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Friday Flash, 07.03.13

Comment of the Week

Today, July 3rd, marks the 150th anniversary of the last day of the Battle of Gettysburg.  On that fateful day, General Lee ordered “Picket’s Charge,” a frontal assault on the Union lines.  Confederate troops briefly broke through one small section of the Union lines – a location forever referred to as the “High Water Mark of the Confederacy.” However, at the end of the day the Picket’s Charge was repulsed and the Union won a great victory.  Union victory at Gettysburg marked the beginning of the end of the Civil War.  The next day, Vicksburg fell to General Grant and the entire Mississippi River was under Union control splitting the Confederacy. It was only a matter of time before the Union would be restored!

Casualties at Gettysburg were staggering.  Close to 50,000 Union and Confederate troops were killed, wounded or missing.  Recent analysis puts the total number of men killed in the Civil War at approximately 750,000, more than all of our other wars combined.  It is estimated that some 22 percent of men aged 20 to 24 died as a result of the Civil War. Not to mention the tens of thousands of men who survived the war but were left physically and/or emotionally injured for the rest of their lives.

Gettysburg is one of my favorite places.  I have walked the battlefield well over 25 times.  My favorite spot is Little Round Top—where Joshua Lawrence Chamberlain led the 20th Maine during one of the key engagements on the second day of the battle.  I encourage all Friday Flash readers to visit Gettysburg.  Learn about the battle, its importance in setting the course of our history, and most importantly, the sacrifice of those who fought and died to preserve the Union.

On November 19, 1863, a ceremony was held to dedicate the Gettysburg National Cemetery.  President Abraham Lincoln delivered the “Gettysburg Address”—words that today are in stone at the Lincoln Memorial.   The Gettysburg Address speaks to that sacrifice and why it was and remains so important to the freedom of man:

Four score and seven years ago our fathers brought forth on this continent, a new nation conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.  We are met on a great battle-field of that war.  We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live.  It is altogether fitting and proper that we should do this.

But in a larger sense, we can not dedicate – we can not consecrate – we can not hallow – this ground.  The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract.  The world will little note, nor long remember what we say here, but it can never forget what they did here.  It is for us the living, rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.  It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we take increased devotion to the that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth. 

As you celebrate Independence Day tomorrow, please take a moment to remember our history.  Remember the ideals upon which our country was founded.  Remember those who sacrificed in the name of those ideals.

God Bless You and God Bless America!

Roger Waldron



GAO Recommends Goals & Metrics for DoD Service Acquisition

In a recent report, the Government Accountability Office (GAO), tasks the Department of Defense (DoD) with establishing goals and metrics to better track its progress in improving service acquisition. The National Defense Authorization Act for Fiscal Year 2012 mandated that GAO report on DoD’s actions, including the implementation of its Better Buying Power (BBP) initiative, to improve service acquisition and management. As a result, the GAO conducted this study and examined the actions DoD has taken to respond to legislative requirements and how DoD determines the effects of its actions to improve service acquisition. “DoD is not yet positioned to determine what effects [their] actions have had on improving service acquisition,” the GAO noted. In order to mitigate the lack of goals and metrics, GAO recommends DoD follow three actions:

  • Identify baseline data on the status of service acquisition, in part, by using budget and spending data and leveraging its ongoing efforts to gauge the effects of its actions to improve service acquisition,
  • Develop specific goals associated with their actions to improve service acquisition, and
  • Establish metrics to assess progress in meeting these goals.


Government Closer to Reaching Small Business Goal

On Tuesday the Small Business Administration (SBA) reported that the Federal Government failed to meet the goal of awarding 23% of all prime contracts to small businesses for FY 2012. This past fiscal year, 22.25% of contracts went to small businesses. The percentage is higher than in FY 2011, which was at 21.65%.  Although agencies did not reach the goal, John Shoraka, associate administrator for contracting and business development at SBA, wrote in a blog post that the government has “made significant impact in several key areas of small business contracting, including exceeding the goal for service disabled veterans for the first time and delivering the highest percentage of contracts to small disadvantaged businesses to date.”


