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House Passes $460 Billion Package of Spending Bills. Senate Expected to Act Before Shutdown Deadline, Federal News Network
The House passed a $460 billion package of spending bills Wednesday that would keep money flowing to key federal agencies through the remainder of the budget year. The Senate is expected to take up the legislation before a midnight Friday shutdown deadline. Read more here.
Decoding the 2024 NDAA: Implications for Defense Contractors Small and Large, PilieroMazza Blog, Lauren Brier, Isaias “Cy” Alba, IV
The National Defense Authorization Act (NDAA) for Fiscal Year 2024 (FY24), signed into law on December 22, 2023, signals significant changes across the defense acquisition and contracting landscape. These changes are poised to reshape how the Department of Defense (DOD) engages with contractors, emphasizing transparency, accountability, and fairness. PilieroMazza examines key themes and provisions in the NDAA that DOD government contractors (small and large) should know to take advantage of contract opportunities and maintain compliance requirements. Read more here.
DOD Calls for More Contracting Flexibilities in 2025 NDAA, Federal News Network
Pentagon officials are asking Congress to give more contracting flexibilities, address recruitment challenges in the 2025 NDAA. As Congress prepares to draft the 2025 National Defense Authorization Act, defense officials are asking lawmakers to include provisions that will enable greater flexibility in contracting procedures. Read more here.
Federal Trade Commission (FTC) Final Rule: Trade Regulation Rule on Impersonation of Government and Businesses
On March 1, FTC published a Final Rule prohibiting the impersonation of government, businesses, and their officials or agents in interstate commerce. The objective of this final rule is to make available a shorter, faster, and more efficient path for recovery of money for injured consumers directly through federal court action in Commission enforcement actions involving impersonation of government or business. Further, the rule would deter illegal impersonation and allow for the imposition of civil penalties, where appropriate. The objective of this final rule is to make available a shorter, faster and more efficient path for recovery of money for injured consumers directly through federal court action in Commission enforcement actions involving impersonation of government or business. The rule would deter illegal impersonation and allow for the imposition of civil penalties, where appropriate. The Final Rule is available here and will be effective April 1, 2024.
Small Business Administration (SBA) Press Release: SBA Announces Statutory Increases for Surety Bond Guarantee Program
On February 26, SBA Administrator Isabel Casillas Guzman announced that the SBA is increasing the statutory contract limits for the Surety Bond Guarantee Program (SBG). This regulatory change is expected to increase revenue opportunities through contracting for small businesses, supporting job creation and economic growth. Read more here.
Federal Acquisition Regulation (FAR) Council Notice: Combating Trafficking in Persons
On February 27, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration published a Notice and request for comments about the information that offerors and contractors must submit to comply with FAR 52.222-50, Combating Trafficking in Persons, and 52.222-56, Certification Regarding Trafficking in Persons Compliance Plan. The Notice is available here. Comments close April 29, 2024.
General Services Administration (GSA)
- Notice: Federal Funding Accountability and Transparency Act Sub-Award Reporting System Registration Requirements for Prime Grant Awardees: On February 29, GSA published a Notice and request for comments about the Federal Funding Accountability and Transparency Act requiring information disclosure of entities receiving Federal financial assistance through federal awards such as federal contracts, sub-contracts, grants, and sub-grants. The Notice is available here. Comments close April 29, 2024.
- Memorandum: Supplement 4 – Temporary Moratorium on Enforcement of Certain Limitations Contained in Certain GSA Economic Price Adjustment (EPA) Contract Clauses: On February 27, GSA issued a memorandum extending the moratorium provided in Acquisition Letter MV-22-02 from March 31, 2024, to December 31, 2024. On March 17, 2022, Acquisition Letter MV-22-02 was issued to provide a temporary moratorium on the enforcement of certain limitations contained in certain GSA EPA contract clauses. Supplement 1 was issued to extend the temporary moratorium from September 30, 2022, to March 31, 2023. Supplement 2 was issued to extend the temporary moratorium from March 31, 2023, to September 30, 2023. Supplement 3 was issued to extend the temporary moratorium from September 30, 2023, to March 31, 2024. This extension is to provide time for the publication of a final rule for the resultant implementation of a new economic price adjustment clause for the Multiple Award Schedule program. The full memorandum is available here.
- Blog: Redesigned Site for Secure Cloud Products Helps Agencies Easily Find Products They Need: Recently, the FedRAMP team redesigned the website that agencies use to find secure cloud products, making it much more streamlined, flexible, and intuitive. Agencies can more easily find and understand which cloud products have already been reviewed and authorized for use by agencies, so that they can use them without having to do their own review from scratch, saving time and resources and reducing burden while also building better digital experiences for the public. Read more here.
