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BUSINESS & TRANSACTIONS / CORPORATE & ORGANIZATIONAL GOVERNANCE
Corporate Transparency Act, Part 4: Reporting Requirements Temporarily Suspended, PilieroMazza Client Alert, Meghan F. Leemon, Abigail “Abby” L. Baker, Cole R. Fox
As you may have been following, PilieroMazza previously reported on the requirements of the Corporate Transparency Act (CTA) and the reporting requirements that are associated therewith (Part 1, Part 2, and Part 3). On December 3, 2024, in the case of Texas Top Cop Shop, Inc. et al. v. Garland et al., the U.S. District Court for the Eastern District of Texas issued a preliminary injunction against the enforcement of the CTA that applies nationwide. In its ruling, the court found that the “CTA is likely unconstitutional as outside of Congress’s power.” It follows, then, that a company’s reporting requirement is also “likely unconstitutional for the same reasons.” Read more here.
Financial Crimes Enforcement Network (FinCEN) Beneficial Ownership Information (BOI) Frequently Asked Questions (FAQs)
On November 15, FinCEN updated its BOI FAQs to add clarification on how Federal agencies may request access to BOI. Should Federal agencies need access to BOI, Federal agencies, if eligible for access through FinCEN’s phased implementation plan, would need to send a request to FinCEN and enter a Memorandum of Understanding. Currently, FinCEN is in the second phase of the phased approach to BOI access. At the time of the publication of the FAQs, only offices within the Department of the Treasury and Federal agencies engaged in law enforcement, national security, and intelligence activities that already have an MOU with FinCEN for Bank Secrecy Act information have access to BOI. Phase three will allow additional Federal agencies and state, local, and Tribal law enforcement partners to access BOI, which is expected in the fall of 2024. The full FAQs are available here.
SAM Registration Rules May Ease: Lapses OK!, PilieroMazza Blog, Isaias “Cy” Alba, IV
In 2023, PilieroMazza reported on Myriddian, LLC v. U.S.[1] where the Court of Federal Claims interpreted Federal Acquisition Regulation (FAR) Clause 52.204-7 to require that offerors maintain an active SAM (System for Award Management) registration continuously from offer submission to contract award. The Department of Defense, General Services Administration, and the National Aeronautics and Space Administration have issued an interim rule allowing contractors minor lapses in SAM registrations without risking their ability to secure contract awards. Read more here.
Should You Protest? Takeaways for Government Contractors from GAO’s 2024 Bid Protest Annual Report, PilieroMazza Blog, Katherine B. Burrows, Eric Valle
The Government Accountability Office (GAO) recently released its 2024 Bid Protest Annual Report (Report), providing statistics on protests, cost claims, and requests for reconsideration at GAO this year. In this blog, PilieroMazza analyzes what the Report reveals about bid protests at GAO, including recent trends and how this information could affect a contractor’s decision to file a protest as well as its likelihood of success. Read more here.
Department of Homeland Security (DHS) Final Rule, Homeland Security Acquisition Regulation (HSAR):
- Rescinding Reserve Officer Training Corps and Military Recruiting on Campus Clause: On November 25, DHS published a final rule amending the Homeland Security Acquisition Regulation (HSAR) to remove and reserve an HSAR clause and subpart. These provisions contain regulatory requirements, which prohibits the award of certain Federal contracts to institutions of higher education that prohibit Reserve Officer Training Corps units or military recruiting on campus. The rule is available here and will be effective December 26, 2024.
- Restrictions on Foreign Acquisition Update: On November 25, DHS published a final rule amending the HSAR to provide clarity regarding the requirements under the Kissell Amendment of the American Recovery and Reinvestment Act of 2009 relating to clothing, canvas, textile, and fabric acquisition. The rule is available here and will be effective December 26, 2024.
Small Business Administration (SBA) Proposed Rule: Surety Bond Guarantee Program, Streamlining and Modernizing
On November 19, SBA published a proposed rule and request for comments amending its Surety Bond Guarantee Program regulation. This proposed rule is intended to reduce the burden on participating companies. This rule will remove obsolete provisions and will revise conflicting provisions. The rule is available here. Comments close January 21, 2025.
