The beginning of Spring is only a few weeks away, which means that the Coalition’s annual Spring Training Conference is on the horizon! We are pleased to announce that registration is officially open (please click here for more details) for the 2023 Spring Training Conference – Procurement Watchwords for Fiscal Year 2023, which will take place on May 2-3 in Falls Church, Virginia. Be on the lookout for the release of the two-day agenda next week, which is filled with sessions that promise to provide attendees with access to the most up-to-date information impacting government contractors.
This year’s Spring Conference focuses on four major procurement “watchword” themes that will serve as driving forces for the acquisition system and government operations throughout the year. These watchword themes include Market Continuity, Cybersecurity, Supply Chain Security, and Sustainability. We look forward to hearing DoD, GSA, the VA, and other agencies share how these watchwords play a key role in shaping their policies and programs in 2023 and beyond.
During the conference, attendees will have the opportunity to hear updates on governmentwide procurements providing a crucial demand signal evidencing market continuity for both the government customer and industry partners. The agenda features panels focused on the next steps for several IT governmentwide acquisition contracts, including NASA SEWP, OASIS+, and Alliant 3. GSA also will provide the latest information on its Multiple Award Schedule program. During the healthcare-focused day, the VA will discuss its continued efforts of supplying its healthcare facilities through the Medical/Surgical Prime Vendor (MSPV) program.
Cybersecurity is essential for national security and the operations of the federal government, especially as cyber information sharing between the government and industry continues to grow. In 2023, several policy measures will be focused on strengthening the cybersecurity of the government and federal contractors. Guest speakers will address recent developments for multiple cybersecurity measures during the conference, such as the release of the Cybersecurity Maturity Model Certification (CMMC) DFARs rule and FedRAMP authorization.
Supply Chain Security
In 2023, we will see the implementation of laws and regulations focused on increasing supply chain resiliency. Attendees will learn more about these various regulations and their impact on the procurement system. Focus areas include the fiscal year 2023 National Defense Authorization Act, the use of Defense Production Act authorities, and the evolution from Buy American to Buy Allied. More importantly, the conference promotes continued engagement between government and industry that is vital to the success of these implementation efforts.
Sustainability, as both a performance measure and potential discriminator for federal contractors, will impact the procurement system in 2023. The conference will prepare contractors with guidance on upcoming sustainability requirements and standards. Panelists will cover sustainability-related programs and policies, such as the FAR proposed rule regarding disclosure of greenhouse gas emissions and climate risk, the EPA’s Environmentally Preferable Purchasing program, and healthcare-specific regulations.
As always, the Spring Training Conference will serve as a high-quality engagement for all professionals in the government contracting community, and we look forward to sharing more details about the conference in the coming weeks! In the meantime, we encourage you to register now by clicking here.
We would like to thank our current Platinum Sponsors, AvKARE and McKesson; Silver Sponsor, Sheppard Mullin; and Coffee & Networking Sponsor, SAIC, for their support of the Coalition and Spring Training Conference 2023! We urge you to check out our new Sponsorship Prospectus, which highlights a variety of Premier and Auxiliary sponsorship opportunities that are still available for your organization at the conference!
Select Committee on China Urges End to U.S. Dependence on Chinese Manufacturing
According to Reuters, the Congressional Select Committee on Competition with China focused on human rights in its first hearing. This initial hearing launches a broader effort to showcase the importance of competing with the People’s Republic of China to the American public, as well as the need to “selectively decouple” the U.S. and Chinese economies. The hearing focused on human rights issues, the need to deliver weapons and munitions to support Taiwan, Chinese influence on technology, and the need to end U.S. dependence on Chinese manufacturing. The committee hosted former National Security Advisor H. R. McMaster, former Deputy National Security Advisor Matt Pottinger, former political prisoner Tong Yi, and President of the American Manufacturing Association Scott Paul. One highlight of the hearing was the testimony of Matt Pottinger, who said that the United States should partner with technology firms to create holes in China’s “great firewall,” which prevents Chinese citizens from accessing large swathes of the internet.
