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GAO Confirms Agency Must Consider Experience of Each Partner in a Small Business Joint Venture
Earlier this year, the Government Accountability Office (GAO)—in AttainX, Inc., B-421216, B-421216.2 (Feb. 9, 2023)—clarified that in evaluating the experience of a mentor-protégé joint venture (JV) for a small business set-aside procurement, the agency must evaluate each JV member’s experience individually, as well as any experience of the JV itself. After the decision was issued, the protestor requested GAO reconsider its ruling, alleging the decision contained an error of law. In MiamiTSPi, LLC-Reconsideration, B-421216.3 (May 11, 2023), GAO denied that request in a ruling with significant implications for small business JVs, especially mentor-protégé JVs where the managing member or protégé does not have any experience. The full client alert is available here.
With Just Weeks Until Potential Furloughs, Biden and McCarthy Hold ‘Productive’ Debt Talks
White House and congressional leaders conceded they remain significantly divided on key issues. That would likely require federal employees to either face furloughs or work with only the promise of back pay once the situation was resolved. Agency payments to beneficiaries, states, grantees, contractors and, potentially, their own employees, would be disrupted. The full Government Executive article is available here.
A Debt Ceiling Breach Could Mean the Federal Government Decides Not to ‘Pay Any Government Employees This Week’
Economist Patrick Gourley discusses the potential debt ceiling consequences. The U.S. Treasury Department reached the $31.3 trillion debt ceiling in January, prompting “extraordinary measures” to keep the U.S. from a default. Economic experts predict an unprecedented default as soon as June. Negotiations around the debt limit are slow going, increasing the likelihood of major disruptions to government operations and dire consequences to the world economy. The full Government Executive article and podcast are available here.
An Unnecessary, Counter-Productive Multiple Award Schedule Marketplace Hurdle
The General Services Administration’s (GSA’s) Acquisition Letter MV-22-02, Temporary Moratorium of Certain Limitations Contained in Certain GSA Economic Price Adjustment Contract Clauses (the acquisition letter), is a thoughtful effort to support stakeholders struggling to respond to the impact of inflation on the pricing and availability of commercial products and services via the Multiple Award Schedule (MAS) program. The acquisition letter streamlines processes and eliminates unnecessary “hurdles” in the Economic Price Adjustment (EPA) process. The acquisition letter supports customer agencies, GSA, and MAS contractors in addressing the inflation-driven impracticality of performance and the resulting cancellation of tens of thousands of MAS orders over the last year. The full blog from the Coalition for Government Procurement is available here.
Small Business Lending Company Application Process
The Small Business Administration’s (SBA) Office of Capital Access (OCA) is opening the application period for new Small Business Lending Companies (SBLC) licenses from June 1, 2023, to July 31, 2023, and sharing the process by which interested entities may apply. SBA is not accepting applications for Community Advantage SBLCs at this time; however, qualified entities may apply under the Community Advantage pilot authority until September 30, 2023. The published rule is available here.
Management Report: Continued Improvements Needed in FDIC’s Internal Control Over Contract Documentation and Payment-Review Processes
During the Federal Deposit Insurance Corporation (FDIC) 2021-2022 financial statement audit of the two funds that the FDIC administers (the Deposit Insurance Fund and the Federal Savings and Loan Insurance Corporation Resolution Fund), the FDIC continued to identify issues—what auditors call a “significant deficiency.” These issues related to how the FDIC ensures that its payments to contractors are correct and contracts are sufficiently documented. Read more here. The full GAO report is available here.
Independent Auditors’ Report on SBA’s Fiscal Year 2022 Compliance with the Payment Integrity Information Act of 2019
The Small Business Administration (SBA) did not demonstrate improvements to payment integrity for 7(a) loan guaranty purchases because the improper payment estimate increased between fiscal years 2021 and 2022, and SBA did not publish improper and unknown payment estimates, corrective action plans, and reduction targets within the Agency Financial Report (AFR) and accompanying materials for Payment Protection Program (PPP) loan guaranty purchases and forgiveness activities. SBA indicates that it is committed to reducing the dollar amount of improper payments, ensuring program integrity, and continuing to implement effective risk management procedures in accordance with improper payment legislation. More information is available here. The full report is available here.
Letter from Congress to OMB: Military Spouse Entrepreneurs and Federal Contracting Opportunities
Congress requests the Office of Management and Budget (OMB) make a federal procurement policy change allowing entities to self-identify as U.S. Military Spouse-Owned Business in the Federal Procurement Data System in an effort to support military spouse entrepreneurs. The full letter is available here.
Upcoming Government Contracts Presentations
GSA Pilots Buy Clean Inflation Reduction Act Requirements for Low Embodied Carbon Construction Materials
Marking a major milestone for the Biden-Harris Administration’s industrial decarbonization goals, the U.S. General Services Administration (GSA) announced a pilot of new requirements for the procurement of substantially lower embodied carbon construction materials in GSA projects funded by the Inflation Reduction Act. The full news release is available here. The fact sheet is available here. The requirements are available here.
Republicans Remind the White House They Still Want to Know More About Biden’s Labor Policies for Contractors
President Biden issued an executive order last year requiring project labor agreements for federal construction work. House Republicans alerted the White House they are continuing their oversight of President Biden’s executive order on project labor agreements for federal construction work and are still seeking a briefing on it. The full Government Executive article is available here.
Procedures for Previously Exempt State and Local Government Employee Complaints of Employment Discrimination Under Section 304 of the Government Employee Rights Act of 1991
The Equal Employment Opportunity Commission (EEOC) is proposing to amend its existing regulations by which state and local government employees, who were previously exempt from coverage under Title VII of the Civil Rights Act of 1964, may bring claims of employment discrimination pursuant to the Government Employee Rights Act of 1991. The EEOC proposes to amend the regulations to explicitly provide for digital transmission of documents, to update the regulation based upon the text of other regulations or statutes, and to make a number of editorial revisions to improve clarity and correct errors. The published proposed rule is available here. Comments are due July 18, 2023.
Department of Labor, Permaswage Reach Agreement to Resolve Gender Pay Discrimination, Disability Discrimination at Gardena, California Facility
The Department of Labor (DOL) reached a settlement agreement with a federal contractor that manufactures aircraft components for several federal agencies and the U.S. military, after DOL found systemic pay discrimination affecting female employees and disability discrimination at its Gardena, California facility. The full DOL news release is available here.
Priority Open Recommendations: Department of Labor
In May 2023, the Government Accountability Office (GAO) identified one additional priority recommendation for the Department of Labor (DOL), bringing the total number to 11. These 11 recommendations involve the following areas: stronger protections for wage earners, enhancing unemployment insurance; and protecting sensitive information. More information is available here. The full GAO report is available here.