Weekly Update for Government Contractors and Commercial Businesses – March 24, 2022

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GOVERNMENT CONTRACTS

DOD Issues Final Rule Providing Enhanced Postaward Debriefing Rights
The Defense Department (DOD) is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2018 that provides enhanced postaward debriefing rights under negotiated contracts, task orders, and delivery orders. Read the final rule here.

DOD Amends DFARS To Allow Closeouts Of Some Completed Contracts Through Modification
The Defense Department (DOD) is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 820 of the National Defense Authorization Act for Fiscal Year 2021. Section 820 authorizes DOD contracting officers to close out certain physically complete contracts or groups of contacts through modification of such contracts, without completing the requirements of Federal Acquisition Regulation (FAR) 4.804-5(a)(3) through (15). Read the final rule here.

DOD Amends DFARS To Remove Burden Of Proof For Employing Or Subcontracting With Selective Reserve Members
The Defense Department (DOD) is issuing a final rule that amends the DFARS to implement section 821 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021. Section 821 removes the burden of proof at 10 U.S.C. 2305 when using an evaluation factor for employing or subcontracting with members of the Selected Reserve. Read the final rule here.

DOD Adds Lithuania As A Qualifying Country
The Defense Department (DOD) is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to add Lithuania as a qualifying country. A qualifying country is a country that has a reciprocal defense procurement agreement or memorandum of understanding with the United States in which both countries agree to remove discriminatory barriers to purchases of supplies produced in the other country or services performed by sources of the other country. Read the final rule here.

DOD Proposes Rule To Align DFARS With Revised Definition Of Commercial Item
The Defense Department (DOD) is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the revised definition of “commercial item” in accordance with the John S. McCain National Defense Authorization Act for Fiscal Year 2019. That statute bifurcated the definition of “commercial item” into “commercial product” and “commercial service.” Read the proposed rule here.

GSA Is Getting Ready To Ditch DUNS Numbers And Start Using Unique Entity Identifiers
On April 4, the General Services Administration (GSA) will start using the new nonproprietary unique entity identifier (UEI) system for federal contracting purposes. This 12-digit alphanumeric identifier will replace the proprietary DUNS number in federal contracting systems. Read more here.

Former OFCCP Administrator Suggests Ways To Increase Post-Award Contract Management
The federal procurement system devotes a great deal of energy and regulatory language to requirements development and source selection but not enough to post-award contract management, says former OFCCP Administrator Steve Kelman. He makes recommendations for change. Read more here.

GSA Announces Two Presidential Appointments At Agency
Two additional presidential appointees have joined the General Services Administration (GSA)—Rebeca Lamadrid as Director for Presidential Innovation Fellows (PIF) and Keyva Clark as Director of Public Engagement. Read the GSA news release here.

Senate Confirms Shalanda Young as OMB Director
The Senate confirmed Shalanda Young as the director of the Office of Management and Budget. Read more here.

DOD Awards Verizon Almost $1 Billion To Modernize its Networks
Verizon landed three Defense Department Enterprise Infrastructure Solutions (EIS) task order awards—worth a combined $966.5 million—to supply enhanced technical support and network modernization services at the Pentagon and elsewhere. Read more here.

IT Funding In Government Spending Bill Appears At Agency Level
Government Executive reported that the $1.5 trillion fiscal year 2022 appropriations bill doesn’t include much big-ticket information technology modernization, but new policies and programs are designed to put money where the problems are. The Technology Modernization Fund did not get a new boost, but the funding bill puts into place new agency-level revolving funds of the type first authorized by the Modernizing Government Technology Act. The Office of Personnel Management, the Departments of Labor, Homeland Security, Treasury, Commerce and Housing and Urban Development are getting multiyear funding for IT modernization and cybersecurity efforts. Read more here.

GAO Finds Bid Protest Untimely, Ruling Protestor Should Have Accepted Pre-Award Debriefing
GAO dismissed as untimely a protest from Battelle Memorial Institute of Columbus, Ohio, to the selection of Geosyntec Jacobs of San Diego, Calif., as the most highly qualified firm to submit a statement of qualifications in response to synopsis No. N39430-21-R-2201, issued by the Department of the Navy for architect/engineering (A/E) services. Battelle challenged the agency’s evaluation of its own statement of qualifications as unreasonable and argued that it should have been chosen as the most highly qualified firm. GAO concluded that Battelle was required to use the most expeditious approach available to diligently pursue information that may have formed the basis of its protest, which in this case meant accepting the pre-award debriefing. Read the decision here.

