This week marks the beginning of the local football season with high schools and youth leagues beginning camps and tryouts—and YES, the Green Bay Packers are “in camp” too! As such it is appropriate to focus on Thought No. 11 of the Thirteen Thoughts for 2013: Requirements Development—the blocking and tackling of federal procurement. Just as blocking and tackling are the foundation for winning football, requirements development is the foundation for best value procurement outcomes. Focusing on requirements development can achieve significant savings and performance improvement for the federal government. As the Department of Homeland Security (DHS) has stated in its guide on developing Operational Requirements Documents:
Research conclusively shows that the foremost reason why programs or projects do not succeed is due to the lack of detailed requirements at the initiation of a program or project. Efforts invested up front to develop a clear understanding of the requirements pays dividends in the positive outcome of programs—not to mention the savings in both time and money in corrective actions taken to get a program back on track (if it is even possible!).
See page 6 of “Developing Operational Requirements: A Guide to the Cost-Effective and Efficient Communication of Needs”, Version 2.0, November 2008, Department of Homeland Security. [www.dhs.gov/xlibrary/assets/Developing_Operational_Requirements_Guides.pdf]
The Office of Federal Procurement Policy’s (OFPP’s) Myth-Busters campaign grew out of a concern that, in particular, during the requirements development phase, the lack of communication between government and industry was increasing the risk of successful procurement outcomes across the federal enterprise. The February 2, 2011 OFPP Myth-Busters memo states in the first paragraph, “[a]ccess to current market information is critical for agency program managers as they define requirements and for contracting officers as they develop acquisition strategies, seek opportunities for small business, and negotiate contract terms.” OFPP is to be credited with recognizing the need to improve communication around requirements development and acting on that need.
The DHS statement regarding requirements development is a fundamental procurement truth regardless of whether the procurement involves a complex weapons system or the strategic sourcing of commercial products and/or services. The key to increasing competition and achieving savings is the clear, concise and consistent communication of requirements. That is why the current federal strategic sourcing initiative (FSSI) strategy should be reexamined. The current use of government-wide Blanket Purchase Agreements fails to take advantage of agency specific requirements. Simply put, GSA is not the holder of customer agency mission requirements. Customer agencies control, understand, and manage their budget profile, ordering and volume patterns, functional requirements, and delivery parameters. The current use of generic, government-wide strategic sourcing BPAs limits the ability of customer agencies to strategically tailor their requirements based on their budget profiles, ordering and delivery patterns and volume commitments. These generic, government-wide FSSI BPAs represent vertical contract duplication, limit competition, negatively impact small business and threaten the long term commercial supplier base.
A strategic sourcing approach that focuses on establishing agency specific BPAs under GSA’s Multiple Award Schedule (MAS) program would achieve significant savings across the federal enterprise while maintaining competition, providing greater opportunities for small business and ensuring a robust long term commercial supply chain. The Coalition’s BPA Best Practices provides a blueprint for the effective use of BPAs by customer agencies to achieve savings.
GSA has a vital role to play in strategic sourcing. The MAS value proposition is powerful: customer agencies can quickly, efficiently and effectively achieve best market pricing through competition for specific requirements at the task/delivery order level. Customer agencies should be empowered to establish MAS BPAs and/or orders based on their specific requirements and not forced to use generic, government-wide BPAs. Leave the blocking and tackling to customer agencies, with GSA focusing on improving the playing field of MAS contracts.
Join our Two Part GSA e-Tools Myth Buster Webinar series as a 4th quarter refresh to increase your market share! Attending both Part 1 (August 15) and Part II (August 22) will help you to successfully navigate GSA e-Tools and meet your objective to increase sales. Attendees will have the opportunity to ask questions and learn about how GSA e-Tools benefit your company. You will hear how the Federal market place uses these tools and how you can benefit from this knowledge. Don’t miss the opportunity to hear from a GSA e-Tools domain expert!
