Weekly Update for Government Contractors and Commercial Businesses – September 14, 2020

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LABOR & EMPLOYMENT

CLIENT ALERT: New Minimum Wage Requirements for Government Contractors May Impact Price Adjustments, September 10, 2020, Nichole Atallah
Effective January 1, 2021, the Executive Order minimum wage rate that generally must be paid to workers performing work on or in connection with covered government contracts will increase to $10.95 per hour, while the required minimum cash wage that generally must be paid to tipped employees performing work on or in connection with covered contracts will increase to $7.65 per hour. Each year, the Department of Labor (DOL) assesses the established minimum wage and, using determined methodology, announces an increase. For government contractors, if your workforce is affected by the increase, you may be eligible for a price adjustment. [Read More]

Management Advisory Review on FLRA’s Appointment of Contracting Officer’s Representatives
The Federal Labor Relations Authority’s (FLRA) Office of Inspector General released a report on its assessment of whether FLRA employees assuming the responsibilities of a Contracting Officer’s Representatives (CORs) were appropriately certified and whether FLRA complied with the Office of Management and Budget (OMB) and the Federal Acquisition Regulation (FAR) requirements for appointing CORs to contracts for Fiscal Year 2020. 

EEOC Limits Power to Bring ‘Pattern or Practice’ Bias Claims
The Equal Employment Opportunity Commission (EEOC) issued an agency opinion letter stating that the EEOC does not have authority to sue employers over sweeping job patterns or practices that allegedly lead to workplace bias without such a “pattern or practice of resistance” claim being tied to a violation of Sections 703 or 704 of Title VII or without first going through procedural steps laid out by federal law. Read more here.

DOL Issues Four New Wage and Hour Opinion Letters
DOL issued four new opinion letters that address compliance issues related to the Fair Labor Standards Act. Read more here.

Upcoming Labor & Employment Presentations

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

LITIGATION & DISPUTE RESOLUTION

ANNOUNCEMENT: Megan Benevento Joins PilieroMazza’s Growing Litigation Team, September 4, 2020
Megan Benevento has joined PilieroMazza as an Associate in the Litigation & Dispute Resolution and Government Contracts practice groups. “Megan’s record of unparalleled advocacy in complex litigation matters makes her a welcome addition to our litigation practice,” said Matt Feinberg, Chair of the Litigation & Dispute Resolution Group. “We’re excited to have her on the team.” [Read More]

BLOG: Healthcare Blog Series: An Introduction to the Anti-Kickback Statute and Stark Law, September 9, 2020, Matt Kreiser
One of the major differences between the healthcare industry and other business sectors is federal regulations covering the inducement of business through referrals with financial incentives. While it may be permissible, and even common, in many industries to obtain business through financial incentive referrals, such arrangements are impermissible when the transaction involves goods or services covered by any of the federal healthcare programs. The Anti-Kickback Statute (AKS) and the Physician Self-Referral Law (Stark Law) forbid such business arrangements.  This installment will provide an introduction to the AKS and the Stark Law, two of the most well-known anti-fraud and -abuse statutes in the healthcare industry, and examine their main differences and respective effects on business relationships and transactions in the healthcare sector. It is critical for government contractors and commercial businesses operating in the healthcare field to be familiar with the AKS and the Stark Law in order to avoid costly litigation, and in some cases, criminal liability. [Read More]

GOVERNMENT CONTRACTS

ANNOUNCEMENT: Christine Fries Joins PilieroMazza’s Government Contracts Group, September 3, 2020
PilieroMazza is pleased to welcome Christine Fries as an Associate in its Government Contracts Group. Christine represents commercial businesses in a wide variety of government contracting matters. “Christine’s dedication to developing nuanced business solutions for clients is a strong addition to the PilieroMazza team. We’re glad to have her on board,” said Tony Franco, Chair of the Government Contracts Group. [Read More]

Five Things to Watch in Talks on 2020 NDAA
The Hill reported that the House and Senate are expected to begin negotiations in earnest on the 2020 National Defense Authorization Act (NDAA). It gave five issues to watch when the NDAA negotiations start. Read more here.

DOD Reaffirms Microsoft’s JEDI Cloud Award
The Department of Defense (DOD) reaffirmed its decision to award Microsoft a $10 billion cloud-computing contract after reevaluation. Read more here.

Defense Acquisition System Directive Goes into Effect
DOD announced that DOD Directive 5000.01 was signed into effect. The Defense Acquisition System’s (DAS) objective is to support the National Defense Strategy through the development of more lethal force based on US technological innovation and a culture of performance that yields a decisive and sustained US military advantage. DOD Directive 5000.01 describes the principles governing DAS’s acquisition process and its operating policies. Read more here, and read Directive 5000.01 here.

