Key Ruling on Native American Sovereign Immunity Stands—for Now, September 13, 2019, Paul Mengel
The Fourth Circuit case Williams v. Big Picture Loans is being hailed as a major victory for Native American sovereign immunity rights. For entities owned by Native American tribes, the case stands as an important ruling for determining arm-of-the-tribe sovereign immunity. The case may be appealed to the Supreme Court. [Read More]
DOD Needs to Fully Implement Program for Piloting Open Source Software
Open source software is code that is released under a license which grants users the right to modify, share, and reuse the software. Making code available for reuse as open source can have major benefits such as decreasing costs and improving efficiencies. The National Defense Authorization Act for Fiscal Year 2018 required the Department of Defense (DOD) to submit a plan to Congress for initiating the open source software pilot program established by Office of Management and Budget (OMB) memorandum M-16-21. The Government Accountability Office (GAO) released a report titled “Information Technology: DOD Needs to Fully Implement Program for Piloting Open Source Software.” This report found that DOD has not fully implemented an open source software pilot program and related policy requirements. For the requirement of securing data rights and inventory code, DOD issued a memorandum that directs contracting officers to secure data rights and to identify all source code created after August 2016. However, DOD’s components have not executed these activities nor has DOD identified a milestone for when they will be completed. Read the full report here.
NLRB Adopts Contract Coverage Standard for Determining Whether Unilateral Changes Violate NLRA
The National Labor Relations Board (NLRB) adopted the “contract coverage” standard for determining whether a unionized employer’s unilateral change in a term or condition of employment violates the National Labor Relations Act (NLRA). In doing so, NLRB abandoned the “clear and unmistakable waiver” standard, which has been rejected by several federal courts of appeals, notably including the Court of Appeals for the District of Columbia Circuit, which has plenary jurisdiction to review NLRB rulings. The decision is M.V. Transportation, Inc. Under the “contract coverage” or “covered by the contract” standard, NLRB will examine the plain language of the parties’ collective-bargaining agreement to determine whether the change made by the employer was within the compass or scope of contractual language granting the employer the right to act unilaterally. If it was, NLRB will honor the plain terms of the parties’ agreement, and the employer will not have violated the National Labor Relations Act by making the change without bargaining. Read more here.
Actions Needed to Improve Planning for Center Operation Contracts
The Department of Labor’s (DOL) Job Corps program helps low-income youth obtain various skills, including those needed to find a job. Its centers are operated mostly by contractors. GAO released a report titled “Job Corps: Actions Needed to Improve Planning for Center Operation Contracts.” This report reviews DOL’s use of bridge contracts at these centers. Such contracts can prevent a lapse in service after a contract ends. However, in certain circumstances, they may increase the risk of government overpaying. The report found that 68 contractor-run centers operated under bridge contracts during program year 2016, but use of bridge contracts decreased substantially the next year. GAO recommends that DOL better plan for awarding center contracts. Read the full report here.
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PODCAST: PilieroMazza’s GovCon Live! presents “Ex Rel. Radio,” our multi-part series on the False Claims Act, which includes commentary on potential pitfalls for your company, enforcement issues, and emerging trends. Check out our latest episode “Building Compliance: Construction Industry Concerns Under FCA” with Sarah Nash and Jon Williams, which went live on August 19th. [Read More]
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5 Things Government Contractors Should Know About Task Order Protests, September 11, 2019, Michelle Litteken
With the fiscal year coming to a close, federal agencies are issuing notices of award and disappointed offeror letters. Because of the push toward category management and the growth in government-wide acquisition contracts and indefinite delivery, indefinite quantity contracts, many of the procurements involve task orders. Although a task order may be similar to a contract in many respects, the rules that apply to protesting the award of a task order are different. Understanding these rules is essential for any government contractor competing for task order awards. Here are five things contractors should know about task order protests. [Read More]
Request to Review Revision and Renewal of Information Collection Requirement Submitted
DOD, the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) issued a notice that submits an information collection requirement regarding changes, change order accounting, and notification of changes to OMB for review and approval. The information collection title is titled “Changes, Change Order Accounting, and Notification of Changes.” This clearance covers the information that contractors must submit to comply with Federal Acquisition Regulation (FAR) part 43 requirements. For acquisitions exceeding the simplified acquisition threshold for dismantling, demolition, or removal of improvements; and constructions, under a fixed-price contract, the contractor must assert its right to an adjustment under this clause within 30 days after receipt of a written change order or the furnishing of a written notice, by submitting to the contracting officer a written statement describing the general nature and amount of proposal, unless this period is extended by the government. Additionally, the contractor, for each change or series of related changes, shall maintain separate accounts, by job order or other suitable accounting procedure, of all incurred segregable, direct costs (less allocated credits) of work, both changed and not changed, allocable to the change. The contractor shall maintain these accounts until the parties agree to an equitable adjustment or the matter is conclusively disposed of under the Disputes clause. Lastly, under these new requirements, if a negotiated research and development or supply contract for the acquisition of major weapon systems or principal subsystems is expected to be $1,000,000 or more, the contractor shall notify the Administrative Contracting Officer in writing if the contractor identifies any government conduct (including actions, inactions, and written or oral communications) that the contractor regards as a change to the contract terms and conditions. Read the published version here.