Part I – August 15, 12:30 – 1:30pm
Part II – August 22, 12:30 – 1:30pm
- Tim Dempsey, Chief, Systems, Office of Acquisition Management Federal Acquisition Service (FAS)
- Bill Gormley, President, The Gormley Group
- Carolyn Alston , Executive Vice President & General Counsel, The Coalition for Government Procurement
Who Should Attend? GSA Contractors, Business Developers, Marketing Managers, Contract Managers, Sales, and Market Research professionals.
For more details and to register, visit https://thecgp.org/event/gsa-e-tools-myth-buster-webinar. If you have any questions, please contact Athena Oliff at firstname.lastname@example.org or (202) 315-1052.
The Senate Committee on Homeland Security and Governmental Affairs held a hearing on July 15 exploring how Strategic Sourcing could be increased to better leverage the Federal government’s buying power. The Coalition for Government Procurement submitted written testimony to the Committee this week recommending that a broader approach to strategic sourcing be taken that will result in even greater taxpayer savings than the current framework. In order to maximize savings and increase efficiencies in Federal procurement, we urge that the government adopt the following strategic acquisition principles:
- Reduce Contract Duplication through Office of Management and Budget (OMB) guidance that requires Federal agencies to use pre-existing government-wide contract vehicles like GSA Federal Supply Schedule contracts and information technology government-wide acquisition contracts (GWACs) to the maximum extent practicable.
- Put “Commercial” back into Commercial Item Contracting by eliminating government-unique requirements that make doing business with the Federal government more costly without adding value for agencies or the American taxpayer.
- Utilize BPA Best Practices that focus on utilizing agency-level strategic sourcing BPAs with specific volume commitments and requirements rather than generic government-wide Federal Strategic Sourcing Initiative (FSSI) contracts that negatively impact the Federal supply chain and small business in particular.
- Measure and Reduce Total Acquisition Cost (TAC) as a key component of strategic sourcing. TAC should include the government’s administrative costs for planning, conducting acquisitions, data collection, and contract management.
Read the full testimony here and check the Friday Flash for further updates on strategic sourcing.
Our annual Charity Golf Tournament has even greater meaning as we are now also honoring our good friend and colleague, Joe Caggiano. Joe was not only a 23-year veteran of the federal contracting marketplace but a naval veteran as well. We look to honor his memory and his passionate support of our nation’s heroes through the Joseph P. Caggiano Wounded Veteran Golf Tournament.
How will member participation in the golf tournament support wounded veterans and their families? Hope for the Warriors will use the contributions to provide a full cycle of care to service members, veterans and military families including Employment & Education, Clinical Care Management, Recreational & Athletic Programs, and Community Outreach. Also, by participating in the tournament you will help Operation Second Chance provide emergency financial assistance to wounded, injured and ill veterans, in the form of rent, utilities, daily essential items, travel and morale. These organizations are deeply grateful for your continued support of our heroes!
The tournament will be August 28 at the Whiskey Creek Golf Club in Ijamsville, Md. If you would like to participate as a player, a sponsor, or both – please contact Athena Oliff at email@example.com. A special thank you to our title sponsor, Price Waterhouse Cooper, as well as our event sponsors, Cohn Reznick, Integrity Consulting and Baker Tilly for their generosity in making this event possible.
GSA’s Federal Acquisition Service (FAS) joined the Coalition in a myth-buster’s dialogue on Wednesday to discuss their current marketing message and efforts to increase market share to 17% by the end of this fiscal year. GSA speakers included Tami Riggs, Assistant Commissioner, Customer Accounts and Research (CAR); Houston Taylor, Assistant Commissioner, Office of Acquisition Management; and Greg Rollins, Acting Director in the Center for Acquisition Support.
Tami Riggs explained that market share is GSA’s way of measuring the value that is delivered to Federal agencies over time. For example, GSA expects that if it offers an increase in high quality services at fair and reasonable prices to customer agencies, its share of the Federal market will increase as a result.
GSA has also been looking into what data they can give to Federal agencies as they educate them about the benefits of using GSA contracts. Available data indicates that acquisition lead times are from 20 to 50% faster when agencies use GSA contracts. The results of GSA customer surveys support this view. GSA surveys show that the top reason why Federal agencies use Schedules to buy services and products is “flexibility and ease of use”.
