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On December 20, 2023, the Armed Services Board of Contract Appeals (the Board) denied the government’s motion to dismiss pandemic-related claims. In doing so, the Board rejected the government’s arguments alleging that the claims (1) failed to state a claim, (2) were barred by the sovereign acts affirmative defense, and (3) failed to provide a clear amount as required by the Contracts Disputes Act. The Board’s rejection of the government’s motion to dismiss in McCarthy HITT – Next NGA West JV, ASBCA No. 63571 (2023), suggests well-plead pandemic-related claims can gain traction for government contractors seeking relief from pandemic-related impacts on performance. Read more here.
Set-Aside Alert Interviews PilieroMazza’s Tony Franco on 8(a) Lawsuit and House Small Business Committee’s Probe, PilieroMazza News, Antonio R. Franco
The U.S. District Court judge who banned the SBA from using a rebuttable presumption of social disadvantage for members of certain minority and ethnic groups in SBA’s 8(a) Business Development program has not issued a final ruling yet. But that did not stop the House Small Business Committee Chair Roger Williams, R-TX, from announcing on December 1 that the Committee is initiating an investigation of SBA’s compliance with the judge’s prohibition. SBA, in response to the judge’s order, began requiring all 8(a) applicants and current participants who benefited from the presumption to submit a detailed narrative describing their experiences of social disadvantage.
The court currently is still considering additional actions, including possibly permanently disallowing 8(a) set-asides in a broad set of industries. Set-Aside Alert interviewed Tony Franco, Managing Partner of the law firm PilieroMazza, about the case and the Committee’s probe. Please visit this link for the full article (subscription required). Read more here.
Federal Acquisition Regulation (FAR) Council Proposed Rule: Limitations on Subcontracting Revisions
On January 17, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a Proposed Rule amending the FAR and implementing changes made by the Small Business Administration. The Proposed Rule will update and clarify requirements for limitations on subcontracting and the nonmanufacturer rule. The Proposed Rule is available here. Comments close March 18, 2024.
Small Business Administration (SBA) Direct Final Rule: Small Business Investment Company (SBIC) Investment Diversification and Growth; Technical Amendments and Clarifications
On January 19, SBA published a Direct Final Rule clarifying and providing technical updates to the SBIC Investment Diversification and Growth final rule implemented on August 17, 2023, reducing barriers to program participation for new SBIC fund managers and funds investing in underserved communities and geographies, capital intensive investments, and technologies critical to national security and economic development. This direct final rule is intended to help SBA implement Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, by reducing financial and administrative barriers to participate in the SBIC program and modernizing the program’s license offerings to align with a more diversified set of private funds investing in underserved small businesses. The Direct Final Rule is available here and will be effective March 4, 2024. Comments close February 20, 2024.
International Development Finance Corporation (DFC) Proposed Rule Correction: Nonprocurement Suspension and Debarment
On January 22, DFC published a correction to the Proposed Rule, “Nonprocurement Suspension and Debarment.” The correction removes the word, “None,” and adds, “First-tier procurements (i.e., primary contracts) under a covered nonprocurement transaction are covered transactions,” on page 715, in the third column, § 1600.220. The correction is available here and is effective as of January 22, 2024.
Federal Acquisition Regulation (FAR) Council Notice: Improper Business Practices and Personal Conflicts of Interest
On January 17, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a Notice and request for comments regarding the information that offerors and contractors must submit to comply with FAR Part 3. The FAR Council specifically requests comments and collects information on the requirements regarding Certificate of Independent Price Determination, Anti-Kickback Procedures, Contractor Code of Business Ethics and Conduct, and Preventing Personal Conflicts of Interest. The Notice is available here. Comments close March 18, 2024.
General Services Administration (GSA) News Release: GSA Announces First EVSE Companies to Receive FedRAMP Approval, Furthering Biden-Harris Administration Goals for Clean Transportation Future
On January 19, GSA announced that GSA finalized authorizations for the first two electric vehicle supply equipment (EVSE) vendors, Chargie and ChargePoint, to operate inside government systems. This will allow them to become FedRAMP authorized, which gives assurance to federal agency partners that electric vehicle charging stations have their security measures fully vetted and authorized through the agency’s blanket purchase agreement. These actions will help accelerate the nation’s clean transportation future through President Biden’s Investing in America agenda. Read more here.
Supreme Court Appears Ready to End Deference to Federal Agency Expertise, Government Executive
The Supreme Court appears poised to strip away at least some of the discretion federal agencies enjoy in interpreting and implementing federal law after hearing challenges to a decades-old doctrine that the judicial branch should defer to the executive when provisions of law are unclear. Read more here.
Upcoming Government Contracts Presentations
PM WEBINAR: PilieroMazza Annual Review: Key Insights from Recent Bid Protest Decisions Reshape Strategies for Future Government Contractor Success, February 8, 2024, Katherine B. Burrows, Eric Valle. Read more here.
Successor Government Contractor Hiring Obligations Change: DOL’s Long Awaited Nondisplacement Rule Effective February 12, 2024, January 17, 2024, PilieroMazza Webinar Replay, Nichole D. Atallah, Sarah L. Nash. Click here to view the recorded session.
Department of Labor (DOL) Proposed Rule: National Apprenticeship System Enhancements
On January 17, DOL published a Notice of Proposed Rulemaking intending to enhance worker protections and equity, revise state governance provisions, and clearly establish critical pipelines to registered apprenticeship programs. The proposed rule would improve the capacity of the National Apprenticeship System to respond to evolving employer needs, provide workers equitable pathways to good jobs, and increase the system’s long-term resilience. The Proposed Rule is available here. Comments close March 18, 2024.
Upcoming Labor & Employment Presentations
Gen Digital’s $1.6M False Claims Act Loss Upped to $53M, Law360
A D.C. federal judge partially granted a request by the federal government to amend a judgment in a whistleblower False Claims Act case against Gen Digital Inc. for its alleged overcharges, scrapping a $1.6 million damages award and replacing it with a $53 million judgment. Read more here (subscription required).
Feds Sole-Sourced $134M Deal to Suspect Co., Supplier Says, Law360
A fuel supplier blasted the Defense Logistics Agency for sole-sourcing a $134 million contract to a company accused by the supplier, in a separate, ongoing lawsuit, of orchestrating a contract fraud scheme straight out of a movie. Read more here (subscription required).
Experts Expect Some Support for Small Businesses Facing CMMC Compliance, NextGov/FCW
The Pentagon’s draft CMMC rule doesn’t exempt small firms from the security standards for defense contractors and subcontractors, but that doesn’t mean they won’t receive any help meeting the requirements. Read more here.
New NIST Special Publication Refines Guidelines for Organizational Cybersecurity Infrastructure Evaluation, ExecutiveGov
NIST launched a solicitation for public comment for its draft guidance, which can be implemented alongside the institute’s Cybersecurity Framework. Read more here.