DOE Has No Assurance That It Took Best Procurement Approach
The Economy Act of 1933 provides authority for federal agencies to acquire goods and services through interagency agreements, if those goods or services cannot be provided as conveniently or at a lower price by commercial enterprises. DOE can enter into two types of agreements: interagency acquisitions and interagency transactions. In both cases, the servicing agency may charge a fee for assistance, such as a percentage of the contract value or an itemized charge for services. In some cases, DOE enters into agreements on behalf of the management and operating contractors that manage its sites. Between fiscal years 2012 and 2017, DOE paid approximately $9.7 billion to other agencies, and the Office of Inspector General initiated an audit to determine whether DOE’s use of interagency agreements complied with applicable regulations and DOE policies. DOE’s Office of Inspector General has released a report titled “Audit Report: DOE-OIG-19-46.” This report determined that DOE has not fully complied with applicable regulations, since—without adequate acquisition planning—DOE may not have acquired goods and services as conveniently or economically as possible by using interagency agreements instead of using a commercial enterprise. Read the full report here.
FAC Final Rules Summary Released
DOD, GSA, and NASA issued a summary presentation of FAR rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in the Federal Acquisition Circular (FAC) 2019-06.
- Item I adopts an interim rule published on June 15, 2018, that prohibits the use of hardware, software, and services developed or provided, in whole or in part, by Kaspersky Lab, a Russian cybersecurity company. The rule also requires contractors to report any such hardware, software, or services discovered during contract performance.
- Item II removes an obsolete requirement for 8(a) contractors to obtain written approval from the Small Business Administration (SBA) and the contracting officer before subcontracting the performance of any contract requirements.
- Item III is a final rule that establishes the Contract Performance Assessment Reporting System as the official system for past contract performance information, and replaces the Past Performance Information Retrieval System.
- Item IV is a final rule that adds Australia as a new World Trade Organization Government Procurement Agreement country.
Read the published version here.
PPIRS References Removed from DFARS
DARS issued a final rule amending the DFARS to update references to the Past Performance Information Retrieval System (PPIRS) for past performance information and replace with Contractor Performance Assessment Reporting System (CPARS) to implement changes following the official retirement of PPIRS and subsequent merger with the CPARS effective January 15, 2019. This rule also amends the DFARS to replace references to “Past Performance Information Retrieval System-Statistical Reporting” with “Supplier Performance Risk System” and update the associated web addresses. Read the published version here.
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SBA Accepting Nominations for National Small Business Week Awards
SBA is now accepting nominations for its 2020 National Small Business Week Awards, including the annual Small Business Person of the Year. For more than 50 years, National Small Business Week has celebrated the inspiring achievements of America’s small businesses and the countless contributions they make to their local communities, and to our nation’s economy. SBA Awards given in celebration of National Small Business Week from May 3–9, 2020. Visit SBA’s website to nominate a deserving small business owner, and learn more here.
SBA Submits Proposed Reporting and Recordkeeping Requirements to OMB
SBA issued a notice submitting proposed reporting and recordkeeping requirements to the OMB for review and approval. The Emerging Leaders Initiative aims to assist established small businesses located in historically challenged communities with increasing their sustainability, attracting outside investment, and strengthening each community’s economic base by creating jobs and providing valuable goods and services. SBA conducts annual performance-monitoring activities to assess the short- and intermediate-term outcomes of participants in the Emerging Leaders Initiative. SBA uses three survey instruments to collect the assessment information from the participants in each training cohort. Read the published version here.