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Friday Flash 04/14/23

What to Expect at the Spring Training Conference!
As the weather heats up and the beginning of May quickly approaches, the Coalition’s excitement for the 2023 Spring Training Conference continues to grow! The Spring Training Conference – Procurement Watchwords for 2023, will take place on May 2-3 at the Fairview Park Marriott in Falls Church, Virginia. The two-day event focuses on four procurement “watchword” themes and how they will continue to serve as driving forces on the procurement system in 2023 and beyond. These watchwords include Market Continuity, Cybersecurity, Supply Chain Security, and Sustainability.

As always, the goal of the Spring Training Conference is to deliver the latest information on what is happening in government procurement. As we enter the second quarter of the calendar year, there have been a number of important developments that have had an impact on both the Federal Government and industry partners. Below is a snapshot of just some of these key policy and program updates, and why you can expect to learn more about them at the conference!

OMB Memo to Create More Diverse and Resilient Federal Marketplace
On February 17, the Office of Management and Budget (OMB) released a memo on Creating a More Diverse and Resilient Federal Marketplace through Increased Participation of New and Recent Entrants, with an emphasis on small business entrants. The memo establishes common definitions for “new entrant” and “recent entrant” into the Federal marketplace, and provides agencies with guidance on how to use newly developed tools to track progress and identify organizations. At the Spring Training Conference, we are thrilled to have invited Lesley Field, OMB Deputy Administrator for Federal Procurement Policy, to deliver the opening Keynote Address. During the Keynote, Ms. Field will discuss her priorities and initiatives as Deputy Administrator for Federal Procurement Policy, especially as they relate to this recent OMB memo.

VA Posts Q&A Regarding Supply Chain Modernization
On March 27, the Department of Veterans Affairs (VA) posted answers to questions from industry regarding its Supply Chain Modernization acquisition, which is currently in the pre-solicitation phase. The Q&A is intended to help potential offerors with preparing proposals for the VA’s upcoming Supply Chain Modernization RFP. During the conference, we are fortunate to have multiple sessions with VA leadership that will touch on not only VA Enterprise Supply Chain Modernization, but also other initiatives, such as Pathfinder and category management. To kick off the healthcare day, Michael Parrish, Chief Acquisition Officer and Principal Executive Director for the Office of Acquisition, Logistics, and Construction (OALC), will give the Keynote Address. Following Mr. Parrish’s remarks will be a panel of VA OALC leaders, including Dr. Angela Billups, OALC Executive Director and Senior Procurement Executive, and Phil Christy, OALC Deputy Executive Director.

White House Releases National Cybersecurity Strategy
On March 2, the White House released its National Cybersecurity Strategy. The strategy, which builds upon previous actions from the Biden Administration, aims to provide a comprehensive approach to ensure that the national digital ecosystem is safe, reliable, and secure. The strategy highlights two fundamental shifts, including moving the burden of cybersecurity away from individuals, small businesses, and local governments, as well as realigning incentives towards long-term investments in cybersecurity. On both days of the conference, there will be panels addressing recent cybersecurity policies and programs and what contractors can expect. On May 2, the Cybersecurity Panel includes Kevin Funk, GSA Supply Chain Risk Management Expert, Larry Hale, GSA Deputy Assistant Commissioner for IT Category Management, and Townsend Bourne, Partner at Sheppard Mullin. On May 3, the panel of Moshe Schwartz, President of Etherton and Associates, James Kim, Partner at Arnold & Porter, and Stephen Ruscus, Partner at Baker & Hostetler, will touch on cybersecurity as it relates to healthcare contracting specifically.

