Compliance

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On July 29th, 2021, President Biden announced additional efforts to increase COVID-19 vaccination rates and to protect the federal workforce, including strengthening safety protocols for federal employees and contractors. Under the Biden Administration’s new guidance, in areas of high or substantial transmission of COVID-19, federal employees, contractors, and visitors must wear a mask inside federal buildings with limited exceptions. Individuals who are not fully vaccinated must wear a mask regardless of community transmission level.

Diverse Group of Business People - Isolated

In September 2020, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) made a formal request to the Office of Management and Budget (OMB) for approval of a new information collection request (ICR) to collect and monitor Affirmative Action Plans (AAP), and will soon require federal contractors and subcontractors to regularly certify that they have compliant AAPs. OFCCP recently posted on its website a new page titled “Affirmative Action Plan Verification Interface” and indicated that it was “Coming Soon.” The page further explains “Affirmative Action Plan Verification Interface (AAVI) is a secure web based interface created to improve communication and the transfer of Affirmative Action Plan data, between Federal Contractors and the Office of Federal Contract Compliance Programs.”

In March, we wrote about how we still were awaiting guidance from the White House about how the Made in America Office’s waiver process would work under President Biden’s January 25, 2021 EO 14005, Ensuring the Future is Made in All of America by All of America’s Workers. This month, the White House released its initial guidance on the new waiver process, identifying four main areas of implementation:

Breaking into federal government contracting can be daunting. There are ever-changing compliance obligations to consider and complex bidding and proposal submission requirements to navigate. An entire industry of sales consultants, proposal writers, and lobbyists promising to help tap into the $600 Billion plus federal marketplace are only a Google search away. Engaging the services from one of these firms is generally allowed, but there are restrictions. This post deals with one of those restrictions—the Covenant Against Contingent Fees (FAR 52.203-5) which restricts how government contractors pay third-party sales agents.

It has been two months since President Biden issued his Buy American Executive Order on January 25, 2021. But it would seem we still have more questions than answers: What specific actions will agencies take to promote the Order’s policy? What will the Made in America Office look like? Where can I find more information about proposed waivers? While the answers to these questions are probably still months away, it is important for contractors to understand the possible implications now and plan accordingly.

Have you received a Section 889 letter yet? If not, you may soon. The letters ask whether you provide or use “covered telecommunications equipment or services.” They are part of the implementation of Section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (the 2019 NDAA), which has two phases. The first phase started in August 2019 but has a limited scope. The second phase—which started in August 2020—is much broader and raises a lot more questions. This article answers some of those questions and provides some tips on how to comply.

Keep in mind that Section 889 is still being implemented. Much of this analysis is based on interim rulemakings at 85 F.R. 42665 and 85 F.R. 53126. Final rules may change based on public comments.

We’ve all heard the expression that those who deal with the Government must turn square corners. This is because the Government has a broad array of tools at its disposal to motivate, coax, and cajole contractors and federal grant recipients to play by the rules. Those tools include harsh measures such as criminal prosecution and civil false claims act enforcement on the one hand and poor CPARS ratings on the other. A seemingly less severe administrative option available to the Government is suspension and debarment. However, any entity that has been suspended or debarred knows that these measures can prove harsh and disruptive. While the numbers of suspensions and debarments have declined from the all-time high in 2011, there is still significant activity. In its FY 2018 report, the Interagency Suspension and Debarment Committee reported 2444 referrals, 480 suspensions, 1542 proposed debarments, and 1334 debarments. The number of referrals for suspension and debarment in FY 2018 is almost exactly the same as the number of GAO bid protests filed that year.

What is Suspension and Debarment?

Like any consumer, the Government has inherent authority to pick with whom it will do business. Not everyone makes the cut. Suspension and debarment are the Government’s tool to avoid entities it views as a high risk for poor performance, fraud, waste, and abuse. Suspension and debarment preclude a business entity or individual from contracting with the Government or from receiving grants, loans, loan guarantees or other forms of assistance from the Government.  A suspension is a temporary exclusion when the Government determines immediate action is necessary pending the completion of an investigation or legal proceeding. A debarment is an exclusion for a defined, reasonable period of time—often three years.

Affirmative action requirements waived for contracts specifically related to COVID-19 relief

As in past times of national emergency, the Office of Federal Contract Compliance Programs has stepped up to exempt certain new federal supply and service contractors and subcontractors from having to comply with most OFCCP requirements over the course of the contract. Announced March 17, OFCCP calls the action the “National Interest Exemption.” Contractors providing supplies and services specifically related to COVID-19 relief must still abide by OFCCP’s non-discrimination and non-retaliation obligations and are subject to OFCCP complaint investigations. The exemption extends to the obligations of all three laws enforced by OFCCP: Executive Order 11246, § 503 of the Rehabilitation Act, and § 4212 of VEVRAA.

Federal agencies and contractors are working hard to address the realities of the COVID-19 pandemic. In some cases, work must stop. In others, the work will increase or change dramatically. While contractors should look to contracting officers for guidance with respect to specific contracts, agency-wide guidance documents are beginning to shed light on the government’s expectations. We will be using this blog entry to collect and share agency guidance on performance of government contracts during the Coronavirus pandemic.

Department of Defense—

Department of the Army—

  • Planning for Potential Novel Coronavirus Impacts (Mar. 12, 2020). Encourages increased communication, notes that contracting officers do not bear the responsibility to determine whether the excuse of COVID—19 applies, outlines causes for performance delays that are excusable and FAR provisions that excuse performance delays, and clarifies situations in which compensation is an option.

Happy New Year to mid-size government contractors! SBA’s determination of small business status under receipts-based size standards is transitioning from a three-year to a five-year lookback period starting today. The change is the result of a final rule that SBA issued on December 5, 2019. The rule is intended to allow mid-size businesses to regain or keep their small business status longer. The expectation is that this will increase small business contracting dollars and set-asides. A breakdown of the rule is below.