The Coalition has also urged GSA to allow for Other Direct Costs (ODCs) on GSA Schedules to increase market share. Discussions concerning whether and how ODCs may be implemented are still ongoing within the agency despite the opportunity for GSA to serve the needs of many more Federal customers through this capability.
Within General Supplies and Services (GSS), GSA is addressing customer feedback about how the Schedules program can be improved. According to Greg Rollins, some of the areas GSS is focusing on to enhance customer satisfaction are: clarifications of fair and reasonable pricing (based on Most Favored Customer and the marketplace), utilization of manufacturer part number, full catalogue offerings, and an increase in AbilityOne certified vendors. GSS is also focusing on streamlining solicitations through the Schedules Modernization initiative.
Whether FAS will resume its largest marketing event for Federal agencies, GSA Expo, in 2014 remains unclear. The CAR is currently assessing what Federal attendance for the conference might be in San Diego. GSA plans to notify vendors about their decision in the fall of 2013.
The Coalition sincerely appreciates Tami Riggs, Houston Taylor, and Greg Rollins for the engaging myth-buster’s dialogue about GSA’s programs and its plans for market share growth.
The One Acquisition Solution for Integrated Services (OASIS) Final Request for Proposals were released Wednesday, July 31 on FedBizOpps. GSA estimates that the addressable market for the professional services covered by OASIS is about $60 billion.
1. OASIS Unrestricted Solicitation
2. OASIS Small Business Solicitation
The Coalition would like to thank the entire team at the OASIS Program Management Office, and Jim Ghiloni in particular, for the active myth-buster’s dialogue throughout the development process. Responses are due to the OASIS Program Office in Fort Worth on September 17, 2013 at 4pm Central Daylight Time.
Last week, Office of Management and Budget (OMB) director Sylvia Burwell and Office of Science and Technology Policy director John Holdren provided guidance to agencies on the Administration’s science and technology priorities for the FY2015 budget. In the memorandum, OMB directs agencies to reallocate available resources from lower priority areas to science and technology activities in accordance with its FY15 priorities. OMB will work closely with agencies to make hard decisions that are necessary to reduce the deficit while investing in critical priorities, including research and development. The Administration describes the following as FY15 Budget Multi-Agency Priorities:
- Advanced manufacturing
- Clean energy
- Global climate change
- R&D for informed policy-making and management
- Information Technology
- R&D for National-Security Missions
- Innovation in Biology and Neuroscience
- Science, technology, engineering, and mathematics (STEM) education
- Innovation and commercialization
For the full memo, please link to it above.
The Committee for Purchase from People Who Are Blind or Severely Disabled has published new sourcing requirements for products on the AbilityOne procurement list. This publication seeks to clarify the sourcing requirements for products on the procurement list that satisfy government-wide requirements and are therefore subject to the AbilityOne procurement preference. It was previously noted that the General Services Administration (GSA) was the only agency allowed rights to contracting activity for products that have the procurement list preference across all government entities (the A List) and those that have the preference across a broad selection of agencies (the B List).
The new sourcing requirements now designate the Defense Logistics Agency (DLA) as an additional contracting activity for products on the A List and B List. This change sets out to improve the availability of AbilityOne Program products to civilian and military agencies.
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.
DPAP Reminder on AbilityOne
Defense Procurement and Acquisition Policy (DPAP) director Richard Ginman released a July 26 memorandum reminding Department of Defense (DoD) contracting professionals of the availability of AbilityOne Base Supply Centers (BSCs) for office supplies, cleaning products, and general maintenance and repair items. The memo was released as the AbilityOne Program celebrates its 75 year anniversary.
Ginman noted, “The BSCs are added to the Commission’s Procurement List as AbilityOne service projects in accordance with 41 CFR Chapter 51 and, as such, are authorized distribution sources for AbilityOne products and commercial (non-AbilityOne) products.”
The BSCs provide a direct and positive impact on the lives of thousands of individuals with disabilities by employing over 300 people who are blind or who have significant disabilities in retail positions.
