Weekly Update for Government Contractors and Commercial Businesses – August 22, 2024

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LABOR & EMPLOYMENT 

FTC Non-Compete Ban Will NOT Become Effective September 4, 2024, PilieroMazza Client Alert, Nichole D. Atallah, Sarah L. Nash 

As suspected and previewed in PilieroMazza’s April 24, 2024 blog, a Texas federal judge permanently blocked the Federal Trade Commission’s (FTC) impending restriction on non-competition agreements (Non-Compete Rule). This means, at least for now, businesses will not need to follow the Non-Compete Rule and can maintain non-compete provisions in their agreements with employees, so long as those agreements are state law compliant.  Read more here.

Department of Labor (DOL) Final Rule: DOL Acquisition Regulation (DOLAR), DOLAR System

On August 16, DOL published a final rule amending the DOLAR to remove redundant provisions and codify contractual requirements for government property, continuity of operations, system requirements, records management, telework policy, submission of invoices, mandatory training, organizational conflicts of interest, and notification of changes to contracts. The rule is available here and will be effective September 16, 2024.

Department of Labor (DOL) Rules: Semiannual Regulatory Agenda

On August 16, DOL published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Final Rule Stage
  • Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees
  • Independent Dispute Resolution Operations

• Proposed Rule Stage
  • Prevention of Workplace Violence in Health Care and Social Assistance

Federal Trade Commission (FTC) Rule: Semiannual Regulatory Agenda

On August 16, FTC published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Final Rule Stage
  • Non-Compete Clause Rule

Customs and Border Protection Settles a $45M Lawsuit Alleging Discrimination Against Pregnant Employees, Government Executive

U.S. Customs and Border Protection on Tuesday agreed to a $45 million settlement to resolve a class action lawsuit that alleged the agency discriminated against pregnant employees. The agreement, which is expected to be finalized in September, also requires CBP to implement reforms to its policies regarding pregnant workers. Read more here.

Upcoming Labor & Employment Presentations

CONFERENCE: Why Should Business Leaders Care About HR? It’ll Cost You If You Don’t, September 27, 2024, Nichole D. Atallah

 

GOVERNMENT CONTRACTS

Department of Defense (DOD) Final Rules: Defense Federal Acquisition Regulation Supplement (DFARS) 

On August 15, DOD published two final rules. The Technical Amendments are available here. Both rules are effective as of August 15, 2024.

1. Strategic and Critical Materials Stock Piling Act Reform: This final rule amends the DFARS to revise the name of the Strategic Materials Protection Board to “Strategic and Critical Materials Board of Directors.” The rule is available here.
2. Sustainable Procurement: This final rule amends the DFARS to align with the Federal Acquisition Regulation (FAR) changes regarding sustainable procurement. The rule is available here. The FAR rule is available here.

Federal Acquisition Regulation (FAR) Rules: Semiannual Regulatory Agenda

On August 16, the Department of Defense, General Services Administration, and National Aeronautics Administration published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Final Rule Stage
  • Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
  • Prohibition on Contracting With Entities Using Certain Telecommunications and Video Surveillance Services or Equipment
  • Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk
  • Cyber Threat and Incident Reporting and Information Sharing
  • Prohibition on a ByteDance Covered Application
  • Pay Equity and Transparency in Federal Contracting

• Proposed Rule Stage
  • Controlled Unclassified Information (CUI)
  • Minimizing the Risk of Climate Change in Federal Acquisitions
  • Supply Chain Software Security

• Long-Term Actions
  • Implementation of Federal Acquisition Supply Chain Security Act (FASCSA) Orders

General Services Administration (GSA) Rules: Semiannual Regulatory Agenda

On August 16, GSA published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Final Rule Stage
  • Federal Supply Schedule Economic Price Adjustment
  • System for Award Management Representation for Leases
  • Contract Requirements for High-Security Leased Space
  • Updating Payments Clause

• Proposed Rule Stage
  • Extension of Certain Telecommunication Prohibitions to Lease Acquisitions
  • Amending Prescriptions for Including FAR Provisions and Clauses in Lease Procurements
  • Economic Price Adjustment for Deregulated Electric Supplies
  • Labor Requirements for Lease Acquisitions

• Long-Term Actions
  • Immediate and Highest-Level Owner for High-Security Leased Space
  • Additional Transactional Data Reporting Elements for Non-Federal Supply Schedule contracts