NEW EVENT: Small Business Committee Meeting with OSDBUs
On March 22, the Small Business Committee will host a panel of leaders from Offices of Small Disadvantaged Business Utilization (OSDBU). The meeting will include OSDBU officials from the Department of Homeland Security, the Department of Health and Human Services, and the General Services Administration (GSA). Sharon Ridley, Executive Director of the Department of Veterans Affairs OSDBU, has also been invited.
The panel will discuss best practices for small businesses as well as agency insights. The meeting will be held from 10:00 – 11:00 AM EST at the offices of Holland & Knight, 800 17th ST NW, Washington DC. Virtual attendance is also available. To register, click here. For any questions or assistance with registration, please contact Joseph Snyderwine, JSnyderwine@thecgp.org.
NEW EVENT: OASIS+ Meeting with Tiffany Hixson, GSA, March 23
To provide feedback on the next draft of the OASIS+ solicitation, the Coalition will host a meeting with GSA Regional Commissioner and Assistant Commissioner for the Office of Professional Services and Human Capital Tiffany Hixson on March 23, 1:30 – 3:00 PM EST. The meeting will be held in a hybrid format, with in-person attendance at the offices of Northrop Grumman in McLean, Virginia as well as an opportunity for virtual participation. To register, click here. Please note that this meeting is for Coalition members only.
For further questions or assistance with registration, please contact Joseph Snyderwine at email@example.com.
Currently, our March calendar includes six events in total:
- March 8, 10:00 – 11:00 AM: All-Member Meeting with Erv Koehler, GSA Assistant Commissioner of the Office of General Supplies and Services. (click here to register)
- March 15, 10:00 – 11:00 AM: All-Member Briefing on FY 2023 NDAA: Healthcare Focus with Moshe Schwartz, President, Etherton and Associates (click here to register)
- March 21, 12:00 – 1:00 PM: Pharmaceutical Subcommittee Meeting with Dr. Jennifer Martin, VA PBM (click here to register)
- March 22, 10:00 – 11:00 AM: Small Business Committee Meeting, OSDBU Panel (click here to register)
- March 23, 1:30 – 3:00 PM: OASIS+ In-Person Meeting with Tiffany Hixson, GSA (click here to register)
- March 28, 10:00 – 11:00 AM: NASA SEWP Working Group Meeting with Joanne Woytek, NASA (click here to register)
House Veterans Affairs Committee Identifies IT Modernization and Community Care as Priorities in 2023
On Tuesday, the House Committee on Veterans’ Affairs set its agenda for the current session of Congress and held its first oversight hearing, where it called both Department of Veterans Affairs (VA) management and watchdogs to testify on what Ranking Member Rep. Mark Takano (D-CA) referred to as “major management challenges” at the agency.
Prior to the hearing, the committee held a brief business meeting where it adopted an authorization and oversight plan that assigns responsibilities to its five subcommittees for the ongoing 118th Congress. The plan notes that the committee will “devote particular attention to major VA information technology programs, all of which have yet to be authorized” and that it would consider each one individually, rather than authorizing them en masse.
The plan also prioritizes addressing the budgetary effect of the Honoring our Promise to Address Comprehensive Toxics (PACT) Act, stating that the committee will “continue to engage with the Budget and Appropriations Committees to assess the long-term impacts” of the act’s funding structure. Signed into law last August and intended to address the effect of open-air burn pits on veterans’ health, the PACT Act expands the number of veterans eligible for healthcare from VA by 3.5 million and moves a significant amount of spending on veterans’ healthcare from discretionary to mandatory spending. In a report published two weeks ago, the Congressional Budget Office found that if Congress does not reduce discretionary spending to compensate for the increased mandatory spending, the act will increase Federal spending by 789 billion dollars over the next decade and become responsible for nearly half of all budgetary outlays over that period.