Department of Defense (DOD) Memoranda:
- Class Deviation, Prohibition on Required Disclosure of Information Relating to Greenhouse Gas Emissions: On February 25, DOD issued a memorandum, effective immediately, prohibiting, as a condition of contract award, DOD contracting officers from requiring certain defense contractors to disclose or report a greenhouse gas inventory unless an exception or waiver applies. Contracting officers shall not consider, as a condition for award, greenhouse gas emission information that may otherwise be provided in annual representations and certifications per the Federal Acquisition Regulation provisions. The full Memorandum is available here.
- Single-Use Local Provision and Clause Numbering Format: On February 27, DOD issued a memorandum, effective immediately, requiring Contracting Officers issuing new solicitations or awards to number any single-use local provisions/clauses used according to the format in Attachment 1. Contracting officers modifying existing contracts shall only implement the number format when adding a new single-use local clause to the contract; there is no requirement to re-number existing single-use local clauses through contract modification. Clause numbers for single-use local provisions/clauses need not be globally unique across all contracts, but they must be unique within a given contract. The full Memorandum and Attachment 1 are available here.
DOD Dispelling Lingering Myths About OTAs, Federal News Network
HigherGov, a government market intelligence company, estimates that DOD had over 1,200 active OTAs worth about $23.6 billion. Despite the increasing growth, misconceptions around OTAs still linger, said Bonnie Evangelista, the DOD’s chief data and AI officer’s acting deputy for acquisition directorate, at the Advantage DOD 2024 symposium. Read more here.
House of Representatives (H.R.), Small Business Committee Reports
In February 2024, the following H.R. Bills were reported by the House Committee on Small Business:
- H.R. 5450: This Bill amends the Small Business Act to modify the application of price evaluation preference for qualified HUBZone small business concerns to certain contracts. The full Bill text, as reported in the House, is available here.
- H.R. 6591, Encouraging Success Act: This Bill amends section 8(a) of the Small Business Act to require the Administrator of the Small Business Administration (SBA) to regularly reassess the asset and net worth thresholds for qualifying as an economically disadvantaged individual. This bill requires the SBA to periodically revise, based on economic changes, the maximum total assets and net worth an individual may have to qualify as an economically-disadvantaged individual under the 8(a) Business Development program. The full Bill text, as reported in the House, is available here.
- H.R. 7103, Agency Accountability Act of 2024: This Bill amends the Small Business Act to require federal agencies to testify and report on scores received under the scorecard program for evaluating federal agency compliance with small business contracting goals, to testify for failure to meet governmentwide contracting goals. The full Bill text, as reported in the House, is available here.
- H.R. 7128, The WOSB Integrity Act of 2024: This Bill establishes requirements relating to size standard compliance of small business concerns owned and controlled by women for certain purposes. This bill modifies the authority of federal agencies to limit competition for certain government contracts to women-owned small businesses (WOSB) under certain circumstances. The bill specifies that certification as such a small business includes compliance with the applicable size standards under current law. A WOSB that is certified as of enactment of this bill may continue to qualify for such contracts until the business notifies the Small Business Administration (SBA) that it is no longer such a small business or the SBA determines the business exceeds the applicable size standards. The full Bill text, as reported in the House, is available here.
House of Representatives (H.R.), Passed in House:
- H.R. 3511, Service-Disabled Veteran Opportunities in Small Business Act: On February 28, H.R. 3511 passed in the House. This bill requires the Small Business Administration (SBA) to provide employees at any federal agency that has not met the goal of awarding at least 3% of its prime contracts and subcontracts to small businesses owned by service-disabled veterans with training to increase the number of such contracts awarded. The full Bill text is available here.
- H.R. 5265, Small Business Administration Rural Performance Report Act: On February 28, H.R. 5265 passed in the House. This bill requires the Small Business Administration (SBA) to report on its efforts to promote businesses and agricultural economies in rural areas. Specifically, the SBA must report about the activities of the Office of Rural Affairs, including how the office is promoting the availability of financial assistance for small businesses in rural areas. The full Bill text is available here.
Upcoming Government Contracts Presentations
CONFERENCE: Strategic Moves: Key Tactics for Seamless 8(a) M&A Transactions, Abigail “Abby” L. Baker, Isaias “Cy” Alba, IV, March 11, 2024. Read more here.
WEBINAR: Legal Strategies & Capture Planning, Isaias “Cy” Alba, IV, March 15, 2024. Read more here.
TRAINING: Legal Considerations When Supporting OCONUS Contracts, Isaias “Cy” Alba, IV, March 19, 2024. Read more here.
