In August 2020, the Office of Management and Budget (“OMB”) amended its Guidance for Grants and Agreements set forth under 2 CFR (commonly referred to as the “Uniform Guidance”). The Covington team wrote about that amendment, and in particular, the implementation of Section 889 requirements, here. Now, almost three years later, OMB is requesting feedback in anticipation of further amending the Uniform Guidance.
DoD Seeks Early Input Regarding FY2023 NDAA Implementation in Acquisition Regulations
The Department of Defense is seeking early input on implementation of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (the “FY2023 NDAA”) in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation. Although this early engagement process will not replace the formal rulemaking process, it presents a significant opportunity for government contractors, technology providers, industry associations, and other interested parties to provide their perspectives on acquisition-related provisions of this year’s NDAA. Providing early input can ensure that industry’s perspective is heard. Indeed, providing input at this stage may impact the future rulemaking process by guiding areas of focus and influencing ways the rule makers ask for input during the rulemaking process.
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New Law Increases Government Scrutiny of Contractor Compliance with Anti-Trafficking Provisions
President Biden recently signed bipartisan legislation reinforcing anti-human trafficking prohibitions. The End Human Trafficking in Government Contracts Act of 2022 builds on the existing anti-human trafficking framework at Federal Acquisition Regulation (“FAR”) § 52.222-50 (Combatting Trafficking in Persons) by requiring agencies to refer contractor reports of potential human trafficking activity directly to an agency suspension and debarment official (“SDO”). Prior to this legislation, contractors have been required to notify their contracting officer and the agency inspector general upon receiving “[a]ny credible information” that a human trafficking violation had occurred. See FAR § 52.222-50(d)(1). Now agencies will be required to refer these reports to their SDOs, creating additional risk for contractors that disclose potential violations.
President Biden Issues Executive Order on National Biotechnology and Biomanufacturing Initiative
On September 12, 2022, President Biden issued an Executive Order (“E.O.”) announcing the National Biotechnology and Biomanufacturing Initiative, a “whole-of-government” effort to further biotechnology and biomanufacturing innovations in health, climate change, energy, food security, agriculture, supply chain resilience, and national and economic security. The White House subsequently announced that the Initiative would cost $2 billion. If successful, the Initiative could have sweeping impacts across the entire biotechnology research and development (“R&D”) lifecycle. A summary of the E.O., its requirements, and key takeaways are set forth below.
OFCCP Seeks Input On Potential FOIA Disclosure of Contractor Employment Information
Update as of September 15, 2022: OFCCP has extended the deadline by one month for contractors to submit objections to the FOIA request described in this article. The new deadline is October 19, 2022. Additionally, in an effort to clarify which government contractors are covered by this FOIA request, OFCCP has indicated that it will be reaching out to “contractors that OFCCP believes are covered by this FOIA request” using the “email addresses provided as a contact for the EEO-1 report” through OFCCP’s Contractor Portal.
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In response to a broad Freedom of Information Act (“FOIA”) request the Office of Federal Contract Compliance Programs (“OFCCP”) may produce the Employment Information (“EEO-1”) Type 2 filings of up to 15,000 government contractors unless written objections are filed by September 19, 2022. This blog post explains the information that OFCCP has been asked to release and factors that government contractors should consider in deciding whether an objection to the release of this information is appropriate and advisable.
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OMB and Safer Federal Workforce Task Force Preview Forthcoming Guidance on Federal Contractor Vaccine Mandate
UPDATED AS OF 10/26/2022:
Changing course after its August 31 announcement that it would not enforce the federal government contractor vaccination mandate absent further written notice, on October 14, 2022, OMB and the Task Force published an update stating that they plan to issue at least three new guidance documents with an eye toward potentially resuming enforcement of the mandate:
- First, OMB plans to notify Federal agencies about compliance with applicable injunctions and whether contract clauses implementing the mandate should be included in new solicitations and contracts.
- Second, the Task Force plans to update its November 2021 workplace safety protocols guidance related to the mandate. The updated guidance will provide a timeline for any implementation long enough to ensure that covered contractors can come into compliance as needed.
- Third, OMB will review the safety protocols guidance and make a determination on whether it promotes economy and efficiency in government contracting. If OMB makes such a determination, it will provide additional guidance to agencies on timing and considerations for providing written notice to contractors regarding enforcement, except as barred by any injunction.
Biden Administration Announces Priorities for the Implementation of the CHIPS Act of 2022
On August 25, 2022, President Biden announced a new Executive Order (“EO”) addressing the Implementation of the CHIPS Act of 2022 (“CHIPS Act”). The CHIPS Act was signed by President Biden on August 9, 2022, and, among other things, authorizes $39 billion in funding for new projects to establish semiconductor production facilities within the United States. The new EO identifies the Administration’s implementation priorities for this CHIPS Act funding and creates the CHIPS Implementation Steering Council to aid with the rollout of administrative guidance. In connection with the EO, the Department of Commerce launched CHIPS.gov, which is intended to be a centralized resource for potential applicants of CHIPS funding. The EO and new website reflect the Administration’s intent to swiftly implement the CHIPS Act and increase the domestic production of semiconductors.
OFCCP Contractor Portal: It’s Not Too Late
Earlier this year, the Department of Labor’s Office of Federal Contractor Compliance Programs (“OFCCP”) opened the Contractor Portal, a new platform where covered federal contractors and subcontractors must annually certify whether they are meeting their requirement to develop and maintain written Affirmative Action Programs (“AAPs”). As we previewed in June, OFCCP required covered
Department of Labor Proposes Overhaul to Davis-Bacon Act Regulations
Many contractors are familiar with the Davis-Bacon Act (“DBA”), the statute that requires government contractors to pay prevailing wages to workers employed in the construction, alteration, or repair of buildings or other public works. The DBA is enforced by the Department of Labor, which is responsible for issuing the “wage determinations” that list the prevailing wages for different labor categories within a geographical area and for promulgating regulations used to implement the DBA’s requirements.
On March 18, 2022, the Department issued a notice of proposed rulemaking (“NPRM”), announcing that it intends to make a number of revisions to the DBA regulations. In the Department’s view, these revisions represent the largest change to the DBA regulations since the last major rewrite in 1981.
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New GAO Report: HHS Faces Outstanding Issues as it Assumes Vaccine Responsibilities
Since May 2020, federal efforts to fast-track the development, manufacturing, and distribution of COVID-19 vaccines has been led by a joint effort between the Department of Health and Human Services (“HHS”) and the Department of Defense (“DoD”), formerly known as Operation Warp Speed but renamed the HHS-DoD COVID-19 Countermeasures Acceleration Group (“CAG”). As of December 31, 2021, the CAG was dissolved, and the entire responsibility for managing the government’s vaccine efforts transitioned to HHS. On January 19, 2022, the Government Accountability Office (“GAO”) released a report examining that transition, as part of its ongoing obligation under the CARES Act to monitor the federal government’s pandemic response. The report includes a few key findings and recommendations that will be of interest to industry partners operating within this space.
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