COVID-19: Brief Update on Initial Federal Response to the Pandemic
The Government Accountability Office (GAO) released a report analyzing the government’s response to the COVID-19 pandemic. The government has obligated more than $1.4 trillion in funding, with most spending going to business loans and unemployment insurance. 

The Federal Government’s $23 Billion Contracting Business Has Left Minority Businesses Behind
Government Executive reported that Accountable.US performed an analysis of federal contracting data to determine whether there are inequities in the federal government’s response to the COVID-19 pandemic. Based on data from the Federal Procurement Data System, Accountable.US determined that, of the more than 53,000 contracts totaling $23 billion and tagged as COVID-19 contracts, minority-run businesses were awarded only about 11% of contracts. Read more here.

GSA Provides Some Clarity on Section 889 Implementation
Nextgov reported that the General Services Administration (GSA) provided some clarity and furnished details regarding how the agency is implementing Section 889 of the 2019 NDAA in a recent webinar. Nextgov reported, however, that GSA declined to address questions around the ambiguous terminology used in interim rules. Read more here.

Information Technology: Key Attributes of Essential Federal Mission-Critical Acquisitions
GAO released a report on 16 critical information technology acquisitions, risks to their cost and schedule, and more. Read more here.

GSA Extends COVID-19 Acquisition Flexibilities
The Coalition for Government Procurement reported that GSA made the following three extensions to GSA COVID-19 related policies:

• Temporary Moratorium on the Enforcement of FAS Minimum Sales Requirements, MV-20-09 (includes Supplement 1): Extends the temporary moratorium on the enforcement of the minimum sales requirement for Federal Supply Schedule contracts to March 31, 2021.
• Purchase Exceptions for AbilityOne Products in Response to COVID-19, SPE -2020-10 (includes Supplements 1–3): Extends the Purchase Exceptions authority for certain AbilityOne products to December 31, 2020.
• Exception to Trade Agreements and Buy American for FSCs Due to COVID-19, SPE 2020-11 (includes Supplements 1–3): Extends the Trade Agreements and Buy American statutes non-availability determination to December 31, 2020. The supplement also adds Federal Supply Class (FSC) 8415, which includes items such as disposable gloves, to the non-availability determination list.

COVID-19 Contracting: Observations on Contractor Paid Leave Reimbursement Guidance and Use
GAO released a report on the use of Section 3610 of the Coronavirus Aid, Relief, and Economic Security Act. Section 3610 authorizes federal agencies to reimburse contractors for paid leave related to the COVID-19 pandemic through September 30, 2020. Read more here.

GSA FAS Publishes 889 Part B Modification Status Tracker
The Coalition for Government Procurement reported that, to aid customer agencies in identifying which Federal Acquisition Service (FAS) indefinite delivery acquisition vehicle contracts have been modified to include FAR clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment, FAS has created the 889 Part B Modification Status Tracker page. The Tracker, along with other resources on Section 889, can be found on the Coalition’s resource page, “What Federal Contractors Need to Know About Section 889.” Read more here.

GSA Advantage Catalogue and Price Lists Updates Due by October 31
GSA released an update on schedules consolidation, reminding contractors that price lists and GSA Advantage catalogs must be updated by October 31, 2020. GSA also provided a MAS Roadmap and MAS Offeror Training video to assist companies with getting a schedule. Read more here.

Interim Rule Sets Process to Exclude, Remove Risky Technology from Supply Chain
Federal News Network reported that the Federal Acquisition Security Council has put the fourth leg of the supply chain risk management tool in place. The long-awaited interim rule adds another layer of security and requirements on agencies to address ever-increasing concerns about the technology they install into their networks or use in the cloud. Read more here.

GSA Pushes Price Competition to the Task Order Level
Federal News Network reported that Congress blessed the concept of an “unpriced multiple award contract” where costs only mattered at each individual task order level in the 2018 NDAA. It took almost two years, but GSA’s ASTRO solicitation puts a stake in the ground that “price” as an evaluation factor for large multiple-award contracts is no longer relevant and will come into play at the task order level. Read more here.

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

OMB Cybersecurity Guidance
OMB issued guidance to executive departments and agencies to establish coordinated vulnerability disclosure methodologies in their cybersecurity risk management programs. Read more here.

Upcoming Cybersecurity & Data Privacy Presentations

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

BUSINESS & TRANSACTIONS

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]