Continuing the Dialogue is More than Checking the Box!
In Roger Waldron’s absence we’d like to build on a previous comment written by him on the importance of robust communication to maintain a federal acquisition system that responds to the needs of federal agencies, contractors and taxpayers. As GSA develops strategic sourcing vehicles and restructures its Multiple Award Schedule contract vehicles, now more than ever the message that communication requires more than checking a box, resonates with Coalition members.
Thought No. 10: Myth-Busters – Continuing the Dialogue is More than Checking the Box! Given the current budgetary challenges we face, continuing the dialogue among all stakeholders on key acquisition policies, procedures and programs is vital to improving the efficiency and effectiveness of the procurement system. Over the last decade we have seen the growing unease and corresponding reluctance on the part of federal acquisition professionals to take advantage of the communication tools/opportunities available to them as part of the acquisition process. At the same time it is fair to say that companies have grown increasingly frustrated with the lack of communication. To its credit the Administration recognized this unhealthy trend and responded with the Office of Federal Procurement Policy Myth-Buster’s memorandum. Indeed, the “Myth-Busters” memorandum is fundamentally consistent with the President’s focus on transparency in government. What can be more transparent than engaging in dialogue with companies regarding key procurements and programs that support agency missions?
As the central procurement arm of the federal government, the General Services Administration (GSA) is “strategically positioned” to enhance and improve communications among all stakeholders in the procurement system. GSA provides the framework for customer agencies and contractors to work together to support the mission. At the intersection between customers and contractors, GSA can have a profound impact on improving communication and outcomes for all. GSA has been taking steps to increase engagement with its customer base and contractors regarding its new mission statement.
Indeed on May 22nd, GSA’s management participated in the GSA Business Roundtable, hosted by the Coalition. This event provided an excellent opportunity for a cross-cutting dialogue between GSA leadership and Coalition members regarding GSA’s new mission statement and government-wide acquisition programs. It was an opportunity to establish an ongoing conversation that focuses on improving the efficiency, effectiveness and openness of GSA‘s procurement programs. The Coalition would like to see that type of two way conversations become an ingrained part of each new acquisition program the agency develops. GSA is heading in the right direction, but has yet to arrive. The agency extensively uses GSA Interact and other media to announce changes and solicit comments on upcoming solicitations. Recurring themes have developed across industry responses:
- To get good pricing the government must have a good statement of requirements and some level of commitment by customer agencies
- Data reporting and other government unique terms add costs to contractors and those costs will ultimately be passed on to federal customers and taxpayers
While GSA has demonstrated a willingness to adopt and accommodate some changes it has yet to incorporate fundamental strategies that would simplify processes and incorporate commercial practices that would actually lower cost and improve service. These issues strike at the core of the relationship between the government and its contractors. Addressing these fundamental issues is critical to maintaining an active contractor base that provides the level of competition which agency customers anticipate at the task order level.
The Coalition believes that GSA’s increased use of commercial practices would significantly contribute to achieving the GSA Administrator’s strategic business goal of capturing 17% market share. We appreciate the opportunity to work with GSA to incorporate changes that work for government, industry and taxpayers.
Vice President & General Counsel
The U.S. General Services Administration (GSA) announced the launch of reverseauctions.gsa.gov, a government-managed reverse auction site which is now available through GSA’s National Information Technology Commodity Program (NITCP). The new tool is designed to deliver increased savings for federal agencies on the most commonly purchased office products, equipment and simple services, and provide an additional resource for small businesses to compete for government business.
According to GSA, the reverse auction platform will reduce acquisition processing time and costs, drive prices and costs down, improve transparency and the collection of data, and allow for small business set-asides.
As of July 1, Federal agencies may use the GSA platform to perform reverse auctions through select GSA’s Multiple Award Schedules. They may also establish select blanket purchase agreements (BPAs) for commodities like office supplies, laptops, tablets and monitors, as well as for simple services like warranty, training and installation. A list of schedules and programs participating GSA Reverse Auctions is below:
GSA will announce training for vendors on the Reverse Auction tool on GSA Interact.
GSA is scheduled to release the OASIS Request for Proposal (RFP) on July 24 according to a pre-solicitation notice posted on FedBizOpps.com. “The final solicitation will be available on or about July 24, 2013,” the notice reads. A due date for proposals will be included with the final solicitation release. The solicitation will be available for download through the Federal Business Opportunities (FBO) website at www.fbo.gov/ (Solicitation Number: GS00Q-13-DR-0001).
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 firstname.lastname@example.org or (202)-315-1055.
The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on Monday, July 15 titled, “Strategic Sourcing: Leveraging the Government’s Buying Power to Save Billions”. Witnesses to provide testimony are Administrator for Federal Procurement Policy, Joe Jordan; GSA Administrator Dan Tangherlini; and Director of Acquisition and Sourcing Management at the Government Accountability Office, Cristina Chaplain. The July 15 hearing is scheduled for 3:00pm EST and can be viewed online at www.hsgac.senate.gov/hearings/strategic-sourcing-leveraging-the-governments-buying-power-to-save-billions-. The Coalition plans to submit written testimony for the hearing which we will share with members in next week’s Friday Flash.
Yesterday GSA released a set of updates that were made to the Federal Strategic Sourcing Initiative (FSSI) JanSan (Janitorial and Sanitation) and MRO (Maintenance, Repair, and Operations) draft RFQs. The updates can be viewed at the links above. Changes include the following:
JanSan Pool Categories have been reduced from five to four:
- Cleaning Compounds and Related Dispensers
- Non-Motorized Cleaning Equipment and Waste Receptacles
- Paper Products and Related Dispensers
- Motorized Cleaning Equipment and Accessories
MRO Pool Categories have been reduced from four to three:
- Tools and Tool Cabinets
- Paints and Finishes
The total number of awards for both the JanSan and MRO draft RFQs has increased. For the full posts members are encouraged to review the updates at the links above.