USDA Receives FedRAMP Certification

The U.S. Department of Agriculture (USDA) is the first Federal agency to be certified under the Federal Risk and Authorization Management Program (FedRAMP) offering cloud services to Federal agencies. USDA’s National Information Technology Center (NITC) provides infrastructure-as-a-service exclusively to state, local and Federal government entities.


ESPCs Remain in Limbo Despite Senate Intervention

Senate Energy and Natural Resources Committee chairman Ron Wyden (D-OR) wrote a letter to President Obama asking for Office of Management and Budget (OMB) approval of energy savings performance contracts (ESPCs) to increase the efficiency of Federal data centers. Senator Wyden is concerned about the hold that OMB placed on the Department of Energy (DOE) Energy Savings Performance Contracts (ESPC) plan in March. OMB responded to Senator Wyden’s letter on June 19 stating that it is working with the Council on Environmental Quality “to ensure quality and expedience through the contracting process,” but did not address the DOE holding issue specifically.


CGP Hosts Buildings Dialogue with GSA NCR

The Federal Buildings Committee held a “myth-buster’s” dialogue last week with a special guest from the Public Buildings Service National Capital Region (NCR) at GSA.  Mina Wright, director of the Office of Planning and Design Quality (OPDQ), spoke with members about how her team of architects, urban planners, interior designers, engineers and contracting staff is supporting Federal agencies in the Washington, D.C. area. Their work on Federal buildings is focused on four main areas:

  1. Mobile workplace
  2. Retrofits (especially Sustainability)
  3. Modernization
  4. Security

The OPDQ is the lead for the mobile workplace initiative. Mina Wright explained that agency efforts to reduce the Federal property footprint are likely to continue for the next 5 to 10 years.  However, the transition to an alternative workplace model is not easy. According to Ms. Wright, there is a lot of interest from customer agencies in this new model because of the potential to save taxpayer dollars.  The challenge is educating agencies about the complexities involved in such a transition.  Mina Wright advised that there is a huge need for change management services to support Federal agencies and employees in this area.

Given the age of many of the Federal buildings in the Washington D.C. area, there is currently a big focus on repairs and alterations.  There are also a good number of energy retrofits coming down the pike.  Soon many of the D.C. area Federal buildings will reach 50 years and will be eligible for the National Register of Historic Places, the nation’s listing of historic properties.  The government will need support in determining which buildings are eligible for the register.

Ms. Wright suggested that physical security will also be a major theme for Federal buildings projects over the next 10 years.  A current project to increase security around the perimeter of the Department of Commerce is an example of the security related work that the OPDQ is involved in.

The Coalition’s Federal Buildings Committee sincerely appreciates Mina Wright for speaking with members about current initiatives within the OPDQ.  To learn more about how you can get involved in the committee, contact Aubrey Woolley at


Legal Corner

Beware the Anti-Deficiency Act and the New Interim Rule Regarding Indemnification Clauses in Social Media and License Agreements

By Jason N. Workmaster, Partner & Marques O. Peterson, Associate, McKenna Long & Aldridge LLP

On June 21, 2013, the FAR Council issued an immediately-effective interim rule  that provides that any indemnification clause that is included in an End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument and that would create a violation of the Anti-Deficiency Act (31 U.S.C. § 1341) (the “ADA”) is unenforceable against the Government—regardless of actions a contracting officer might have taken indicating acceptance of the clause.  See 78 Fed. Reg. 37,686 (Jun. 21, 2013).  The ADA is a Federal statute that, among other things, prohibits government employees from entering into an “obligation exceeding an amount available in an appropriation or fund for [that] obligation.”  31 U.S.C. § 1341(a)(1(A).  The FAR Council issued the interim rule “to address concerns [relating to the ADA] raised in an opinion from the U.S. Department of Justice (DOJ), Office of Legal Counsel (OLC) involving the use of unrestricted, open-ended indemnification clauses in acquisitions for social media applications,” even though the Government contends that, even without the regulatory change, the clauses in questions were unenforceable under existing law.  Id.

