Weekly Update for Government Contractors and Commercial Businesses – March 18, 2021

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LITIGATION & DISPUTE RESOLUTION

Do Corporations Have Fifth Amendment Rights Against Self-Incrimination? The Corporate Designee’s Rights in a FRCP 30(b)(6) Deposition, March 10, 2021, Megan Benevento
Anyone who has watched a courtroom television drama is aware of their Fifth Amendment privilege against self-incrimination. But “pleading the Fifth” is not something a witness can invoke blanketly to avoid answering questions, especially where a witness is testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6). In those circumstances, knowing your available options when preparing a corporate designee witness is key to managing any risks of potential self-incrimination. Read more here.

GOVERNMENT CONTRACTS

American Rescue Plan Act Elevates Small Business Support in Response to COVID-19
The Small Business Administration (SBA) announced that the American Rescue Plan Act (Act) will add new efforts and provide additional relief through SBA programs. Specifically, the Act includes:

• $7.25 billion in additional funding for the Paycheck Protection Program and expanded eligibility to additional nonprofits and digital news services;
• Additional funds for the Shuttered Venue Operators Grant program;
• $15 billion in additional funding for Targeted Economic Injury Disaster Loan Advance (EIDL) payments, including $5 billion for Supplemental Targeted EIDL Advance payments for those hardest hit; 
• $28.6 billion for the Restaurant Revitalization Fund for industry-focused grants; and 
• $100 million to establish a Community Navigator pilot program—grants from the program will go to eligible organizations supporting efforts to improve access to COVID-19 pandemic assistance programs and resources.

Read more here. Additional information on the Act is available on the White House website here.

COVID Relief Bill Boosts Funding for CISA, GSA, and U.S. Digital Service
Nextgov reported that the American Rescue Plan Act includes significant technology funding for several agencies, including the Cybersecurity and Infrastructure Security Agency (CISA), the General Services Administration (GSA), and the U.S. Digital Service, which is based within the Executive Office of the President. Read more here.

Changes to Paycheck Protection Program Increase Equitable Access to Relief
The Small Business Administration announced that early indications show that recent Paycheck Protection Program (PPP) reforms and related efforts to engage with communities authentically are working in meaningful ways. The cornerstone of reforms included a fourteen-day exclusivity period (February 24–March 9) where only businesses and nonprofits with fewer than twenty employees could apply for relief through the PPP. As of March 7, a comparison of the daily average rate of loans made during the exclusivity period and daily average rate ten days before the exclusivity period show loans to:

• Minority-owned businesses up by 20%, or an additional 1,000 businesses accessing relief each day;
• Women-owned businesses up by 14%, or an additional 600 businesses accessing relief each day; and
• Small businesses in rural areas up by 12%, an additional 1,000 businesses accessing relief each day.

In total, more than 400,000 small businesses and nonprofits with fewer than twenty employees were serviced during the exclusivity period as of March 7. Compared to the ten days preceding the exclusivity period, the reforms show that nearly 200,000 are first-time PPP borrowers. Read more here.

Revisions to PPP Loan Amount Calculation and Eligibility
The Small Business Administration published an interim final rule that implements changes related to the Paycheck Protection Program (PPP). The interim final rule allows individuals who file an IRS Form 1040, Schedule C to calculate their maximum loan amount using gross income, removes the eligibility restriction that prevents businesses with owners who have non-financial fraud felony convictions in the last year from obtaining PPP loans, and removes the eligibility restriction that prevents businesses with owners who are delinquent or in default on their federal student loans from obtaining PPP loans. Unless otherwise specified in the rule itself, the provisions of the interim final rule were effective March 4, 2021. Read more here.

SBA Extends Deferment Period for All COVID-19 EIDL and Other Disaster Loans Until 2022
The Small Business Administration (SBA) announced extended deferment periods for all disaster loans, including the COVID-19 Economic Injury Disaster Loan (EIDL) program, until 2022. Specifically, SBA stated that:

• All SBA disaster loans made in calendar year 2020, including COVID-19 EIDL, will have a first payment due date extended from twelve months to twenty-four months from the date of the note.
• All SBA disaster loans made in calendar year 2021, including COVID-19 EIDL, will have a first payment due date extended from twelve months to eighteen months from the date of the note.

