Georgia Tech Procurement Assistance Center

Proposed FAR rule seeks to accelerate payments to small business

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This past week, the FAR Council issued a proposed rule that would potentially speed up payments to small business prime contractors and subcontractors across the federal government.  The proposed rule, found at 86 Fed. Reg. 53,923, seeks to incentivize agencies to pay prime contractors that are small businesses within 15 days instead of 30 days after receipt of a proper invoice if no payment date is specified in the contract.  It also would apply to prime contractors that subcontract with small businesses, applying a similar 15-day requirement to pay small subcontractors when accelerated payments are received.  According to the proposed rule, the FAR Council will apply this to most federal contracts by seeking determinations to make this new rule applicable to commercial contracts as well as those under the Simplified Acquisition Threshold.

Continue reading at:  The Contractor’s Perspective

 

Task Force announces details of federal contractor vaccine mandate

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coronavirusThe Safer Federal Workforce Task Force (Task Force) has issued its guidance (Guidance) regarding the COVID-19 safety protocols that federal contractors must implement under President Biden’s recent Executive Order 14042.  The Guidance requires covered contractors and subcontractors to adopt a “hard” vaccine mandate—that is, to ensure that covered employees are fully vaccinated for COVID-19, subject only to legally required medical and religious exemptions, by December 8, 2021.

The mandate extends broadly not only to employees working directly on federal contracts, but also to those such as human resources, billing, and legal personnel who perform work “in connection with” covered contracts, and to all other employees working in the same location as such employees.  Certain employees who work remotely are also covered.  Covered contractors must implement safety protocols related to masks and social distancing in their workplaces as well.

Continue reading at:  Hogan Lovells

GAO sustains protest based on awardee’s organizational conflicts of interest

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If a company has one or more Organizational Conflicts of Interest (“OCIs”), its ability to compete for (and perform) a government contract in a fair and equitable manner is inherently called into question.  In the context of a bid protest, this may be one of the most overlooked but “sharpest” grounds that may be available to a protester.  In short, an OCI is an instance where “because of other activities or relationships with other persons [or entities], a person [or entity] is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.”  FAR 2.101.  Understanding the three types of OCIs and the situations in which each typically arises is critical in order for disappointed offerors to execute this riposte in the face of a flawed contract award.

Pursuant to FAR Subpart 9.5, agencies are required to investigate whether actual (or potential) OCIs may impact a procurement and take steps—often with the assistance of the potentially conflicted contractor—to mitigate or effectively neutralize such conflicts as early as possible in the acquisition process.  Indeed, an OCI protest decision typically turns on the reasonableness of the agency contracting officer’s OCI investigation; that is, so long as the contracting officer has investigated the existence of a potential OCI and, in the event a potential OCI exists, reasonably determined whether the conflict has been adequately mitigated (or waived), the General Accountability Office (“GAO”) will likely defer to the contracting officer’s findings.

Although agencies have broad discretion when evaluating potential OCIs, that discretion isn’t unlimited.  The recent decision in Steel Point Solutions, LLC, B-419709 et al., July 7, 2021 (“Steel Point”), underscores this point.  In this case, the GAO sustained the protest on the ground that the agency failed to adequately consider the extent of potential OCIs arising from the awardee’s ongoing performance of two other agency contracts.  This decision not only illustrates what an agency must consider for a proper OCI analysis and mitigation but also serves as another real-world example of when OCIs may arise—in this case, an “impaired objectivity” OCI.

Continue reading at:  McCarter & English

GAO holds solicitation requirement violates SBA’s regulations regarding small business mentor-protégé joint ventures

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In a recent decision, the Government Accountability Office (GAO) sustained a protest challenging the terms of a solicitation, as the solicitation impermissibly required that a protégé and mentor in a joint venture have the same level of experience as other offerors.  This is an important decision for companies that are parties to a joint venture, and a reminder to carefully review a solicitation’s requirements before submitting a proposal.

As relevant background, the Small Business Administration (SBA) revised its regulations in November 2020.  Prior to November 2020, SBA’s regulations provided that, in evaluating proposals submitted by a joint venture, agencies must consider the past performance of the joint venture entity itself and each party to the joint venture.  Effective November 16, 2020, this provision was expanded to include capabilities, experience, business systems, and certifications.  SBA explained that while a small business protégé should have some experience in the type of work to be performed, “it is unreasonable to require the protégé concern itself to have the same level of past performance and experience (either in dollar value or number of previous contracts performed, years of performance, or otherwise) as its large business mentor.”  Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments, 85 Fed. Reg. 66146, 66167 (Nov. 16, 2020).