Federal Acquisition Regulation (FAR) Proposed Rule: Inflation Adjustment of Acquisition-Related Thresholds
On November 29, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a proposed rule and request for comments to amend the FAR and implement inflation adjustment every five years. The adjustment uses the Consumer Price Index for all urban consumers and does not apply to the Construction Wage Rate Requirements statute (Davis-Bacon Act), Service Contract Labor Standards statute, performance and payment bonds, and trade agreement thresholds. DOD, GSA, and NASA are also proposing to use the same methodology to adjust non-statutory FAR acquisition-related thresholds in 2025. The rule is available here. Comments close January 28, 2025.
White House Fact Sheet: Ahead of Small Business Saturday, the Biden-Harris Administration Takes New Actions to Increase Federal Support for Small Businesses
On November 29, the White House announced that the Biden-Harris Administration is increasing small business lending limits and helping small businesses compete for federal contracting opportunities by increasing the cap on SBA 7(a) loans from $350,000 to $500,000, and releasing procurement guidance on upcoming contracting and subcontracting opportunities. Read more here.
Department of Defense (DOD) News Release: DOD Signs MOU to Expand Opportunities for Minority Business Enterprises (MBEs)
DOD and the Department of Commerce’s Minority Business Development Agency (MBDA) signed a Memorandum of Understanding (MOU) aimed at increasing participation of minority business enterprises (MBEs) within the defense industrial base. This partnership reflects a shared commitment to increasing MBEs’ awareness of supply chain opportunities, fostering collaboration, capacity building, business development, and increasing awareness and engagement in defense-related procurement and development programs. Read more here.
Government Accountability Office (GAO) Report: GAO Bid Protest Annual Report to Congress for Fiscal Year (FY) 2024
On November 14, GAO sent its annual bid protest report to Congress for the FY 2024. In this report, GAO criticizes the Department of State for being the only agency not to comply with GAO recommendations following a bid protest. Bid protests sustains are down 15% compared to FY 2023, the cases filed are down 11%, and effectiveness rate is down 5%. It is important to note that this report does not measure statistical significance. Read more here.
DOD Reveals First Draft of $15B Artificial Intelligence Contract, NextGov/FCW
The Defense Department has given the industry a first glimpse at how it plans to compete a potential $15 billion program whose mission is in the name – Advancing Artificial Intelligence Multiple Award Contract. Read more here.
Musk’s Government Roles Create ‘clear avenues for serious conflicts of interest,’ Government Executive
The SpaceX CEO, who leads a company with more than $10 billion in government contracts, is also the face of a new body aimed at getting rid of government waste. Read more here.
Romania Paying $7B to Buy F-35s From Lockheed Martin, Law360
The Romanian government, in an effort to bolster the capabilities of its air force, has agreed to purchase 32 stealth fighter jets for $7.2 billion from manufacturer Lockheed Martin, according to multiple statements. Read more here (subscription required).
Biden Officials, Republicans Point Fingers Over Exhausted Disaster Loans Program, The Hill
The Biden administration said the Small Business Administration (SBA) needs $2 billion in funding after its disaster loan account — which businesses and homeowners rely on for low-interest loans to recover from disasters — was exhausted in the aftermath of hurricanes Helene and Milton. But Republicans are ramping up scrutiny on the agency’s handling of the disaster dollars and pressing for more information about the circumstances surrounding the funding lapse. Read more here.
General Services Administration (GSA) Multiple Award Schedule (MAS) Blog: Joint Ventures (JVs) Will Now Be Able to See Socio-economic Set-aside Opportunities in eBuy!
On November 15, GSA announced that JVs will be able to view set-aside opportunities in eBuy for Service-Disabled Veteran-Owned, Historically Underutilized Business Zone, Women-Owned, and 8(a) JV eligibility. Read more here.
Lawmaker Looks to Improve SBA’s IT Modernization After Critical GAO Review, NextGov/FCW
A proposal from Rep. Nydia Velázquez would require that the Small Business Administration “establish and implement policies and procedures to govern information technology modernization projects.” Read more here.
H.R. 9596, Value Over Cost Act, Passed House
On November 12, H.R. 9596 passed in the House of Representatives. The Bill was received by the Senate Committee on Homeland Security and Governmental Affairs on November 13. This Bill was introduced to the House Oversight and Accountability and Armed Services Committees by Rep. Donalds (R-FL-19) on September 16, 2024. If enacted, this bill will require contracts and orders under the General Services Administration’s (GSA) Multiple Award Schedule to be evaluated based on the best value instead of the lowest cost should the GSA determine such an evaluation is in the best interest of the government. The full text of the bill as referred in the Senate is available here.