Read more here.

Lawmakers Introduce Plans to Extend Paycheck Protection Program as Deadline Nears
CNBC reported that, as the March 31st deadline for SBA’s Paycheck Protection Program looms, a bipartisan group of lawmakers introduced the Paycheck Protection Program Extension Act in the House of Representatives, which would push the expiration date to May 31st and give SBA authority to continue to process pending applications for another 30 days after that date. A companion bill with the same stipulations was introduced in the Senate. Read more here.

GSA Extends Deadlines for COVID-19 Policies
The General Services Administration (GSA) announced extensions for two acquisition policies that have been implemented to help the government respond to COVID-19. Specifically, GSA extended a purchase exception for the AbilityOne program, which waives certain AbilityOne requirements for products where capacity exceeded demand. The exception was extended until September 30, 2021. Additionally, GSA extended a moratorium on the minimum sales requirement for GSA Schedule contracts until September 30, 2021. 

GSA Plans ‘Summer’ Release for Polaris Final RFP
Bloomberg Government reported that the General Services Administration (GSA) plans to release a final request for proposals (RFP) for its Polaris small business IT contract by summer 2021. Related information from GSA is available here.

GSA Issues Policy for Contractor Self-Assessments
The General Services Administration (GSA) issued an Acquisition Alert (AA) to provide guidance for contracting officers (CO) on contractor self-assessments. The self-assessments can be used for reporting to the Contractor Performance Assessment System. COs may request, but not require, the assessment during the post-award phase of contract administration. The AA provides a sample letter for COs to request the self-assessment, and procedures to follow if the CO and contractor disagree on the assessment. According to GSA, the assessments should be requested annually. 

Upcoming Government Contracts Presentations

WEBINAR: May the Clause Be with You: Certification / Information Regarding Responsibility Matters, March 23, 2021, Cy Alba and Katherine Burrows. Read more here.

WEBINAR: Roadmap to Joint Venture Agreements: Legal and Accounting Considerations, April 6, 2021, Tony Franco. Read more here.

WEBINAR: Navigating the FAR/DFARS: The Most Confusing and Little Known Clauses, April 26, 2021, Tim Valley and Christine Fries. Read more here.

LABOR & EMPLOYMENT

More Paid Leave Secured in New COVID-19 Relief Law
Federal Computer Week reported that the American Rescue Plan Act provides an extension of a provision from Section 3610 of the Coronavirus Aid, Relief and Economic Security Act that allows agencies to continue paying federal contractors if they cannot work due to the pandemic. The provision was due to expire at the end of March, but the new COVID-19 relief package extends those protections through September 30, 2021. Read more here.

DOL Proposes to Rescind FLSA Independent Contractor and Joint Employer Rules
The Department of Labor (DOL) published two notices of proposed rulemaking and requests for comments (NPRM).

• The first NPRM proposes to withdraw the final rule titled “Independent Contractor Status under the Fair Labor Standards Act,” which was published on January 7, 2021, with an effective date of May 7, 2021. Comments on the proposed rulemaking are due April 12, 2021. Read the published version here.
• The second NPRM proposes to rescind the final rule entitled “Joint Employer Status Under the Fair Labor Standards Act,” which was published on January 16, 2020, and took effect on March 16, 2020. The proposed rulemaking would remove the regulations established by that rule. Comments on the proposed rulemaking are due April 12, 2021. Read the published version here.

Coverage of the two proposed rulemakings is available from DOL here.

OSHA Is Enhancing COVID-19 Worker Protections
In response to President Biden’s executive order on protecting worker health and safety, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has launched a national emphasis program focusing enforcement efforts on companies that put the largest number of workers at serious risk of contracting COVID-19. The program also prioritizes employers that retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law. Read more here.

Upcoming Labor & Employment Presentations

WEBINAR: Collective Bargaining for the Federal Contractor, March 24, 2021, Nichole Atallah. Read more here.