Continue reading at:  JD Supra

See also, this Small GovCon article:  https://smallgovcon.com/gaobidprotests/gao-solicitation-cannot-require-a-protege-have-the-same-experience-as-its-mentor/

Virginia businessman sentenced for bribery of FBI official

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Robert Bailey, 63, of Centreville, Virginia, was sentenced to 18 months in federal prison for paying a bribe to a public official, Acting U.S. Attorney Rafael M. Gonzalez, Jr. announced today.  U.S. District Judge B. Lynn Winmill also imposed a $100,000 fine and a term of three years of supervised release to follow Bailey’s prison sentence.

“When private individuals perform contracts for the government, they effectively become public servants who must uphold a public trust,” said Gonzalez.  “Mr. Bailey breached that trust and now faces the consequences of his actions.  The Court’s 18-month sentence sends the appropriate message to Mr. Bailey and other similarly-situated government contractors: take the public trust seriously or wind up behind bars.”

“Bailey bribed an FBI Contracting Officer Representative in order to gain personal advantages in the contracting process.  Today’s sentencing shows that those who seek advantages through disingenuous means like bribes will be held accountable,” said Douglas B. Bruce, Special Agent in Charge of the Department of Justice Office of the Inspector General Denver Field Office.

According to court records, in 2001, Bailey purchased L-1, a construction management and operations company located in Chantilly, Virginia.  In 2008, Bailey became a business acquaintance of a Federal Bureau of Investigation (FBI) employee when they worked together on an FBI construction project.  The FBI employee, who held the position of Management and Program Analyst, was responsible for managing construction and services contracts for FBI buildings across the country.

Continue reading at:  U.S. Department of Justice

New Executive Order requires many federal contractors to increase minimum wage for workers to $15 by 2022

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On April 27, 2021, President Biden issued his latest executive order (the EO), which requires all federal agencies to incorporate a $15 per hour minimum wage into nearly every federal contract effective January 2022.

Beginning on January 30, 2022, all agencies will incorporate the $15 minimum wage in new contract solicitations, and the wage will be implemented in all new contracts beginning on March 30, 2022.  In an effort to keep the minimum wage at a sustainable level for workers, the EO institutes an index for the wage to keep pace with inflation and cost of living increases.  At present, the minimum wage for federal contract employees is $10.95 per hour, and the tipped minimum wage is $7.65 per hour.

The EO also eliminates the tipped minimum wage for federal contractors, which must be phased out by agencies and contractors by 2024.  Until now, federal contractors employing tipped workers could pay sub-minimum wages as long as tips closed the gap up to the minimum wage.  Under the EO, the tipped minimum wage will increase to $10.50 per hour beginning January 30, 2022, reach 85 percent of the federal contractor minimum wage on January 1, 2023, and then match the federal contractor minimum wage effective January 1, 2024.

Continue reading at:  JD Supra

See also:  Biden signs an Executive Order for $15 federal contractor minimum wage (Wiley)

President Biden Issues an Executive Order Increasing the Minimum Wage for Many Employees of Federal Contractors to $15.00 (Pillsbury)

Construction firm pays $2.5 million to settle allegations of exploiting SDVOSB program

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Stronghold Engineering, Inc. (SEI) and its owners have paid the United States $2.5 million to resolve criminal and civil investigations into allegations the firm violated federal law through its involvement in federal government construction contracts obtained by a related company under a government program designated for small businesses owned by service-disabled veterans.

The United States today received the $2.5 million payment pursuant to a civil settlement and a non-prosecution agreement (NPA) with SEI.

Continue reading at:  U.S. Department of Justice

Mandatory breach notification requirements are coming for government contractors

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The Biden Administration is imminently expected to release an executive order that will require government contractors to notify the government in the event of a cybersecurity breach.  Despite the relatively steady rise in cyberattacks and breaches over the years and the enactment of consumer data breach disclosure laws in all 50 states, there is currently no standardized reporting requirement for government contractors.  However, the Biden administration has promised executive action on the issue, largely in response to a cyberattack by a suspected nation-state against multiple software companies, including the SolarWinds software company.

Continue reading at:  Husch Blackwell

EEOC announces EEO-1 data collection to open April 26th

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The Equal Employment Opportunity Commission (EEOC) made the long-awaited announcement that this year’s EEO-1 collection would open on April 26, 2021, and close on July 19, 2021.

Employers with at least 100 employees, and federal contractors with at least 50 employees, are obligated to file the EEO-1.

Employers should be ready to file their data within the 12-week window once the collection opens.  As employers begin to prepare their filings, it will be important for them to be aware of what is in this year’s collection and, perhaps more important, what will not.

Continue reading at:  JD Supra

 

GSA streamlines MAS program requirements for COVID-19 related vendors

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To support GSA’s continued posture of supporting our country’s COVID-19 efforts, and in bolstering the American Rescue Plan, GSA has issued a letter to expand the availability of COVID-19 related products, services, and solutions under GSA’s multiple award schedule program by waiving certain vendor requirements.

Continue reading at:  GSA Blog

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