Recently, government officials have become concerned about the use by government employees of internet based social media applications and licenses, and the specific terms of their respective agreements for these applications.  The concern arose from the recognition that many supplies or services purchased by government employees through social media applications are subject to supplier license agreements, particularly in information technology acquisitions.  As a result, in a March 2012 opinion, OLC addressed the circumstance in which a government purchase card holder, in the course of registering for a social media or license agreement account, consents to an online TOS agreement that holds the provider of the service harmless in the event that harm is caused to a third party when the application is used by the Government.  According to the OLC, such a circumstance amounts to the government employee binding the Government, without statutory authorization or other exception, to an open-ended, unrestricted indemnification term.  The OLC contends that this constitutes an ADA violation because the agency’s agreement to an open-ended indemnification clause, such as the TOS described above, could result in the agency’s legal liability for an amount in excess of the agency’s appropriation.

Responding to the OLC opinion,  the Office of Management and Budget (OMB) issued a memorandum on April 4, 2013 outlining management actions to ensure agencies act in compliance with the ADA and consistent with the OLC opinion.  See OMB Guidance M-13-10, Antideficiency Act implications of Certain Online Terms of Service Agreements, available at

Prompted by the OMB memorandum, the FAR Council drafted this interim rule to address the perceived risk of an alleged ADA violation arising from indemnification clauses in the TOS of social media products.  Moreover, the interim rule raises the possibility of additional coverage in the FAR to address other  clauses in these TOSs that the Government apparently believes may create ADA violations.  For example, the FAR Council highlighted a clause – one requiring the automatic renewal of subscription service – that it asserts might violate the ADA if it obligated the Government to pay for supplies or services in advance of the agency’s appropriation.  Such additional coverage, however, was left to another day and is not included in the current interim rule.

Instead, for now, the interim rule amends FAR parts 12, 13, 32, 43, and 52 to state that indemnification clauses that violate the ADA are unenforceable, as noted above.  While adding little to existing law, it is likely that these changes will make it at least somewhat harder for contractors to demonstrate that the Government is bound by these indemnification provisions—which the Government contends were unenforceable anyway.

In any event, written comments about the rule are due to the Regulatory Secretariat on or before August 20, 2013, and this interim rule is a good reminder that the Government remains vigilant about using the ADA and its regulation-making power to the fullest extent possible.


Save the Date – GSA Communications Forum – July 31st

Interested in actionable information about the GSA market and customer base? On July 31, 2013 key officials of GSA’s Federal Acquisition Service (FAS) will join the Coalition to discuss GSA’s marketing message and initiatives to translate that message into increased market share.

A GSA panel led by Tami Riggs, Assistant Commissioner, Office of Customer Accounts and Research will help contractors understand and convey the marketing message regarding GSA’s  government-wide contracting capabilities and opportunities for the agency to increase efficiency, reduce costs and address contract duplication across the federal government.  This is a must attend event for  GSA contractors that wish to better understand the GSA market, more strategically target prospective federal customers or improve market share.

This event will be held at the Tower Club on July 31st.  Registration and networking at 8:00am with the program to commence at 9:00am.  Registration information will be coming soon!

Please contact Athena Oliff at if you have any questions.


Premier Member Event – July 18th

The Coalition would like to express our appreciation for our Premier (and Keystone) members by hosting our 2nd complimentary “Premier Only Event” of 2013.  Please join us in a discussion of FAS operational issues with Tom Sharpe, Commissioner of the Federal Acquisition Service.  The event will be held at the GDIT offices in Merrifield on July 18th at 11:30 am (lunch will be served), and is open to Premier and Keystone members only.  Please click here to register.  If you would like to discuss joining as a Premier Member, please contact Denise Mileski at  or (202)-315-1055.

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