Upcoming Government Contract Presentations
TRAINING: Mergers & Acquisitions in Government Contracting: Novations and Recertification, December 10, 2024, Isaias “Cy” Alba, IV, Cole R. Fox
SEMINAR: Small Business Contracting & Subcontracting, December 13, 2024, Meghan F. Leemon
Department of Labor (DOL) Press Releases:
- DOL Expands Employment Assistance for Transitioning Service members, Veterans, Spouses with New Training, Partners, Service Areas: On November 21, DOL announced that its Veterans’ Employment and Training Service expanded the Transition Assistance Program, extending the opportunity for veterans, transitioning service members, and their spouses to use resources to find suitable employment. Read more here.
- DOL Petitions Federal Court to Force US Postal Service (USPS) to Comply with Subpoenas in Employee Whistleblower Investigation: On November 21, DOL announced that it petitioned the U.S. District Court for the Western District of Pennsylvania to enforce its subpoenas which are part of a whistleblower investigation of the USPS in New Salem. The whistleblower contended that they were suspended after reporting safety hazards and suffered a work-related injury. Read more here.
- DOL Announces New Research That Underscores Benefits of Paid Family and Medical Leave: On November 21, DOL announced that it released new research finding that national paid family and medical leave reduces poverty and the poverty gap among workers, especially among Black and Hispanic workers, whose populations and communities endure some of the highest poverty rates. Read more here.
Upcoming Labor & Employment Presentations
TRAINING: Labor Rules & Regulations: Federal Market Compliance, December 11, 2024, Sarah L. Nash
CONSTRUCTION / LABOR & EMPLOYMENT
DOL Revives Federal Construction Contractor Worker Data Reports, Bloomberg Law
The Department of Labor’s federal contractor watchdog reinstated the use of monthly reports where companies doing construction projects disclose information about employees based on race, ethnicity, gender, and trade, as well as work hours. Read more here (subscription required).
DOL Issues Guidance to Curb Harassment in Construction, Law360
The U.S. Department of Labor announced Thursday that it has released a new guide to help federal contractors in the construction industry tamp down on harassment, becoming the latest federal anti-discrimination agency during President Joe Biden’s administration to draw attention to the issue. Read more here (subscription required).
FALSE CLAIMS ACT / AUDITS & INVESTIGATIONS
Department of Health and Human Services (HHS) Office of Inspector General (OIG) Proposed Rule: Solicitation of Proposals for New and Modified Safe Harbors and Special Fraud Alerts
On November 27, HHS’s OIG published a proposed rule and request for comments regarding its annual notification for recommendations for developing new or modifying existing safe harbor provisions in the Social Security Act, anti-kickback statute, and Special Fraud Alerts. The rule is available here. Comments close at 5 pm EST on January 27, 2025.
INTELLECTUAL PROPERTY & TECHNOLOGY RIGHTS
Patent and Trademark Office (USPTO) Trademark Manual of Examining Procedure (TMEP)
In November 2024, USPTO updated its TMEP to provide trademark applicants a reference for trademark appeals and trademark enforcement. TMEP contains guidelines for Examining Attorneys and materials in the nature of information and interpretation and outlines the procedures which Examining Attorneys are required or authorized to follow in the examination of trademark applications. The updated TMEP is available here.
NATIVE AMERICAN LAW & TRIBAL ADVOCACY
Va. Rep. Sponsors Bill to Recognize Nottoway Tribe, Law360
A Democratic congresswoman has introduced a bill that would give federal recognition to the Nottoway Indian Tribe of Virginia, which she said is “long-overdue.” Read more here (subscription required).
PRIVATE EQUITY & VENTURE CAPITAL
Department of the Treasury (Treasury) Press Release: Treasury Releases New Report Showing State Small Business Credit Initiative Has Supported $3.1 Billion in New Financing for Small Businesses
On November 25, the Treasury announced that it released a report summarizing the data from the State Small Business Credit Initiative (SSBCI) for the first two years of the program, from the first transaction on August 5, 2022, through December 31, 2023. The American Rescue Plan reauthorized and expanded SSBCI, which provides nearly $10 billion to support small businesses and empower them to access the capital needed to invest in job-creating opportunities. SSBCI provides funds to states, the District of Columbia, territories, and Tribal governments to promote American entrepreneurship, support small business ownership, and expand access to capital across the country, including in underserved communities. Read more here.