Weekly Update for Government Contractors and Commercial Businesses – September 15, 2022

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GOVERNMENT CONTRACTS

SBA Seeks Comments on Proposed Updates to the 8(a) Program and Many Other Government Contracting Programs, 09.14.22, Jon Williams
On September 9, 2022, the Small Business Administration (SBA) published a proposed rule that would make many significant changes to SBA’s 8(a) program requirements, the Women-Owned Small Business and HUBZone programs, subcontracting, protests, and more. Public comments on SBA’s proposals are due by November 8, 2022. Government contractors that participate in any of SBA’s small business programs should take note of the proposed changes and consider whether to address them through public comment. Read more here.

Time Is Running Out: Federal Contractor Data at Risk of Public Disclosure Unless Objections Are Filed by Monday, 09.13.22, Kevin Barnett and Dozier Gardner
On August 19, 2022, the Department of Labor’s Office of Federal Contract Compliance Programs published a public notice to contractors about a Freedom of Information Act request from the Center for Investigative Reporting for all EEO-1 Reports submitted between 2016–2020. Even though your company was not contacted directly, if your company filed an EEO-1 Report during that period, you must object to the disclosure by next Monday, September 19, 2022, or risk public release of sensitive information about your workforce. This client alert summarizes key points of the notice, including what information is at risk of being disclosed and how government contractors can protect their information. Read more here.

GSA Announces First Public Meeting of Advisory Committee to Address Climate and Sustainability in Federal Buying
The General Services Administration (GSA) announced that it is hosting the first GSA Acquisition Policy Federal Advisory Committee public meeting on September 22, 2022, from 1 p.m. to 4 p.m. EDT. The Committee’s initial focus will be on driving regulatory, policy, and process changes to embed climate and sustainability considerations in federal acquisition. This includes recommending steps GSA can take to support its workforce and industry partners in ensuring climate and sustainability issues are fully considered in the acquisition process. Read more here.

HSAR: Coast Guard Contract Termination Policy
The Department of Homeland Security is proposing to amend the Homeland Security Acquisition Regulation to add a new subpart and new contract clause to establish contract termination policy for the Coast Guard and amend a clause to address the applicability of the Coast Guard’s contract termination policy to commercial items. Comments on the proposed rule are due November 7, 2022. Read more here.

Acquisition, Sustainment Office Supports Microelectronics Vision
The Department of Defense published its one-year supply chain report, which focuses on addressing challenges in high-priority areas critical to operational readiness, including a central component in nearly all advanced military capabilities. Read more here.

Private Security Contractors Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises
The Department of Defense (DOD) finalized administrative updates and made clarifications to its regulations regarding private security contractors performing duties while under contract to DOD in support of contingency operations, humanitarian or peace operations, or other military operations or exercises. The final rule is effective October 11, 2022. Read more here.

GSAR: Single-Use Plastics and Packaging
The General Services Administration published an advance notice of proposed rulemaking on July 7, 2022, seeking public feedback pertaining to the use of plastic consumed in both packaging and shipping, as well as other single-use plastics for which the agency contracts. The deadline for submitting comments on the advance notice of proposed rulemaking has been extended from September 6, 2022, to September 27, 2022. Read more here.

Upcoming Government Contracts Presentations

WEBINAR: Scorecard-Based Bids (Polaris, OASIS+, JETS 2.0, and others) Lessons Learned and Strategies, September 20, Cy Alba. Read more here.

EVENT: Small Business Policy and Legal Update, October 6, Jon Williams. Read more here.

WEBINAR: Cybersecurity Compliance: Changing Requirements for Evolving Threats, October 14, Jon Williams. Read more here.

WEBINAR: Update on DOT’s DBE Program for Construction Contractors, October 19, Jackie Unger. Read more here.

WEBINAR: Administration, November 2, Cy Alba. Read more here.

EVENT: Labor and Employment for Government Contractors, November 4, Nichole Atallah. Read more here.

WEBINAR: Small Government Contractors and the FCA: Is More Enforcement on the Horizon?, November 8, Jackie Unger and Matt Feinberg. Read more here.

WEBINAR: 5 W’s of Bid Protests: The Who, What, When, Where, and Why, November 10, Katie Burrows and Eric Valle. Read more here.

LABOR & EMPLOYMENT

GSA Opens Doors to Union Organizers on Federal Contracts: What Contractors Need to Know, 09.12.22, Sarah Nash and Nichole Atallah
On September 2, 2022, the General Services Administration (GSA) issued a final rule regarding union access to GSA facilities. The changes, which are effective immediately, come following a White House Task Force on Worker Organizing and Empowerment recommendation for GSA to except union organizing and bargaining from the GSA’s general prohibition on soliciting, posting, and distributing materials in GSA-controlled property. While the previous version of the regulations included an exception for union organizer access to federal employees, there was no such exception for federal contractor workforces. Because the rule relates to agency management and personnel, it is exempt from advance notice-and-comment requirements. This client alert discusses important reminders to keep contractors on the right side of potential solicitation and organizing issues. Read more here.

Standard for Determining Joint-Employer Status
The National Labor Relations Board (NLRB) is proposing to rescind and replace the final rule entitled “Joint Employer Status Under the National Labor Relations Act,” which was published on February 26, 2020, and took effect on April 27, 2020. NLRB’s proposed rule would revise the standard for determining whether two employers, as defined in section 2(2) of the National Labor Relations Act (NLRA), are joint employers of particular employees within the meaning of section 2(3) of the NLRA. According to the NLRB, the proposed changes are designed to explicitly ground the joint-employer standard in established common-law agency principles and provide relevant guidance to parties covered by the NLRA regarding their rights and responsibilities when more than one statutory employer possesses the authority to control or exercises the power to control particular employees’ essential terms and conditions of employment. Comments on the proposed rule are due November 7, 2022. Read more here.

SBA, DOL, NLRB, FMCS Join Forces in Historic Collaboration, Launch New Digital Toolkit to Empower Workers and Promote Benefits of Equitable Labor-Management Partnerships
The Small Business Administration—in collaboration with the Department of Labor, the National Labor Relations Board, and the Federal Mediation and Conciliation Service—released a first-of-its-kind digital toolkit for employers seeking guidance on responding to their employees who are interested in exercising their right to form or join a union. The digital toolkit highlights the mutual benefits to employers and workers of labor-management partnerships and collective bargaining, in addition to providing a slew of resources—through partner agencies—including information on navigating workplace issues, working together to protect worker organizing, establishing labor-management partnerships, respecting workers’ freedom to choose union representation, and addressing concerns of small businesses. Read more here.

Upcoming Labor & Employment Presentations

EVENT: Labor and Employment for Government Contractors, November 4, Nichole Atallah. Read more here.