Small Business Administration (SBA) Rules: Semiannual Regulatory Agenda

On August 16, SBA published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Proposed Rule Stage
  • Affiliation in Small Business Procurement Programs
  • Small Business Size Standards: Monetary-Based Industry Size Standards
  • Small Business Size Standards: Employee-Based Industry Size Standards

National Aeronautics and Space Administration (NASA) Rules: Semiannual Regulatory Agenda

On August 16, NASA published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Final Rule Stage
  • Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards

• Proposed Rule Stage
  • NASA FAR Supplement: Implementation of a Branding Clause

Federal Communications Commission (FCC) Rule: Semiannual Regulatory Agenda

On August 16, FCC published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Long Term Actions
  • Protecting Against National Security Threats to the Communications Supply Chain Through the Equipment Authorization and Competitive Bidding Programs

Nuclear Regulatory Commission (NRC) Rule: Semiannual Regulatory Agenda

On August 16, NRC published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Proposed Rule Stage
  • Revision to the NRC’s Acquisition Regulation (NRCAR)

Upcoming Government Contract Presentations

TRAINING: Understanding and Avoiding Affiliation for Small Business Government Contractors, August 26, 2024, Meghan F. Leemon, Emily A. Reid 

TRAINING: Navigating the FAR/DFARS: The Most Confusing and Little-Known Clauses, September 10, 2024, Eric Valle, Daniel Figuenick, III, 

SEMINAR: 16.207 – Firm-Fixed-Price, Level-of-Effort Term Contracts, September 11, 2024, Isaias “Cy” Alba, IV

TRAINING: Unlocking the Secrets of Debriefings, Government Evaluation of Proposals and Protests, September 26, 2024, Katherine B. Burrows, Eric Valle

SEMINAR: Common Scenarios Triggering False Claims Act Violations, Part 1: Government Contracts and Cybersecurity, September 26, 2024, Matthew E. Feinberg, Jacqueline K. Unger, Mark F. Rosenow

SEMINAR: Common Scenarios Triggering False Claims Act Violations, Part 2: Construction and Workforce Issues, October 1, 2024, Matthew E. Feinberg, Jessica A. duHoffmann, Sarah L. Nash

SEMINAR: Common Scenarios Triggering False Claims Act Violations, Part 3: Claims and Investigations, October 10, 2024, Matthew E. Feinberg, Mark F. Rosenow

 

NATIVE AMERICAN LAW & TRIBAL ADVOCACY

Treasury Says $82M Will Boost Tribal Small Business Growth, Law360

An investment by the U.S. Treasury in a consortium of Alaskan tribes is expected to infuse as much as $830 million in additional private sector investments throughout the state and in Indigenous-owned companies as part of the most expansive backing of small-business financing for tribal governments in history. Read more here (subscription required). 

 

LITIGATION & DISPUTE RESOLUTION

Amicus Beef: Judiciary Kicks Off Heated Transparency Debate, Law360 

The federal judiciary’s main policy panel floated a major overhaul of mandatory financial disclosures in appellate amicus briefs, a move that’s being fueled by perceptions of shadowy “judicial lobbying” and already coming under siege by big business. Read more here (subscription required). 

 

CYBERSECURITY & DATA PRIVACY

Department of Defense (DOD) Rules: Semiannual Regulatory Agenda

On August 16, DOD published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Final Rule Stage
  • Cybersecurity Maturity Model Certification (CMMC) Program
• Proposed Rule Stage
  • Assessing Contractor Implementation of Cybersecurity Requirements

Department of Commerce (DOC) Rules: Semiannual Regulatory Agenda

On August 16, DOC published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Final Rule Stage
  • Securing the Information and Communications Technology and Services Supply Chain
  • Taking Additional Steps to Address the National Emergency with Respect to Significant Malicious Cyber-Enabled Activities

• Long-Term Actions
  •  Securing the Information and Communications Technology and Services Supply Chain: Licensing Procedures

Department of Homeland Security (DHS) Rule: Semiannual Regulatory Agenda

On August 16, DHS published its Semiannual Regulatory Agenda, which summarizes and describes regulations being developed within the next 12 months. Notable regulations include:

• Final Rule Stage
  • Cybersecurity in the Marine Transportation System