Upcoming Government Contracts Presentations

WEBINAR: Selling Your Government Contract Business: Plan Today for a Stronger Tomorrow, Part 1 of 2, March 30, Cy Alba. Read more here.

WEBINAR: Flowdowns, April 6, Cy Alba. Read more here.

WEBINAR: Bidding for Major Contracts? Compliance Requirements You Should Prepare for Now, April 7, Cy Alba and Meghan Leemon. Read more here.

WEBINAR: Joint Venture and Mentor-Protege Bidding Strategies, April 26, Peter Ford and Meghan Leemon. Read more here.

EVENT: Labor Law Impact on Contracts, April 28, Nichole Atallah. Read more here.

WEBINAR: Growth by Acquisition: Important Considerations for Government Contractors, Part 2 of 2, May 18, Cy Alba. Read more here.

LABOR & EMPLOYMENT

The Significance Of Equal Pay Day For Federal Contractors
March 18, 2022, Sara Nasseri and Sarah L. Nash
March 15 marked Equal Pay Day, a day signifying how far into this year women (across all races and ethnicities) had to work to earn what men were paid in 2021. While the topic of pay equity is not new, recently there has been growing momentum on the state and federal levels to strive towards equal pay across genders. We previously wrote about the changing landscape on the pay equity front here. To commemorate Equal Pay Day, the Office of Federal Contract Compliance Programs (OFCCP), the agency responsible for ensuring that federal contractors meet their affirmative action and non-discrimination obligations towards their workforce, issued a new directive. PilieroMazza’s Labor & Employment Group discusses the implications for federal contractors. Read more here.

WHD Proposes Updates To The Davis-Bacon Act
The Labor Department’s Wage and Hour Division (WHD) is proposing a rule that amends regulations issued under the Davis-Bacon and Related Acts that apply to federal and federally assisted construction projects. WHD is proposing this first comprehensive regulatory review in nearly 40 years to make the rules clearer and more useful in the modern economy. Read the proposed rule here.

Biden Instructs FAR Council To Consider Rule To Limit Or Prohibit Federal Contractors From Asking About Salary History
The Biden administration issued an executive order instructing the Federal Acquisition Regulatory (FAR) Council to consider issuing proposed rules to limit or prohibit federal contractors and subcontractors from seeking and considering information about job applicants’ and employees’ existing or past compensation when making employment decisions. The White House’s goal is to address pay discrimination in federal contracting by limiting the use of salary history in employment decisions. Read more here.

Administration Updates COVID Guidance For Federal Contractors
The Biden administration’s Safer Federal Workforce Task Force updated the COVID-19 guidance covering onsite contractors’ entry to federal facilities. If a contractor employee is regularly tested pursuant to an agency testing program, they do not need to provide proof of a negative COVID-19 test from within the previous three days when in a federal facility unless required to by the agency testing program, according to the update. Read the Government Executive article here.

OFCCP Explains How It Will Evaluate Contractors’ Compliance With Pay Equity Audit Obligations
The Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive to provide guidance on how OFCCP will evaluate federal contractors’ compliance with pay equity audit obligations. The goal is to address and prevent pay disparities based on gender, race, ethnicity, and other factors. The Labor Department will consult with the FAR Council on how to implement any subsequent rulemaking that affects federal contractors, according to a White House fact sheet.

DOL Sues Ophthalmologist For Allegedly Firing Employee Who Complained Of Office’s Failure To Implement COVID-19 Protocols
The Labor Department sued Dr. David Kwiat, a New York ophthalmologist, and Kwiat Eye and Laser Surgery for allegedly firing an employee who raised concerns about the practice’s failure to implement state-mandated COVID-19 protocols. The employee also filed complaints with state health officials. Read more here.

Upcoming Labor & Employment Presentations

EVENT: Labor Law Impact on Contracts, April 28, Nichole Atallah. Read more here.

LITIGATION & DISPUTE RESOLUTION

Freight Carriers Agree To Pay $6.85 Million To Resolve Allegations Of Knowingly Presenting False Claims To DOD
Three freight carriers who contracted with the Department of Defense (DOD) to ship military freight across the country have agreed to pay approximately $6.85 million to resolve allegations that for more than seven years they systematically inflated the weights of their shipments, overcharged DOD, and made false statements to hide their misconduct. Read the Justice Department news release here.