GSA Provides Updates on OASIS+ and Alliant 3
Over the first quarter of 2023, GSA provided major updates involving two of its upcoming procurement vehicles, OASIS+ and Alliant 3. On March 30, GSA posted a notice that the agency intends to issue the final solicitation for OASIS+ within the next 30 days. Prior to this announcement, the Coalition issued comments in response to the second draft RFP and held a member meeting with Tiffany Hixson, FAS Assistant Commissioner of the Office of Professional Services and Human Capital Categories. We are pleased to announce that Tiffany Hixson will be returning at the Spring Conference during the FAS Executive Panel. In addition, the second set of Market Continuity Panels on May 2 includes a GSA Professional Services Category session with Adam Soderholm, Acting Director of Program Operations, Keith Jeffries, Director of the Office of Contracting Operations, and Ana Eckles, Director of Human Capital Solutions, R2.

At the beginning of March, GSA also published a notice that the Alliant 3 RFP will be released no earlier than the first quarter of fiscal year 2024. During the first set of Market Continuity Panels on May 2, we will hold the GSA IT Category session, which includes guest speakers Larry Hale, Cheryl Thornton-Cameron, Executive Director (SES) Office of Acquisition/SCRIM Operations, Joel Lundy, Director of IT Software Category, and Patricia Waddell, Supervisory Management and Program Analyst. During this session, the panelists will address GSA’s GWACs, including Alliant 3, along with the cloud marketplace and the Multiple Award Schedule program. 

VA Releases MSPV Gen-Z 1 Distribution and Supply Management RFP
The VA’s Medical/Surgical Prime Vendor (MSPV) program supporting the healthcare supply needs of VA healthcare facilities is extending to the next generation through its MSPV Gen-Z V1 Distribution and Supply Management contract. The MSPV Gen-Z V1 Distribution and Supply Management RFP was released on January 3. Craig Hilliard, Division Chief, MSPV Supplies, Katie Hulse, Director, Acquisition Services 3, Strategic Acquisition Center (SAC), and Mike Easley, Deputy Program Manager, Medical Supply Program Office Commodities, will be presenting at the conference on May 3 during the MSPV Market Continuity Panel.

CISA Stands Up Cyber Supply Chain Risk Management Office
In January, it was announced that the Cybersecurity and Infrastructure Security Agency (CISA) established a new Supply Chain Risk Management (SCR-M) project management office. The office is tasked with developing new training courses for the Federal Government, state and local governments, and industry to help them implement recently issued CISA policies and guidance related to supply chain security risk. The office is headed by Shon Lyublanovits, former GSA Senior Advisor for Cybersecurity. We are excited to share that Shon Lyublanovits will be speaking at the Spring Training Conference during the Supply Chain Security Panel on May 2. The panel gives attendees the opportunity to hear Lyublanovits’ priorities and initiatives for the new office, as well as its impact on the Federal contracting community. She will be joined on the panel by John Tenaglia, Principal Director of Defense Pricing and Contracting (DPC), Cameron Reid, Director at Baker Tilly, and Susan Cassidy, Partner at Covington & Burling.

Proposed Rule on Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk
On February 13, the Coalition submitted member comments on the Federal Government’s proposed rule regarding greenhouse gas emissions disclosure and climate-related financial risk. The proposed rule, issued by the FAR Council in November 2022, would add new climate-related reporting requirements for contractors with over $7.5 million in annual Federal sales. On both days of the conference, attendees will have the opportunity to hear discussions from government and industry experts on sustainability-related policies, guidance, and programs, such as the proposed rule.

The Sustainability Panel on May 2 features Holly Elwood, Senior Advisor of the Environmentally Preferable Purchasing Program, Environmental Protection Agency (EPA), and Troy Cribb, Director of Public Policy at the Partnership for Public Service and Co-Chair for GSA’s Acquisition Policy Federal Advisory Committee. On the healthcare day, Crowell & Moring Partners Paul Freeman and Lorraine Campos will participate in a special Lunch Panel focusing on how sustainability requirements, such as the greenhouse gas emissions proposed rule, will impact healthcare contractors.

The Coalition is excited to host this dynamic Spring Training Conference with panels and guest speakers that will dive into these topics and much more! We encourage you to check out the full draft agenda, which provides more information on the diverse selection of sessions available throughout both days. To register for the conference, click here.