During the subsequent hearing, the committee heard from and questioned three witnesses: Gene Dodaro, Comptroller General at the Government Accountability Office; Shereef Elnahal, Undersecretary for Health, VA; and Michael Missal, Inspector General, VA. Dodaro’s written testimony surveyed challenges in healthcare, the VA disability program, cybersecurity and privacy, and acquisition management. Speaking at the hearing, he noted that the VA’s “unwieldy” structure tended to make addressing high-priority challenges difficult.
Missal’s testimony focused on “five components of accountability” related to governance, staffing, IT modernization, quality assurance, and leadership. The Office of the Inspector General found issues related to these components across a wide range of VA offices, including the VA police force, its hospitals, and the Veterans Benefits Administration. Elnahal’s testimony outlined a three-part framework for VA to address many of its issues by “increasing access to world class health care and earned benefits,” “investing in its people,” and “transforming systems, processes, and infrastructure.”
White House Launches National Cybersecurity Strategy
On Thursday, the White House released the National Cybersecurity Strategy. Intended to provide a comprehensive approach to ensure the national digital ecosystem is safe, reliable and secure, the strategy emphasizes two fundamental shifts in how the United States allocates personnel and other resources.
First, the strategy cites the need to rebalance the burden of cybersecurity away from individuals, small businesses, and local governments to larger entities that build and service their systems. The second shift is to realign incentives towards long-term investments in cybersecurity. In the short term, the Federal Government will focus on key areas of leverage where minimal actions can produce “the greatest gains in defensibility and systemic resilience.” In the long run, the Administration envisions generational investments in critical infrastructure, securing the semiconductor supply chain, and developing the cybersecurity workforce.
Structurally, the strategy names five pillars to build and enhance collaboration:
- Defend Critical Infrastructure,
- Disrupt and Dismantle Threat Actors,
- Shape Market Forces to Drive Security and Resilience,
- Invest in a Resilient Future, and
- Forge International Partnerships to Pursue Shared Goals.
The strategy then elaborates each pillar in five strategic objectives. Under “Disrupt and Dismantle Threat Actors,” for instance, the strategy call for the “integration of federal disruption activities,” like taking down botnets and seizing illicit cryptocurrency; “enhanc[ing] public-private operational collaboration to disrupt adversaries;” “increas[ing] the speed and scale of intelligence sharing and victim notification” for both individuals and businesses, “prevent[ing] abuse of U.S.-Based Infrastructure,” and “counter[ing] cybercrime” and “defeat[ing] ransomware.”
The Office of National Cyber Director (ONCD), which has already begun to implement the strategy, will work with interagency partners to develop and publish an implementation plan. The ONCD will report annually to the President, the Assistant to the President for National Security Affairs, and Congress on the effectiveness of the strategy and what actions will need to be taken. Finally, to guide the investments necessary to implement the strategy, the ONCD will work with the Office of Management and Budget (OMB). They will align department and agency budget proposals, and the Administration will work with Congress to ensure sufficient funding for the strategy.
GSA Exercises Option Period for VETS 2
On February 24, GSA announced that it had exercised the five-year option for the VETS 2 governmentwide acquisition contract (GWAC) for 45 contract holders. Exodie Roe III, Associate Administrator for the Office of Small and Disadvantaged Business Utilization, said that the contract option will help to “continue the partnership between GSA and the small disadvantaged veteran-owned small business (SDVOSB) IT community to create opportunities and enhance offerings to Federal agencies.” The VETS 2 contract supports governmentwide efforts to increase opportunities for underserved small businesses. Some of the features of VETS 2 include:
- Contract scope designed to meet a variety of diverse agency requirements, including new and emerging technologies.
- All contract types allowed: fixed price, cost reimbursement, time & materials, and labor hour.
- Contractor reporting mechanisms enable GSA to track IT spending and also assist ordering contracting officers with price analysis.
VETS 2 has resulted in over $2.7 billion in awards in the base period, and more growth is expected during the five-year option period.
