What's Ahead

SAM.gov Updates:

The list of socioeconomic status identifiers entities can choose from when registering have been updated. The new list and instructions on how to update your entity record are found here.

Recent Regulatory Changes: (Click on each title for a link to our breakdown)

• SBA Final Rule published on 10/11/2023, effective 11/13/2023, revises the Small Business Subcontracting Plan regulations in 13 CFR 125.3 allowing prime contractors with individual subcontracting plans to apply credit for subcontracts to small businesses at lower tiers toward its subcontracting goals.

• Federal Acquisition Circular (FAC) 2023-06 was published 10/5/2023. Three rules impacting the 8(a) program (effective 11/6/2023), Whistleblower Protections (effective 11/6/2023), and implementing the Federal Acquisition Supply Chain Security Act (FASCSA) of 2018 (effective 12/4/2023).

• SBA Reopens 8(a) Applications (effective 9/29/2023)

• Davis-Bacon and Related Acts (DBRA) Regulation Updates (effective 10/23/2023) -- Department of Labor (DOL) issued the first changes in over 40 years to the DBRA, which take effect for new Federal construction contracts.

• DFARS Case 2024-D001 New Designated Country - North Macedonia (Final Rule effective 10/30/2023) amends DFARS to add North Macedonia as a new designated country under the World Trade Organization (WTO) Government Procurement Agreement (GPA).

• DFARS Case 2023-D015 Prohibition on Certain Procurements From the Xinjiang Uyghur Autonomous Region (Final Rule effective 10/30/2023) adopts an interim rule published on 12/16/2022 without change to require a certification from offerors for contracts with DoD to state the offeror has made a good faith effort to determine that forced labor from the Xinjiang Uyghur Autonomous Region of the People's Republic of China (XUAR) was not or will not be used in the performance of a contract.

• DFARS Case 2021-D021 Restrictions on Overhaul and Repair of Naval Vessels in Foreign Shipyards (Final Rule effective 10/30/2023) implements section 1025 of FY2021 NDAA to restrict the overhaul or repair of a naval vessel in a shipyard outside the U.S. or Guam with some exceptions.

Upcoming Regulatory Changes: (Click on each title for a link to our breakdown)

• Department of Labor (DOL) Wage and Hour Division (WHD) Notice - Minimum Wage for Federal Contracts Covered by Executive Order 14026, Notice of Rate Change in Effect as of January 1, 2024 -- Beginning on January 1, 2024, the Executive Order 14026 minimum wage rate that generally must be paid to workers performing work on or in connection with covered contracts will increase to $17.20 per hour. This minimum wage rate will apply to non-tipped and tipped employees alike, as, beginning January 1, 2024, Executive Order 14026 eliminates the lower cash wage that contractors may pay tipped employees.
   

• Published 9/8/2023; Comments due by 11/7/2023

  • Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees (Proposed Rule - Department of Labor (DOL)) would make changes to the Fair Labor Standards Act (FLSA) to implement an increased standard salary and compensation thresholds, expanding overtime protections to more workers and provide for an automatic earnings threshold update every three years.

   

• Published 10/3/2023; Comments due by 12/4/2023:

  • FAR Case 2021-009 Protests of Orders Set Aside for Small Business (Proposed Rule) would provide clarification on what entities may protest a small business's size under an order on a multiple-award contract and when the protest would be due.

   

• Published 10/3/2023; Comments extended through 2/2/2024:

  • FAR Case 2021-017 Cyber Threat and Incident Reporting and Information Sharing (Proposed Rule) would add compliance requirements for incident and threat reporting and response for products or services containing Information and Communications Technology (ICT).

  • FAR Case 2021-019 Standardizing Cybersecurity Requirements for Unclassified Federal Information Systems (Proposed Rule) would standardize language and minimum cybersecurity standards across the Federal Government to protect and secure cloud-based, on-premises, or hybrid Federal Information Systems (FIS) used or operated by an agency, by a contractor of an agency, or by another organization on behalf of an agency. (Scroll below 2021-017 to view.)

• Published 10/25/2023; Comments due 12/26/2023:

  • DFARS Case 2023-D011: DoD Mentor-Protege Program would amend the DFARS to permanently authorize the program and extend the term for program participation from two years to three years, among other changes.

The Reg Map outlines the informal process depicted below which is used to revise or add to the FAR. Coupled with the FAR Open Case Report published each Friday afternoon, you'll be able to track and anticipate rules before your competitors.

Be Ahead of the Game -- Following Proposed, Interim, and Final FAR Rules

Sometimes it seems like the Government pushes out proposed, interim, and final rules without warning, but you can get a heads up and follow rules through the process. The Federal Register previews rules for the public prior to publication. You can set up a search and alert for FAR, SBA, and DOL changes by creating a "My FR" account and signing up to receive public inspection and final publications.

What makes a public comment on a FAR rule impactful?

✅️ Read the ENTIRE rule before commenting. Many times your question is answered in the preamble, summary, applicability statements, Regulatory Impact Assessment (RIA), or the FAR language itself.

✅️ Specificity. Address your comment to a specific section, paragraph, or sentence(s).

✅️ Quantifiable impacts of the rule in terms of effort, hours, and dollars, particularly to small businesses.

✅️ Suggest alternative language.

✅️ Identify areas that need more clarification through the use of definitions, visual representations like tables or charts, cross-referencing, examples, scenarios, etc.

✅️ Point out errors, contradictions, and typos.

⛔️ Avoid generalizations, accusations, or coarse language.

The Department of Labor's (DOL's) Wage and Hour Division (WHD) houses a Government Contracts Compliance Assistance page containing a comprehensive list of resources to ensure your compliance with the Davis-Bacon and Related Acts (DBRA), Service Contract Labor Standards (SCLS), and prevailing wages and fringe benefits. The WHD also offers live assistance by calling 1-866 4 US WAGE (1-866-487-9243). Take advantage of these great resources!

Agency Supplements: FAR and Its "Child" Regulations 

The Federal Acquisition Regulation, or "FAR", is the definitive guidance for Federal contracting. But, did you know that each agency also has its own supplement to the FAR? Let's talk about how the FAR and it's supplements, or "children", co-exist to create a coherent and agency-specific acquisition framework that aligns with the agency's missions and objectives.

Extended Agency Moratoriums:

• GSA Moratorium on Enforcement of Certain Economic Price Adjustment (EPA) Clause Limitations -- extended by GSA through March 31, 2024.

• Bona Fide Place of Business (BFPOB) for 8(a) Construction Contractors -- extended by SBA through September 30, 2024.

Expand Your Federal Contracting Knowledge