WEBINAR: Mergers & Acquisitions in Government Contracting: Novations and Recertification, Abigail “Abby” L. Baker, Cole R. Fox, March 20, 2024. Read more here.
WEBINAR: FAR Part 17: Special Contracting Methods, Isaias “Cy” Alba, IV, March 22, 2024. Read more here.
WEBINAR: Unlocking the Secrets of Debriefings, Government Evaluation of Proposals and Protests, Katherine B. Burrows, Eric Valle, March 28, 2024. Read more here.
NATIVE AMERICAN LAW & TRIBAL ADVOCACY
H.R. 7102, Native American Entrepreneurial Opportunity Act, Passed House
On February 29, H.R. 7102 passed in the House and has been sent to the Senate for consideration. This Bill establishes an Office of Native American Affairs within the Small Business Administration. The office must establish a working relationship with Indian tribes and Native Hawaiian organizations by targeting SBA programs relating to entrepreneurial development, contracting, and capital access to (1) establish or expand small businesses owned and controlled by individuals who are members of Indian tribes or Native Hawaiian organizations, and (2) promote economic development in Indian country. The full text of the Bill is available here.
Department of Labor (DOL) Webinar: Constructing Equity, Empowering Women in Construction
On March 6, DOL will hold a webinar in recognition of Women in Construction week, for women in construction to learn about DOL resources, career pathways, and federal protections available to women in nontraditional occupations. Registration is available here.
FALSE CLAIMS ACT / AUDITS & INVESTIGATIONS / LITIGATION & DISPUTE RESOLUTION
GAO Says DOD Needs Data Analytics to Improve Contract Fraud Detection, Investigation, ExecutiveGov
The Government Accountability Office included the Department of Defense’s contract management practices in its high-risk list after finding gaps in its handling of potentially fraudulent vendors. Read more here.
DOD Watchdog Flags Increased Emphasis on Contract Fraud, Law360
The Department of Defense’s internal watchdog has been expending more effort to fight procurement fraud, in “a shift” from healthcare fraud being the primary focus for federal investigators, according to Inspector General Robert Storch. Read more here (subscription required).
House of Representatives (H.R.), Small Business Committee Reports
In February 2024, H.R. 7129, Put America on Commission Act of 2024, was reported by the House Committee on Small Business. This Bill amends the Small Business Act to establish the Office of Whistleblower Awards. The full Bill text, as reported in the House, is available here.
Department of Defense (DOD) Office of Inspector General (OIG) Report: Audit of DOD Afghanistan Contingency Contracts Closeout
On February 26, DOD OIG released a report of an audit to determine whether DOD contracting officials closed out contingency contracts supporting Afghanistan operations per federal and DOD guidance. OIG found that, for the 30 contracts reviewed, contracting officials did not close out 75% of the closed contracts and will not close out 40% of the open contracts because of delays with Defense Contract Audit Agency (DCAA) audits, requests for equitable adjustments, changes to contracting personnel, contracting system errors, failure to track contracts that need to be closed, internal policies not compliant, and competing priorities with multiple closeouts occurring at once. OIG found that contracting officials did not complete all closeout steps or include the required contract closeout statement in the contract file for 50% of the closed contracts because of contract age, contracting personnel rotations, and limited documentation included in the contract files to complete all contract closeout actions. The full report is available here.
Upcoming False Claims Act Presentations
PM WEBINAR: PilieroMazza Annual Review: What DOJ’s Annual FCA Report Means for Government Contractors, Matthew E. Feinberg, Jacqueline K. Unger, March 13, 2024. Read more here.
CORPORATE & ORGANIZATIONAL GOVERNANCE
Focus on S Corporations, Part 2: Inadvertent Termination of S Corporation Elections, PilieroMazza Blog, Abigail “Abby” L. Baker, Paul H. Tracy
The IRS recently provided guidance addressing inadvertent terminations of S Corporation (S Corp) status based on existing provisions in corporate documents that remain after a company makes an S Corp election. This can be a complex legal task that aims to harmonize documents for clarity and consistency in their interpretation and application. In this Part 2 of the blog series “Focus on S Corporations,” PilieroMazza offers guidance to businesses on how to make corrections after an S Corp election to properly safeguard personal and business assets from significant monetary and compliance risks. Visit this link for Part 1 in the blog series. Read more here.
Securities and Exchange Commission (SEC) Final Rule: Supplemental Standards of Ethical Conduct for Members and Employees of the Securities
On February 28, SEC published a Final Rule prohibiting employee ownership of sector funds that have a stated policy of concentrating their investments in entities directly regulated by SEC; revising transaction and reporting requirements for certain assets that pose a low risk of conflicts of interest or appearance concerns; permitting employees to comply with reporting obligations by authorizing their financial institutions to transmit information on behalf of employees about their covered securities transactions and holdings data through an approved automated compliance system; clarifying that the limitation on purchasing securities that are part of an initial public offering (IPO) until seven days after the IPO also applies to direct listings of securities; correcting certain technical matters; and adjusting its transaction and reporting requirements to provide the flexibility necessary to implement an automated compliance system. The Final Rule is available here and will be effective March 29, 2024.