GSA Continues to Explore Potential SBIR Contract
FCW reports that GSA is “continuing its market research” for the potential Research, Innovation & Outcomes (RIO) contract vehicle and has issued a new request for information (RFI) targeting Small Business Innovation Research (SBIR) awardees. The indefinite-delivery indefinite-quantity vehicle, announced in October 2022, intends to increase access and sales for technologies developed through SBIR, a program that requires Federal agencies to create special small-business only set-asides from the R&D budgets.
GSA hopes to use RIO to avert the infamous “valley of death” where technologies developed through SBIR succeed in the program’s first two prototyping stages, but do not successfully commercialize in the third and final stage. RIO would fall under the GSA Assisted Acquisition Services program, which, in addition to RIO, is also running a pilot program that facilitates SBIR sales by connecting SBIR participants and contracting officers at other agencies.
Since the announcement of RIO, GSA has conducted a “multi-city tour” to meet with SBIR participants and begun developing a business case. The current RFI focuses on SBIR (and STTR, a similar program) documentation, requesting that SBIR/STTR awardees send:
- SBIR/STTR Phase I awards
- SBIR/STTR Phase II awards
- SBIR/STTR Phase II supplemental awards (Phase “2B” or other supplemental awards)
- STRATFI/TACFI awards
- SBIR/STTR Phase III awards
- SBIR/STTR Phase III subcontract documents
- Any Successor in Interest documentation
The notice asks that respondents send documentation by midnight on Friday, March 10 to IDIQLabs@gsa.gov, although “submissions may be provided anytime until when/if a pre-solicitation notice is issued for RIO.”
To Each Their Own: Agency Must Consider Experience of Each Partner in a Small Business Set-Aside Joint Venture
The Legal Corner provides the legal community with an opportunity to share insights and comments on legal issues of the day. The comments herein do not necessarily reflect the views of The Coalition for Government Procurement.
By Emily Theriault and David Gallacher, SheppardMullin
In a recent bid protest decision from the U.S. Government Accountability Office (“GAO”), the GAO clarified that, in evaluating the experience of a mentor-protégé joint venture for a small business set-aside procurement, when the joint venture itself does not have the required experience (normally because it’s a newly formed enterprise), the agency must evaluate each joint venture member’s experience individually.
In AttainX, Inc., B-421216, B-421216.2 (Feb. 9, 2023), the GAO sustained a protest alleging the agency’s evaluation of the 8(a) small business joint venture awardee’s experience was improper. The General Services Administration issued a task order under the Streamlined Technology Acquisition Resources for Services (“STARS”) III contract. The task order was set-aside for small businesses. According to the evaluation, both the Protester and awardee, MiamiTSPi, “stood above” the other offerors. The contracting officer conducted a comparative analysis of these two companies’ quotations, ultimately awarding the task order to MiamiTSPi, a tribally-owned 8(a) SBA-certified joint venture. Miami Technology Solutions, LLC (“Miami” or “MTS”) is an 8(a) small business and the managing member of the joint venture, and Technology Solutions, Provider, Inc. (“TSPi”) is the minority member and also a small business. The record was unclear whether MTS and TSPi are in SBA’s mentor-protégé program, but there was no dispute that MTS is the protégé member of the joint venture that received the award.
The solicitation instructed offerors to submit at least two experience examples for projects within the last five years, with a detailed narrative of how the experience relates to the task order at issue. The awardee joint venture, MiamiTSPi, submitted two experience examples:
- A contract awarded to a different joint venture, MTSPi, LLC, of which TSPi and MTS were members; and
- A contract awarded to TSPi.
The Contracting Officer assigned the MiamiTSPi joint venture a rating of “acceptable” for meeting the evaluation standards, while noting that any weaknesses were readily correctable. Still, as the protester pointed out, MTSPi, LLC – while having a similar name to awardee – was a different joint venture between MTS and TSPi than that which received the award.
