations for Government Contractors, January 13, 2022, Jon Williams and Kevin Barnett. Read more here.

WEBINAR: Small Business Subcontracting Plans: Making a Good Faith Effort and Compliance Tips, January 18, 2022, Cy Alba and Kevin Barnett. Read more here.

WEBINAR: Office of Hearing and Appeals (OHA) Year-In-Review: Impactful Decisions from 2021, January 19, 2022, Peter Ford and Meghan Leemon. Read more here.

WEBINAR: Unlocking the Secrets of Debriefings, Gov’t Evaluation of Proposals and Protests, January 25, 2022, Peter Ford and Meghan Leemon. Read more here.

BUSINESS & TRANSACTIONS

PilieroMazza Serves as Legal Advisor to Central Truck Center in Acquisition by All Roads Trucks, December 6, 2021, Kathryn Hickey, Cy Alba, and Christopher Young
PilieroMazza is pleased to announce that the Firm’s Mergers & Acquisitions Group served as legal counsel to Central Truck Center, a full-service Kenworth and Isuzu dealership in Landover, Maryland, in its sale to All Roads Trucks, a privately held, multi-channel retail and commercial services enterprise headquartered in Baltimore, Maryland. Read more here.

Upcoming Business & Transactions Presentations

WEBINAR: PubK Annual Review 2022 – Mergers and Acquisitions, January 26, 2022, Kathryn Hickey. Read more here.

LITIGATION & DISPUTE RESOLUTION

PODCAST: Risk Prevention Strategies: Responding Effectively to Internal Workplace Complaints
This is the second episode of PilieroMazza’s series on Risk Prevention Strategies. In this episode, Nichole Atallah and Matt Kreiser, attorneys in PilieroMazza’s Labor & Employment and Litigation & Dispute Resolution groups, sit down to discuss common types of employee complaints, the legal protections afforded to complaining employees, and tips for effectively responding to complaints. Listen to the episode here and follow us on Apple Podcasts, Spotify, Google Podcasts, TuneIn, or Stitcher.

Fact Sheet: US Strategy on Countering Corruption
The White House published a fact sheet on the Biden-Harris Administration’s United States Strategy on Countering Corruption (Strategy). The Strategy outlines a whole-of-government approach to elevating the fight against government official abuse of public power for private gain. It places particular emphasis on better understanding and responding to the threat’s transnational dimensions, including by taking additional steps to reduce the ability of corrupt actors to use the US and international financial systems to hide assets and launder the proceeds of corrupt acts. Read more here.

OIG Semiannual Reports to Congress
Several inspector general’s offices, including those for the Small Business Administration and General Services Administration, released their semiannual reports to Congress, which summarize the activities of their offices and current agendas. The reports are available here.

Flower Mound Hospital to Pay $18.2 Million to Settle Federal and State False Claims Act Allegations Arising from Improper Inducements to Referring Physicians
The Department of Justice reported that Flower Mound Hospital Partners LLC has agreed to pay $18.2 million to resolve allegations that it violated the False Claims Act by knowingly submitting claims to the Medicare, Medicaid, and TRICARE programs that resulted from violations of the Physician Self-Referral Law and the Anti‑Kickback Statute. Read more here.

Four Executives Plead Guilty to Fraud Scheme that Caused Over $4.5 Million in Losses to the Small Business Administration
The Department of Justice reported that three former executives of Valley Bank, a defunct financial institution, and the President of Vital Financial Services, a lending service provider, have pleaded guilty to scheming to defraud the Small Business Administration in connection with its programs to guarantee loans made to small businesses. All four defendants pleaded guilty to conspiracy to commit wire fraud affecting a financial institution. The defendants each face a maximum penalty of 30 years in prison. Read more here.