Agencies Need to Beef Up Sexual Harassment Training for Employees, GAO says, Government Executive
Selected federal agencies and components of the Defense Department have only partially implemented an array of training practices aimed at preventing sexual harassment and do not sufficiently evaluate the effectiveness of their existing training programs, the watchdog found. Read more here. Visit this link to view PilieroMazza’s available Labor & Employment training sessions for government contractors. Please contact [email protected] for more information.
Virginia Passes $15 Wage, Pay Transparency Bills Yet Veto Likely, Bloomberg Law
Virginia lawmakers narrowly passed Democrat-backed $15 minimum wage bills and a measure to require that employers include pay ranges in job ads, sending them to the desk of Republican Gov. Glenn Youngkin where they meet a questionable fate. Read more here (subscription required).
Upcoming Labor & Employment Presentations
CONFERENCE: From Compliance to Competitiveness: Revamped DBA Rule Reshapes Labor Landscape for Construction Contractors, Nichole D. Atallah, Sarah L. Nash, March 11, 2024. Read more here.
CONFERENCE: Panel: A Focus on Legal Policy, Nichole D. Atallah, March 14, 2024. Read more here.
PM WEBINAR: New Wave of Pay Transparency Requirements Affects Employers and Federal Contractors, Sarah L. Nash, Sara N. Strosser, April 4, 2024. Read more here.
Executive Office of the President Executive Order (EO) 14117: Bulk Sensitive Personal Consumer Data and U.S. Government-Related Data; Preventing Access by Countries of Concern
On March 1, the Executive Office of the President published EO 14117 to expand the scope of the national emergency declared in EO 13873, Securing the Information and Communications Technology and Services Supply Chain, and EO 14034, Protecting Americans’ Sensitive Data from Foreign Adversaries. Countries of concern can use their access to Americans’ bulk sensitive personal data and United States Government-related data to track and build profiles on United States individuals, including Federal employees and contractors, for illicit purposes, including blackmail and espionage. The EO is available here.
National Institute of Standards and Technology (NIST) Webinar: Overview of the NIST Cybersecurity Framework (CSF) 2.0 Small Business Quick Start Guide
On March 20, NIST will hold a webinar providing an overview of the Small Business Quick Start Guide and CSF 2.0 resources. As a supplement to the CSF 2.0, the new Small Business Quick Start Guide provides small-to medium-sized businesses with resources and considerations to kick-start their cybersecurity risk management strategy using the CSF 2.0. Registration is available here. More information is available here.
DOD Issues Memo on Cybersecurity Activities for Cloud Service Offerings, ExecutiveGov
The Department of Defense has released a memorandum detailing its policy, responsibilities and procedures for performing defensive cyberspace operations and other cybersecurity activities for cloud service offerings. Read more here.
Energy to Fund 16 Infrastructure Cybersecurity Projects, Government Executive
On February 26, the White House’s cybersecurity strategy implementation plan asks the Department of Energy (DOE) to identify pilot projects for energy infrastructure security. The DOE announced a $45 million investment into 16 projects dedicated to shoring up cybersecurity across the electric grid and other energy infrastructure. Read more here.
White House Press Release: Fact Sheet, ONCD Report Calls for Adoption of Memory Safe Programming Languages and Addressing the Hard Research Problem of Software Measurability
On February 26, the Office of the National Cyber Director (ONCD) published a technical report entitled, “Back to the Building Blocks: A Path Toward Secure and Measurable Software.” The report builds upon the President’s National Cybersecurity Strategy in describing the urgent need to address undiscovered vulnerabilities that malicious actors can exploit. The report outlines two strategic approaches to achieve the goal. Read more here. The full report is available here.
NIST Expands Cyber Framework to Sectors Beyond Infrastructure, Bloomberg Law
A long-awaited update to the National Institute of Standards and Technology’s Cybersecurity Framework expands the guidance’s scope to address a broader swath of cyber professionals working in sectors beyond critical infrastructure. Read more here (subscription required).
Revamped Cybersecurity Guidance Is Map for Regulators, Companies, Bloomberg Law
Expanded Commerce Department cybersecurity guidance could yield a sweeping “Rosetta Stone” of digital security for regulators, as well as a compliance blueprint for a wide array of entities with a history of questionable network security practices. Read more here (subscription required).