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 http://www.whitehouse.gov/sites/default/files/omb/memoranda/2013/m-13-10.pdf.
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.
Draft suspension and debarment legislation proposed by House Oversight and Government Reform Committee Chairman Darrell Issa was the topic of discussion at an event today hosted by the George Washington University Law School and TechAmerica.
A draft of the Stop Unworthy Spending Act (SUSPEND) Act was released in February 2013 to gather government and industry feedback on Chairman Issa’s proposal to improve the Federal government’s suspension and debarment system. The underlying concern on the Hill is that contracts and grants continue to be awarded by the federal government to companies and individuals that are or should be banned from receiving taxpayer funds.
The current draft of the bill proposes that more than 40 suspension and department offices and functions at the agency level be consolidated into one centralized board at the General Services Administration (GSA). The legislation is also designed to:
- Consolidate regulations governing suspension and debarment procedures
- Ensure transparency in suspension and debarment proceedings, and consistent standards to treat all parties fairly and expeditiously, including small businesses with limited legal resources
- Provide an expedited review process to handle contract or grant fraud in a contingency environment
A panel of experts at today’s SUSPEND Act event at GW Law School provided some initial comments on the draft legislation. There was concern about some of the unintended consequences of consolidating suspension and debarment authority within once civilian agency board. Some panelists expressed that each agency is in the best position to make these decisions versus an outside authority. This change could also result in a slower, less efficient and more bureaucratic process. It was also suggested that efforts to improve the system should be focused on the current challenges today versus shortcomings from the past.
This the second time that House Oversight & Reform Committee Chairman Darrell Issa has provided a discussion draft of contracts related legislation in advance which has been greatly appreciated by the acquisition community.
According to Fierce Government, GSA’s newly formed Governmentwide Travel Advisory Committee will hold a meeting on July 30 in which new travel regulations and policies will be discussed. The committee aims to regulate existing travel policies, processes and procedures for federal government employees. Participants range from the travel industry, convention representatives, to federal, state, and local government officials. Current federal travel regulations and the 2015 fiscal year Per Diem Rate methodology will be assessed. The committee begins its work in the wake of public scrutiny concerning an Internal Revenue Service incident in which $4.1 million in funds intended for hiring enforcement personnel was spent on a 2010 conference.
Mr. Nickolas Guertin, Deputy Assistant Secretary of the Navy, Research, Development, Test and Evaluation (DASN RDT&E) invites industry to participate in Round 2 of the Naval Business Innovation Initiative (BII) scheduled for July 15 through July 26. The following is a message from DASN RDT&E to industry about the upcoming game:
Business Innovation Initiative (bii)
Massive Multiplayer Online Wargame Leveraging the Internet (MMOWLGI)
In the biiMMOWGLI game in January 2013 where we explored the challenges to the Naval Open Systems Architecture strategy. We gained great insight into how industry views certain aspects of open business models, and the challenges they present to the acquisition workforce. Now we are ready for Round 2.
biiMMOWGLI Round 2 will focus on “OSA Incentives and Motivations.” In this round, we will explore the corporate profitability potential of different OSA business models, and examine the positive benefits to the warfighter, taxpayer, and acquiring organizations. Together, we are interested in finding innovative ways to effect better outcomes for all stakeholders.
biiMMOWGLI Round 2 will begin July 15th – 26th, 2013:
• The first five days will consist of card play;
• The next four days will be dedicated to action planning; and,
• In the final three days, everyone will have a chance to review action plans, vote and select winners.
The results of this game will be used immediately to formulate new guidance to Program Managers in the acquisition of National Security Systems. Your ideas are important!
Please pass this invitation along to your colleagues and encourage them to participate. To signup for an email notification for Round 2 registration, please visit https://mmowgli.nps.edu/bii. You will need to sign up with your organizational email as the game is for business professionals only. As a registered participant, you will select a pseudonym (game name) to ensure your anonymity throughout the game. You must be a U.S. citizen to play.
Ongoing game information is available at https://portal.mmowgli.nps.edu/bii and on our game blog at https://portal.mmowgli.nps.edu/bii-blog. Also, please take a moment to view the attached biiMMOWGLI flyer.
Every idea counts. We hope you will join us.
Play the game, change the game!
On July 31, 2013, key officials from GSA’s Federal Acquisition Service (FAS) will join the Coalition to discuss GSA’s marketing message and initiatives designed to increase market share.
GSA Administrator, Dan Tangherlini, has set an agency goal of having a 17% share of the federal market by the end of the fiscal year, with a goal of a 90 percent in 10 years. According to Administrator Tangherlini and Tom Sharpe, FAS Commissioner, GSA will increase savings across the federal government by increasing its market share.
- Understand GSA’s market strategy
- Learn more about its market growth initiatives
- Hear how the agency plans to achieve its goals
- Identify new ways to effectively market your GSA Schedules
A GSA panel led by Tami Riggs, Assistant Commissioner, Office of Customer Accounts and Research will help contractors understand and convey the marketing message about GSA’s government-wide contracting capabilities and how the agency can increase efficiency, reduce costs and address contract duplication for customer agencies.
This is a must attend event for contractors that wish to better understand the GSA market and more strategically target prospective federal customers through GSA Contracts.
Registration Fees and Information – Register Here!
8:00 am – Registration and Networking Breakfast
9:00 am – Program Begins
Keystone Member: Complimentary
Premier Member: $65
Regular Member: $75
Government: $15 – Must Show Government ID