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Federal Market Intelligence for Small Business |
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New regulations and final rules coming from GSA, DOL in 2023The General Services Administration and Labor Dept. are planning several new rulemakings and final rules potentially affecting small business federal contractors in the coming months. The Notices of Proposed Rulemaking (NPRMs) and Final Rules are listed in the Office of Management and Budget’s most recent Rule List with multiple agencies outlining plans for 2023. Here is a sampling of the potentially most significant plans for GSA, DOL and other agencies in the order of GSA’s forecasted release schedule. (Note: Set-Aside Alert published a list of upcoming rules for SBA & DOD in the Feb. 17 and March 3 issues). NPRM January 2023 (Not yet released) - Standardizing Federal Supply Schedule Clause and Provision Prescriptions: Proposal to standardize the identification of Federal Supply Schedule clauses, provisions, and references. “GSA will clarify the distinction between Federal Supply Schedule and the Multiple Award Schedule Program.“ GSA also aims to clarify the applicability of Federal Supply Schedule (FSS) clauses and provisions for FSS contracts managed by GSA and the Veterans Affairs Dept. While the GSA aimed to release the proposed rule in January 2023, it has not been released yet, according to Regulations.gov. NPRM January 2023 (Not yet released) - GSA Guidance for Non-Federal Entities Access to Federal Supply Schedules: Proposal to amend the GSA’s Acquisition Regulation (GSAR) R to streamline and clarify the requirements for use of Federal Supply Schedules by eligible non-Federal entities, such as state and local governments. This rule supports underserved communities to promote equity in the federal government. While this was anticipated in January it is not yet available, according to Regulations.gov. NPRM February 28 2023 - GSA’s Updating Payments Clause: Proposal to update GSAR to remove the clause regarding payments for non-commercial fixed price contracts for supplies or services. The clause currently requires the government to pay a contractor without an invoice, under certain circumstances. GSA has determined the clause is not in the best interests of the government. Comments are due by May 1. FINAL RULE February 2023 (Not released yet) - GSA’s Reformatting Clause for Direct 8(a) Contracting: Final rule to amend the GSAR to revise the formatting for a contact clause included in solicitations, contracts, and orders issued under GSA’s 8(a) Partnership Agreement. The clause being reformatted pertains to notification of competition limited to eligible 8(a) concerns. Directions for use of the clause currently are “buried in GSAR text, and do not follow standard GSAR conventions for clause prescriptions.” NPRM March 2023 (Not yet released) DOL Notification of Supply and Service Subcontract Awards: DOL’s Office of Federal Contractor Compliance Programs (OFCCP) proposes to add to regulations implementing Executive Order 11246 requiring contractors to provide notice to OFCCP when they award supply and service subcontracts. The notice would include information enabling OFCCP to schedule compliance evaluations. FINAL RULE March 2023 (Not released yet) - Pre-Enforcement Notice and Conciliation Procedures: DOL’s OFCCP proposes to modify certain provisions set forth in the Nov. 10, 2020 final rule regarding "Nondiscrimination Obligations of Federal Contractors and Subcontractors” and to make other related changes to the pre-enforcement notice and conciliation process. NPRM April 2023 - DOL’s Modernizing Affirmative Action and Nondiscrimination Obligations for Federal Contractors and Subcontractors: The DOL’s OFCCP will propose changes to modernize its Executive Order 11246, the Vietnam Era Veterans' Readjustment Assistance Act of 1974; and section 503 of the Rehabilitation Act of 1973 compliance programs. This will include recordkeeping and affirmative action program obligations for federal contractors and subcontractors. The proposal also will consider modifications in light of Executive Order 13988 on combatting discrimination on the basis of gender identity or sexual orientation. FINAL RULE May 2023 - DOL Employee or Independent Contractor Classification Under the Fair Labor Standards Act: Shortly before President Joe Biden’s Inauguration in January 2021, the Trump Administration published a final rule on independent contractor status under the Fair Labor Standards Act. Since then, DOL has published final rules to delay and withdraw the 2021 rule. In March 2022 a district court in Texas canceled the withdrawal of the rule. DOL has proposed to rescind the 2021 final rule and to establish an analysis to determine independent contractor status that is “more consistent” with existing judicial precedent and longstanding DOL guidance. NPRM July 2023 - GSA’s Federal Supply Schedule Economic Price Adjustment: Proposal to update the GSAR to clarify Federal Supply Schedule (FSS) policies and procedures regarding economic price adjustment. The rule will provide “unique guidance” for contracts based on commercial price lists and/or data reporting requirements. It also will address contracts without those features.
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