The Small Business Act requires that when a joint venture “does not demonstrate sufficient capabilities or past performance” for a procurement, the agency must “consider the capabilities and past performance of each member of the joint venture as the capabilities and past performance of the joint venture.” 15 U.S.C. § 644. Relatedly, the SBA regulations state that the agency “must consider” work done “individually by each partner to the joint venture” as well as any work done by the joint venture itself. See 13 C.F.R. § 125.8(e). With that said though, the agency “may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally. The partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems and certifications necessary to perform the contract.” Id.
Here, the GAO concluded that the agency improperly evaluated MiamiTSPi’s experience, sustaining the protest. First, the agency incorrectly gave the joint venture awardee credit for the past performance of a separate – albeit similarly named – joint venture (MTSPi instead of MiamiTSPi). Second, because the joint venture offeror itself did not have any past experience, the agency was required to consider the experience of “each partner.” But, according to the GAO, the agency did not evaluate each partner – there was no evaluation of MTS’s experience, particularly relevant as the managing protégé member of the joint venture. The GAO concluded the only experience examples were for TSPi, but not MTS, “indicating that the evaluators never even considered the limited nature of the experience examples included in MiamiTSPi’s quotation.” The agency’s evaluation was deemed unreasonable notwithstanding the fact that the solicitation did not require examples from the joint venture offeror or from each of the individual members, because the SBA’s regulations take precedence in setting the requirements.
There are two curious aspects of the GAO’s decision that we would like to note:
- The GAO states that the record “shows only that the awardee submitted project examples for TSPi – by itself and as part of a different joint venture (MTSPi). The agency therefore did not evaluate a project example from the joint venture, MiamiTSPi, or from MTS, the managing protégé member of the joint venture.” But, elsewhere the GAO observes that MTSPi was another joint venture between TSPi and MTS. It seems odd that the GAO ignores MTS’s participation in the other joint venture and only credits TSPi for that experience, notwithstanding the fact that this experience was shared by the joint venture partners.
- The GAO did not discuss the regulatory requirement that the agency may not require the protégé to meet the same criteria as other offerors, nor did the GAO discuss the regulation’s statement that the joint venture “in the aggregate” must demonstrate the experience necessary to perform the contract. As a result, we may have to wait for future decisions to shed light on the extent of “consideration” that must be afforded to each member’s experience and the relationship between the protégé’s experience vis à vis the criteria, as well as the joint venture’s aggregate experience.
In practice, AttainX stands for the very formalistic proposition that when a joint venture itself does not have experience, each member of the joint venture should try to demonstrate relevant experience. Indeed, the joint venture may want to provide a narrative if the protégé lacks experience to ensure that the agency “considers,” and hopefully documents, that the experience of “each” member was considered. This consideration of each member’s experience should be sufficient, because the protégé does not have to meet the same criteria as other offerors – the regulations allow the joint venture “in the aggregate” to demonstrate the necessary experience. In other words, if the joint venture does not have experience, and only the mentor member has experience, the joint venture is not disqualified – all that is required, according to the GAO, is that the agency “considers” each member’s experience. Companies will also want to be careful when citing to experience from closely-affiliated entities, but entities that (nonetheless) are not the actual members of the joint venture offeror.
This decision may create a hurdle for mentor-protégé joint ventures going forward if the joint venture itself lacks the requisite experience. Namely, if the agency fails to document that it at least considered the protégé’s experience – or lack thereof – even if the solicitation itself does not require each member of the joint venture to submit experience as part of its proposal, then the GAO still may find the award unreasonable. Small business offerors, on the other hand, now have a useful ground on which to protest the award of a set-aside contract to mentor-protégé joint ventures where the experience criteria of the solicitation is likely to be very important.
Pharmaceutical Subcommittee with Dr. Jennifer Martin, VA PBM, March 21
On March 21, 12:00 – 1:00 PM EST, the Pharmaceutical Subcommittee will host Dr. Jennifer Martin, Deputy Chief Consultant in the VA Pharmacy Benefit Program. She will speak with the subcommittee regarding a potential Specialty Pharmacy program and the Pharmacy Benefit Program in 2023. We will then hear from our committee co-chairs regarding priorities in 2023 for the committee and offer the opportunity for attendees to raise policy issues for the Coalition’s attention.
