Georgia Tech Procurement Assistance Center

OMB releases guidance related to small business goals

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The Office of Management and Budget (OMB) released guidance on December 2, 2021, implementing Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities through the Federal Government” (EO).  The EO directs agencies to readily make available federal contracting opportunities to all eligible vendors and to remove barriers preventing underserved individuals and communities from entering into procurement opportunities.

Additionally, President Biden has set a goal to increase the share of contracts awarded to small, disadvantaged businesses (SDBs) to 15% by 2025.  Below are five actions all federal agencies are instructed to take to help increase spending to government contractors in underserved communities.  Small businesses should be attentive to how these actions will result in new opportunities for them in 2022.

Continue reading at:  JD Supra

Are verbal agreements good enough for government contractors?

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Long gone are the days of verbal agreements over a friendly handshake.  Now a contractor needs a written contract to ensure payment for services rendered.  However, what if no paperwork exists proving the client authorized additional work?  Can a contractor still get paid?  The answer is maybe.  If the contractor can find enough non-documentary evidence to show the person who verbally requested the work has actual authority to enter into contracts on behalf of the client, a contractor may be able to recover payment under an implied-in-fact contract.

What is an implied-in-fact contract?  Implied-in-fact contracts are based on the situation’s facts, circumstances or conduct of the parties involved, which creates an obligation between the two parties.  For example, if a contractor is paid for something each week but it is not in writing, the contractor may be able to claim they have a contract with the other party and a reasonable expectation that they will be paid for their service going forward.

In the below motion against the contractor’s appeal, the Marine Expeditionary Force Training and Experimentation Group within the U.S. Marines’ Advisor Training Cell (Client) motioned the Armed Services Board of Contract Appeals (ASBCA) for a summary judgment, essentially requesting the contractor’s appeal be thrown out.

Continue reading at: JD Supra

OMB issues guidance on impact of injunction on government contractor vaccine mandate

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The Office of Management and Budget has quickly issued guidance on the impact of the recent federal court ruling enjoining the Biden Administration’s federal contractor vaccine mandate.  The guidance, as reported on the Safer Federal Workforce Task Force website, states for existing contracts that include Executive Order 14042 implementing language:

The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order . . .

Continue reading at:  JD Supra

CMMC 2.0 simplifies requirements but raises risks for government contractors

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With the announcement of a revamped Cybersecurity Maturity Model Certification (known as CMMC 2.0), for the third time in five years, the U.S. Department of Defense (DOD) announced new, comprehensive cybersecurity standards for government contractors and subcontractors to ensure the protection of sensitive unclassified information, that is, Federal Contract Information (FCI) and Controlled Unclassified Information (CUI).  By referring to the new cybersecurity standard as CMMC 2.0, the DOD implicitly recognizes the likelihood of future versions at an unknown cost to the Defense Industrial Base (DIB).

Nevertheless, version 2.0, which was released after a seven-month review by the Biden Administration, reflects the DOD’s assessment of the DIB’s concerns and reflects the DOD’s efforts to streamline and improve upon its earlier version after criticisms aimed at its cost and complexity.  Specifically, CMMC 2.0 collapses CMMC 1.0’s five tiers to three simplified tiers that are based on the cybersecurity framework implemented and that are devoid of additional CMMC-unique practices and processes.  CMMC 2.0 also will allow “annual self-assessment with an annual affirmation by DIB company leadership” for Level 1 and part of the new bifurcated Level 2 (formerly Level 3).  Otherwise, an independent third-party assessment or government-led assessment will be required.

Besides CMMC 2.0, contractors with CUI are also required to comply with Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7019 and 252.204-7020.  Collectively, these clauses require contractors to enter their compliance with the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171 into DOD’s Supplier Performance Risk System (SPRS).  DOD will identify medium- and high-risk contracts and perform independent assessments of contractor compliance with NIST SP 800-171 and whether a contractor’s compliance matches what it inputted into SPRS.  Contractors should also be mindful as to whether these disclosures match their prior acceptance of contracts with DFARS 252.204-7012, which required full compliance with NIST SP 800-171.

The return of self-assessment, which was the bedrock of the first DOD cybersecurity standards set out in DFARS 252.204-7012 and whose failure led to the development of CMMC 1.0., creates substantial risks to DIB companies and their leadership.  The U.S. Department of Justice (DOJ) recently announced a new Civil Cyber-Fraud Initiative that emphasized the use of the False Claims Act (FCA), 31 U.S.C. § 3729 et. seq., to bring civil action against government contractors who knowingly misrepresented their cybersecurity practices and protocols.  The FCA allows the government to recover treble damages and permits qui tam suits, which allow whistleblowers to receive a portion of the monies recovered by the government.  In addition, other regulatory agencies have brought enforcement actions for alleged false certifications concerning compliance with agency-required cybersecurity standards.  Thus, the risk of a DOJ investigation or a qui tam suit connected with a DIB company’s self-assessment affirmation is very real, and this announcement – coupled with self-certification options in CMMC 2.0 – should not been seen as a coincidence. Nevertheless, companies can reduce such risks with appropriate cybersecurity policies and a culture of compliance.

