2018 Regulations Review:
Major regulatory actions affecting small biz contractors

• Minimum Wage: The Federal Contractor Minimum Wage increased to $10.35 per hour on Jan. 1, 2018, up from $10.20. Employees who earn tips while performing on covered federal construction and service contracts must be paid at least $7.25 per hour, up from $5.85. Read more at https://www.dol.gov/whd/flsa/eo13658/App-B.pdf
• Digital access for disabled people: An update to Sect. 508 rules requiring that government websites and online media provide digital access for people with disabilities went into effect on Jan. 1, 2018. Read more at http://goo.gl/6qdwNw .
• DOD task order protests: The Government Accountability Office confirmed that is is authorized to hear protests of Defense Dept. task orders only for task orders of $25 million or more, up from $10 million. The GAO noted the change just before 2018 started. For civilian task orders the threshold remains $10 million (https://bit.ly/2RQcARl ).
• Veteran-owned certifications: On Jan. 10, 2018 the Veterans Affairs Dept. published a proposed rule to turn over responsibility for writing regulations on ownership and control of veteran-owned small businesses to the Small Business Administration. On Jan. 29, the SBA issued a similar regulation allowing it to take over those responsibilities. Read more at https://bit.ly/2tdr8R0 and http://goo.gl/VbpPfZ.
• Micropurchases & Simplified Acquisition: The chief of the Civilian Agency Acquisition Council authorized federal civilian agencies to apply a class deviation to raise the Simplified Acquisition and micropurchase thresholds immediately, without waiting for the Federal Acquisition Regulatory Council to act.

        The approval allows the Simplified Acquisition threshold to be raised to $250,000, up from $100,000, and the micropurchase threshold to be raised to $10,000 (from $3,500). More information at http://goo.gl/Mt7tH2 .

• Conflict with commercial supplier terms: A final rule went into effect Feb. 22, 2018 to address situations in which terms commonly used in commercial supplier agreements are inconsistent with federal law or inappropriate for federal contracts. The rule states that the government’s terms override the supplier’s terms; but if that results in a “material change” for the supplier, then the government and the supplier must agree on new terms. Read the final rule at http://goo.gl/pckguK .
• DOJ guidance not binding: The Justice Dept. issued a memo stating that agency guidance documents on how to pursue fraud recoveries or other civil actions should not be viewed as fully binding on the public because such guidance did not go through the full notice-and-approval process. Read more at https://www.justice.gov/file/1028756/download.
• Inflation adjustment for civil penalties: The SBA published a final rule raising various civil penalties by 2% to adjust for inflation. The penalties apply to contractors that fail to file required reports or to make certain disclosures, among other situations. Read the final rule at https://www.regulations.gov/document?D=SBA_FRDOC_0001-0295.
• Eligibility for set-asides after merger: The SBA’s Office of Hearings and Appeals clarified an important point on eligibility for set-asides for service-disabled veteran-owned small firms (SDVOSBs).The vendor was an SDVOSB with an SDVOSB set-aside contract. The firm recently was acquired by a non-veteran. OHA was asked whether the company was eligible for new task orders associated with the contract.

        While the SBA judged the company to be ineligible, OHA ruled that the company continued to be eligible for new task orders through the life of the original contract, unless the contracting officer orders a recertification. The agency would not get small-business credit for those task order awards.

• Joint Employer Rule: On Feb. 26, the National Labor Relations Board canceled its decision made two months before to reverse an Obama Administration standard for joint employers. The cancellation followed a report from the NLRB Inspector General that disqualified one of the NLRB board members from voting due to a conflict of interest.

        The original Obama-era standard remains in place. Under the standard, two or more entities would be deemed joint employers if there is proof that one entity has exercised control over essential employment terms of another entity’s employees. Read more at http://goo.gl/AYoqN3 .

• DOD Mentor-Proteges: A DOD final rule went into effect on March 23, 2018 to extend the DOD Pilot Mentor-Protege program for three years to Sept. 30, 2021. It also set new eligibility criteria for proteges, including that they must be less than half as large as the size standard set for its industry NAICS code by the SBA. The small vendors must fit an SBA socio-economic category, or their owners must be tribes, severely disabled or must meet criteria as a nontraditional supplier of critical defense capabilities. Learn more at http://goo.gl/3w1WjG.
• DOD post-award debriefings: A DOD class deviation went into effect on March 22, 2018 to allow enhanced post-award debriefings to unsuccessful bidders. There also was new guidance on suspension of performance following notice of a protest filed with the GAO. Read more at https://www.acq.osd.mil/dpap/policy/policyvault/USA000563-18-DPAP.pdf.
• Electronic invoices: NASA published a final rule to have invoices for fixed-price contracts and fee vouchers for cost-type contracts submitted electronically. The rule went into effect April 26, 2018. (http://goo.gl/CeeXTc).

       Read Part II of the 2018 Regulations Review in the next issue of Set-Aside Alert.

       

Survey: Shutdown hurt small vendors’ trust in government