To register for the meeting, please click here. If you have a question you would like to submit to Dr. Martin in advance of the meeting, please send it to Ian Bell at firstname.lastname@example.org by 5:00 PM on March 14.
This event is for Coalition members only. If you are a member of the Coalition and experience registration issues, please contact Ian Bell at email@example.com.
By Ken Dodds, Live Oak Bank
The following blog does not necessarily represent the views of the Coalition for Government Procurement.
More Joint Venture Developments
SBA’s joint venture (JV) rules provide that the protégé must be the managing venturer of the JV and an employee of the protégé must be the ultimate, responsible manager. SBA’s rules further provide that the managing venturer must be responsible for controlling the day-to-day management of the JV and administration of the contracts, but the consent of other members may be required for some decisions to the extent it is commercially customary. In a case involving a JV agreement which required unanimous approval to initiate a contract claim or litigation, OHA initially found that the JV was ineligible because initiating contract litigation concerns the day-to-day management of the JV. The JV filed a complaint at the Court of Federal Claims, and the case was remanded back to OHA. Based on SBA’s input, in the remand decision OHA found that requiring unanimous consent to pursue contract litigation is permissible and does not deprive the protégé of control of the day-to-day management of the JV or contract administration. SBA intends to clarify in forthcoming regulations that unanimous consent from JV partners can be required to initiate litigation or pursue specific contract opportunities.
An agency’s solicitation for an order under STARS III required offerors to provide two examples of similar experience. Similar experience was defined as the extent of the contractor’s experience as a firm in providing like or similar services. An 8(a) JV submitted two examples. The first was an example referencing the experience of the non-8(a) minority partner of the JV in a different JV comprised of the same members. The second example was a contract awarded to the non-8(a) minority partner of the JV. An unsuccessful offeror protested the award to the JV, arguing that the agency unreasonably evaluated the experience of the JV. In accordance with the Small Business Act and SBA’s regulations, if a JV does not have the required experience the agency should consider the experience of the individual members of the JV. Based on the record, the awardee submitted examples from the non-8(a) minority partner to the JV, by itself and as part of a different JV entity. The agency did not review an experience example from the JV that submitted the quote or the 8(a) protégé that was the managing partner of the JV submitting the quote. GAO sustained this ground of protest, finding the agency’s evaluation of the experience of only one member of the JV was unreasonable and violated SBA’s regulations.
Do you have a topic you wish to be covered or a question on how Live Oak Bank can support your business? Email me at firstname.lastname@example.org.
 13 CFR 125.8(b)(2)(ii).
 13 CFR 125.8(b)(2)(ii)(A).
 Strategic Alliance Solutions LLC, SBA No. VET-277 (September 22, 2022).
 Strategic Alliance Solutions LLC v. United States, No. 22-1562C, 2022 WL 17097233.
 Strategic Alliance Solutions LLC, SBA No. VET-278 (January 12, 2023).
 15 USC 644(q)(1)(C); 13 CFR 124.513(f), 125.8(e).
 AttainX, Inc., B-421216; B-421216.2, Jan. 23, 2023.
GSA Releases RFI for Federal Procurement Data System Next-Generation
GSA has released an RFI to gather information on commercial solutions for monitoring the Federal Procurement Data System Next-Generation (FPDS-NG), the main system for recording and reporting Federal contract actions. The new system will monitor, report and validate FPDS-NG data while automatically staying in compliance with the Federal Acquisition Regulation (FAR). For Federal users, it will provide customized dashboards and reports for up to 3,000 individual accounts. Users will be able to filter dashboards and reports based on GSA’s organizational structure and follow acquisition performance by agency IDs and contracting office groupings. Additionally, the vendor must check and validate data for errors and inconsistencies and have a team for verification and validation of the FPDS-NG transaction review. Responses to the RFI must be submitted by March 16 at 5:00 PM EST.