Check out a list of supply centers! http://www.abilityone.gov/distributors/base_supply.html
DHS Releases RFI on Big Data
The Department of Homeland Security (DHS) posted to FedBizOpps.gov a request for information (RFI) on Big Data technologies that enable and enhance homeland security missions and operations. According to the RFI, commercial support for open source storage and analytics offer potential improvements to data driven business models for homeland security. Specifically DHS is seeking information on cost-effective opportunities that improve mission and achieve operational efficiencies through advanced analytic automation for DHS and the Homeland Security Enterprise (HSE). Up to 20 respondents of important Big Data capabilities in the market place will be invited to make a technology presentation at DHS scheduled for September 27, 2013 from 8am-5pm. Members are invited to submit detailed information discussing their capabilities to Cathy Collins, at firstname.lastname@example.org by 5:00 PM Eastern Time (ET) on August 23, 2013.
House Passes Limitations on Conference Spending
The House recently approved two separate bills that intend to limit federal conferences due to recent concerns from the Hill about the misuse of government funds. The House passed The Government Spending Accountability Act unanimously by voice vote earlier this week. The bill would cap the amount of funds that can be spent on a single conference to $500,000. The bill also cuts spending on travel expenses at each government agency by nearly 30 percent of what it was in the 2010 fiscal year.
The House also passed legislation Wednesday in response to conference-related scandals at the Internal Revenue Service (IRS). The Stop Playing on Citizen’s Cash Act would halt conferences at the IRS until the agency has adopted all of the recommendations made by the IRS inspector general in its report investigating an IRS conference in Anaheim, California. Next, both bills will be under consideration by the Senate.
Cybersecurity Act of 2013
This week, the Senate Commerce, Science, and Transportation Committee passed the Cybersecurity Act of 2013 (S. 1353). The bill contains provisions meant to strengthen cyber defenses of the nation’s critical infrastructure and enhance the government’s cybersecurity research and development efforts. The bill specifically directs the National Institute for Standards and Technology to “on an ongoing basis, facilitate and support the development of a voluntary, industry-led set of standards, guidelines, best practices, methodologies, procedures, and processes to reduce cyber risks to critical infrastructure.”
Senators: Improve Federal Property Management
On Monday, Senate Homeland Security and Governmental Affairs Committee Chairman Tom Carper (D-Del.) and Ranking Member Tom Coburn (R-Okla.) introduced the Federal Real Property Asset Management Reform Act of 2013. Among other things, a press release posted on the Homeland Security and Governmental Affairs Committee website explains that the bill would:
- Require each agency to conduct an inventory of its real property and identify excess and underutilized property, reporting it to GSA.
- Create the Federal Real Property Council (FRPC) and direct the council to establish an asset management plan and performance measures.
- Task the GSA Administrator with creating and maintaining a single database of all real property owned by federal agencies.
- Require agencies with independent leasing authority to submit an annual report detailing its leases.
- Establish a pilot program to expedite the disposal of federal properties, providing OMB the ability to dispose of up to 200 properties each year with priority going to those properties that have the highest fair market value.
For more information on the bill, please link to the press release above, as the full text has not been provided yet.
GSA Launches Enhanced Customer Service
On Wednesday, GSA announced on its Interact portal the launching of Enhanced Customer Service Delivery (ECSD). According to the post, ECSD will provide an enhanced, centralized contact center support, in which customers will begin to experience new and streamlined ways of interacting with the Multiple Award Schedules (MAS) program. It will be fully implemented by August 1, 2013. The model includes consolidating the seven toll-free customer service numbers into one, single, toll free number for all Acquisition Operations (AO) schedules: 1-800-488-3111. In addition, GSA has incorporated the standardized email address of email@example.com on various locations on the web, giving customers prompt access to Subject Matter Experts.
Save the Date – 2013 Fall Conference – October 30th
Join the Coalition on October 30 for its 2013 Fall Training Conference: The New Federal Market. Hear from Federal agency Chief Financial Officers, Congressional staff and industry leaders about the evolving government market and how best to adjust to this new environment. The conference will be held at the Fairview Park Marriot in Falls Church, VA. More details will be available soon. Please contact Athena Oliff at firstname.lastname@example.org to learn more about sponsorship opportunities or for other information about the event.