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Open-Source Software in Federal Procurements: The Good, the Bad, and the Ugly, Part 3—The Ugly, January 29, 2020, Isaias “Cy” Alba, IV
Concluding our blog series on open-source software in the government market, it is time to turn to the darker side of things. We already discussed the “good” of open-source software for government buyers, and we walked through the “bad,” explaining how some elements may conflict with federal laws or priorities. Now we will look at the “ugly” side of open-source software and how contractors can mitigate associated risks. [Read More]
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New York v. Delaware Part 2: Which State is Best for Governing Law?, January 28, 2020, Melissa Rodriguez
In Part 2 of this blog series (visit this link for Part 1), we dive into which state—New York or Delaware—is best for businesses to consider as governing law for their contracts. Both Delaware and New York have a reputation for being the governing law or jurisdiction of choice in commercial agreements and corporate transactions. A company’s decision will greatly impact which rules and laws govern agreements when legal issues arise. [Read More]
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4 Issues That Defined the False Claims Act in 2019, January 28, 2020, Matthew Feinberg
As I wrote two weeks ago, the Department of Justice (DOJ) recently released its annual fiscal year statistics on False Claims Act (FCA) and fraud matters. The report shows Fiscal Year (FY) 2019 was another big year for the FCA, as the number of new matters initiated and the amount of monetary recoveries obtained both increased over the previous year. 2019 also brought important FCA decisions from federal courts, including the Supreme Court; potential new avenues for FCA liability; and formal announcements from DOJ. These reveal emerging trends that may have lasting implications for government contractors. [Read More]
Employers: Is Your FMLA Policy DOL Compliant?, January 30, 2020, Nichole Atallah
The Family Medical Leave Act (FMLA) requires employers with the requisite number of employees to provide up to 12 weeks of leave to employees experiencing a qualifying event. Regulations implementing the FMLA require that employers display a poster in a prominent location that summarizes major FMLA provisions and explains how to file a complaint. Employers may have failed to notice that the Department of Labor (DOL) updated the poster in 2016 to include sections on employer responsibility and enforcement. To remain in compliance and avoid a potential DOL investigation, employers should ensure their company has an updated FMLA policy that contains language covering the most recently added sections. [Read More]
Government Executive: DOL Consolidating Procurement Services
Government Executive reported that DOL is consolidating its procurement services into one office this quarter after making headway streamlining human resources and information technology support. According to Government Executive, the consolidation is part of a push from the Trump Administration for more shared services, where one office provides administrative support for multiple agencies within a department or across the government. Read more here.
DOL Rescinds Regulations on Nondisplacement of Qualified Workers Under Service Contracts
The DOL issued a final rule to rescind regulations on the nondisplacement of qualified workers under service contracts. On October 31, 2019, President Trump issued an executive order on improving federal contractor operations, which revoked an executive order concerning the nondisplacement of qualified workers under federal service contracts, and directed the Secretary of Labor to promptly rescind the regulations and policies implementing the revoked executive order. The directive also ordered the termination of all investigations or compliance actions based on the revoked executive order. The final rule is effective January 31, 2020. Read the published version here.
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SBA Proposes to Use Federal Surplus Personal Property for Veteran-Owned Small Businesses and Small Businesses in Disaster Areas and Puerto Rico
The Small Business Administration (SBA) issued a proposed rule to expand access for certain small business concerns in varying circumstances to GSA's Federal Surplus Personal Property Donation Program. The Recovery Improvements for Small Entities After Disaster Act of 2015, the Veterans Small Business Enhancement Act, and the John S. McCain National Defense Authorization Act for FY 2019 provide that small businesses in disaster areas, veteran-owned small businesses, and small business concerns located in Puerto Rico, respectively, should be considered for surplus personal property distributions. SBA, in coordination with GSA, is proposing certain procedures for determining which firms may participate in GSA's existing surplus personal property program, and under what conditions. Comments to the proposed rule are due March 23, 2020. Read the published version here.
DOE Office of Management: Expiration of GSA’s FAR Part 51 Deviation
The Department of Energy (DOE) announced that the longstanding GSA class deviation to FAR part 51 expired on October 23, 2019, and may not be used on orders placed after this date, though it may continue to be used on orders issued prior to the expiration date throughout the life of the order, including any options. The deviation allowed contracting officers to authorize all GSA contractors performing on a time and material or labor hour basis to purchase ancillary supplies and services from Federal Supply Schedule contractors. GSA has indicated that agencies may now use Order-Level Material procedures to acquire other direct costs and material support items to meet the requirements of a specific order. Read the DOE Office of Management policy flash here.
Request for Comments: Revision and Renewal Concerning Payments to Small Business Subcontractors
DOD, GSA, and the National Aeronautics and Space Administration (NASA) issued a notice and request for comments on a revision and renewal concerning payments to small business subcontractors. Comments are invited on: whether the proposed collection of information is necessary for the proper performance of the functions of federal government acquisitions, including whether the information will have practical utility; the accuracy of the estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. DOD, GSA, and NASA will consider all comments received by March 31, 2020. Read the published version here.
GSA: Julie Dunne Named New Commissioner of GSA’s FAS
GSA announced that Julie Dunne has been named the commissioner of the Federal Acquisition Service (FAS). Dunne will lead the FAS as it continues to enhance and simplify the acquisition experience through its Federal Marketplace Strategy and IT modernization initiatives. FAS will continue to focus on consolidating the Multiple Award Schedules program and increasing efficiencies and taxpayer savings through shared services, like the Fleet program. Read more here.
DOD OIG Report: Understanding the Results of the Audit of the DOD FY 2019 Financial Statements
The DOD’s Office of Inspector General (OIG) issued a report describing the importance of DOD financial statement audits and the roles and responsibilities of DOD management and the auditors that reviewed the financial statements. It also summarizes the FY 2019 DOD component and agency-wide audit results, discusses significant material weaknesses, explains improvements that have been made since FY 2018, and provides the DOD OIG’s perspective on what the DOD should do to continue its progress towards clean opinions and stronger financial management. Read the full report here.
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SBA: Updates to Money Smart for Small Business Credit and Banking Modules
SBA and the Federal Deposit Insurance Corporation have released two updates to the popular Money Smart for Small Business curriculum. The updated modules focus on banking and credit. They are available for SBA Resource Partners, financial institutions, and economic development organizations to help train entrepreneurs and small business owners. Read more here.
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