Off the Shelf: Key Trends and Provisions in the 2023 NDAA
This week on Off the Shelf, Tim Cook, Executive Director of the Center for Procurement Advocacy, and Tom Sisti, Executive Vice President and General Counsel of The Coalition for Government Procurement, provide their analysis of the key trends and takeaways from the FY23 National Defense Authorization Act (NDAA).
Cook and Sisti discuss the key cyber and supply chain provisions of the NDAA and how they will impact government and industry. Cook also reviews the Congressional calendar and the timing of the key legislative actions through 2023, while Sisti gives his thoughts on the key policy issues that will shape the 2024 NDAA and beyond.
To listen to the full episode, click here, or search “Off the Shelf” on all major podcasting platforms.
New Requirement to Register Contract in GSA Vendor Support Center
GSA has announced that, as of February 16, Vendor Support Center users must now be Authorized Negotiators to register a contract. Previously, users could register contracts using only a contract number and unique entity identifier (UEI). The change, already effective, does not apply to VA Contracts and was made to ensure privacy and security. Contractors who need to be upgraded to an Authorized Negotiator role can submit an administrative modification via e-Mod and contractors who need assistance should contact email@example.com or call 1 (866) 472-9114.
CISA Seeks Support for Insight Branch
The Cybersecurity and Infrastructure Security Agency (CISA) released an RFI to find sources capable of providing cybersecurity risk management services to support the Cybersecurity Division, Vulnerability Management (VM) Insights Branch. The VM subdivision’s mission is to reduce cybersecurity risks by enabling stakeholders to understand and manage vulnerabilities, and the insight branch works more specifically on reducing vulnerability risk and attack surface exposure through continuous data analysis. CISA intends to hold a virtual industry day for this opportunity. Responses are due by 12:00 PM EST on March 15.
Government Seeks to Continue “Place of Manufacture”
On Tuesday, the FAR Council submitted an extension request to OMB in order to continue using Form 9000-0161 to collect information from contractors on products made outside the United States. Under FAR provision 52.225-18, Place of Manufacture, sellers of manufactured end products must report “whether the place of manufacture of the end products it expects to provide is predominantly manufactured in the United States or outside the United States” through the form. Contracting officers enter this data into the Federal Procurement Data System, and it is then used to track compliance with the Buy American statute and trade agreements. The public may submit comments on the extension request through March 30, 2023.
Department of Defense Finalizes DFARS Rules on Contractors Who Employ Workers in China, Prompt Payment and Quick-Closeout
On Wednesday, March 1, the Department of Defense (DoD) finalized three rules in the Defense Federal Acquisition Regulation Supplement (DFARS):
- Employment Transparency Regarding Individuals Who Perform Work in the People’s Republic of China (DFARS Case 2022-D010): Effective March 1, this rule finalizes without change an interim rule put in place on August 25, 2022 and requires that offerors “disclose their use of workforce and facilities in the People’s Republic of China, if they employ one or more individuals who will perform work in the People’s Republic of China, unless a national security waiver has been granted.” Additionally, “a recurring disclosure is also required for fiscal years 2023 and 2024, for contractors that are covered entities and are a party to one or more covered contracts in each fiscal year, to disclose if the contractor employs one or more individuals who perform work in the People’s Republic of China on any such contract.”
- Prompt Payment of Contractors (DFARS Case 2021-D008): This rule, effective March 16, implements a portion of the National Defense Authorization Act for Fiscal Year 2021 which “strengthened the requirement that DoD establish a goal to pay small business contractors within 15 days of receipt of an invoice.” The rule strikes portions of the DFARS that inhibit this goal and adopts other conforming changes.
- Quick-Closeout Procedures Threshold (DFARS Case 2021-D001): Effective March 1, this rule is identical to a proposed version published on October 28, 2022 and implements a GAO recommendation that will simplify closing completed contracts.