Continue reading at:  JD Supra

OFCCP launches contractor portal initiating AAP verification program

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On December 2, 2021, OFCCP announced the launch of its new “Contractor Portal,” which “[c]overed federal contractors and subcontractors (“contractors”) must use … to certify, on an annual basis, whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.”

The Contractor Portal will also serve as a “secure portal for scheduled contractors to submit to OFCCP their Affirmative Action Program(s) during compliance evaluations.”

This development has been years in the making, initiated by a 2016 GAO report criticizing OFCCP for having no process for ensuring contractors were preparing their affirmative action programs (“AAPs”) annually, and comes over three years after former Director Craig Leen announced OFCCP’s intention to create an AAP verification program.

Continue reading at:  JD Supra

Changes coming to DOD’s Cybersecurity Maturity Model Certification under CMMC 2.0

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On November 17, 2021, the U.S. Department of Defense (DOD) published an Advanced Notice of Proposed Rulemaking (ANPRM) previewing significant changes to its Cybersecurity Maturity Model Certification (CMMC) program.

The revamp, “CMMC 2.0,” promises a more streamlined and flexible system for defense contractors and their suppliers to comply with CMMC and DOD’s cybersecurity expectations, with practical changes coming into effect between 9 and 24 months from now.

CMMC 2.0 is DOD’s response to a months-long internal review spurred by more than 850 public comments in response to DOD’s September 2020 “CMMC 1.0” interim rule.  While DOD pursues the forthcoming rulemakings, it intends to suspend current CMMC piloting efforts and has stated it will not include CMMC requirements in DOD solicitations.

Contractors should continue, however, to adhere to the existing cybersecurity “assessments” framework, focusing on compliance with National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171 controls and required Basic Assessments.

Continue reading at: JD Supra

Judge issues nationwide injunction halting enforcement of COVID-19 vaccine mandate

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As set forth in more detail in its Order, a Georgia federal district court judge today issued an injunction halting enforcement of Executive Order 14042, which requires that federal contractors and subcontractors with specific types of covered contracts ensure that their covered employees are fully vaccinated against COVID-19 by January 18th, 2022.

As the Order states,

Accordingly,  the Court ORDERS that Defendants are ENJOINED, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.

In a brief 28-page decision, U.S. District Court Judge R. Stan Baker found:

it necessary, in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability.

The case was initially filed by the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia.  However, Associated Builders and Contractors, Inc. a nationwide trade organization “representing tens of thousands of contractors and subcontractors that regularly bid on and work on federal contracts for services” petitioned to intervene in the suit and joined the states in their request for a preliminary injunction.

Continue reading at:  JD Supra

Nondisplacement of qualified workers is back, but with changes

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On November 18, 2021, President Biden issued a new Executive Order entitled “Executive Order on Nondisplacement of Qualified Workers Under Service Contracts.”  A similar Executive Order had been issued under the Obama Administration.  Many of the same concepts and requirements have returned, but there are also several notable changes.

President Obama issued Executive Order 13495 on January 30, 2009, creating the original nondisplacement requirement for federal contractors.  President Trump revoked EO 13495 on October 31, 2019 through Executive Order 13897.  In President Biden’s Executive Order issued last week, he revoked EO 13897 and kept EO 13495 revoked.

Last week’s Executive Order maintains all of the basic requirements from the original Obama Administration version.

Continue reading at:  The Contractor’s Perspective

Contractor minimum wage to increase on January 30th

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The new floor is $15 an hour.

The Wage and Hour Division of the U.S. Department of Labor published its final rule implementing regulations under Executive Order 14026 (Increasing the Minimum Wage for Federal Contractors).  These regulations require that certain contracts include a clause requiring covered employees to be paid no less than $15 per hour.  In addition to applying to new contracts, the final rule requires that existing contracts be updated to include the minimum wage contract clause when an agency exercises an option to purchase additional services.

For details on which contracts are subject to the new regulation, please read the final rule.

Continue reading at:  JD Supra

Georgia defense contractor agrees to $900,000 payment to settle False Claims Act allegations

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Two Georgia companies and their owners have agreed to pay $900,000 to resolve allegations that they provided unapproved substitute parts to the U.S. Army and that they violated the Buy American Act.

The settlement, by Southeastern Equipment Co., Inc., SECO Parts and Equipment Co., and their owners, B. Roy Smith and Byron M. Morris (collectively, “SECO”), resolves allegations under the False Claims Act that SECO knowingly provided unapproved substitute parts through the U.S. Army’s Simplified Nonstandard Acquisition Program (SNAP) and violated the Buy American Act by providing parts manufactured in a non-qualifying country, said David H. Estes, Acting U.S. Attorney for the Southern District of Georgia.

“Defense contractors have an obligation to provide the government what they say they will,” said Acting U.S. Attorney David H. Estes. “We will continue to vigorously pursue contractors that do not honor their word and follow the law when doing business with our armed services.”

Continue reading at:  U.S. Department of Justice website

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