As always, we would like to thank our current sponsors of the Spring Training Conference for their continued support. Sponsors include:
Platinum Sponsors: AvKARE, Covington, and McKesson
Gold Sponsors: Amazon Web Services, Dell, Four Points Technology, and Raytheon
Silver Sponsors: GDIT, The Gormley Group, and Sheppard Mullin
Coffee & Networking Sponsor: SAIC

Amici Curiae Submit Brief Urging Supreme Court to Adopt “Objectively Reasonable” FCA Knowledge Standard
The Coalition for Government Procurement and the National Defense Industrial Association filed an amicus brief in the consolidated Supreme Court cases United States ex rel. Schutte v. SuperValu, Inc. and United States ex rel. Proctor v. Safeway, Inc. The brief urges the Court to hold, consistent with the decisions of multiple federal courts of appeals, that a defendant cannot be liable under the False Claims Act (“FCA”) for “knowingly” submitting a “false” claim if (1) it acted in accordance with an objectively reasonable reading of an ambiguous statute, regulation, or contract provision and (2) there was no authoritative guidance warning it away from that interpretation. The Amici are represented by Covington & Burling LLP.

In SuperValu and Safeway, the Court is asked to resolve questions over the role that subjective intent plays in evaluating whether a defendant satisfies the FCA’s “knowledge” requirement.  Petitioners argue that a contractor can be liable under the FCA for submitting a claim that is premised on an objectively reasonable interpretation of an ambiguous legal provision if the contractor recognized that the provision could be interpreted a different way.  However, as the amicus brief explains, such a claim cannot be false for alleged noncompliance with the ambiguous legal provision that has not otherwise been clarified by authoritative guidance.  Nor can such a contractor knowingly submit a false claim just because it was aware that the legal obligation may be interpreted differently.

The amicus brief explains why Petitioners’ lax scienter requirement would fail to give contractors fair notice.  An ambiguous legal requirement by definition fails to apprise regulated parties about what the law permits and prohibits.  It is a fundamental tenet of our legal system that defendants should not be punished for acting in accordance with what was at the time a reasonable interpretation of an ambiguous requirement, simply because a court subsequently adopts a different interpretation of that requirement.

The amicus brief also details the strain that a subjective scienter requirement places on government contractors, the defense industry, and national security.  As the brief explains, contractors grapple with an extraordinary number of complex and often intentionally ambiguous regulations, from Department of Defense (“DoD”) cybersecurity regulations that require contractors to provide “adequate security” yet do not provide any meaningful definition of the term, to the Federal Acquisition Regulation’s open-ended multi-factor definition of cost “reasonableness.”  These uncertainties force contractors to make difficult interpretive decisions when bidding for, performing, and billing under contracts that are often not subject to clear resolution.

The brief argues that subjecting contractors who operate in such an uncertain legal landscape to treble damages and other essentially punitive remedies for acting in accordance with objectively reasonable legal interpretations is not only inconsistent with the FCA and the Court’s prior decision in Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), but also could threaten to chill contractors’ ability and willingness to support the government’s critical contracts and goals.  Facing the threat of incurring enormous liability for making reasonable choices in the face of unclear legal requirements, some companies (especially non-traditional offerors with limited contracting experience) could decline to bid on contracts, while others may choose to exit the government-contracting space.  Such diminished participation could thwart the efforts of the DoD and other agencies to increase their supplier base, impede their efforts to promote vigorous competition, and threaten their ability to address national-security needs, especially in a timely manner.

Petitioners argue that their subjective test will not burden companies that do business with the government because those companies can always ask agencies to clarify the meaning of ambiguous laws, statutes, and regulations.  As the amicus brief further explains, however, Petitioner’s argument is impractical.  Agencies that have deliberately promulgated vague regulations are unlikely to offer further guidance about what those regulations mean.  Agency staff are often reluctant to advise contractors on how to navigate ambiguous legal requirements, and will often lack the resources to respond to requests about how to interpret countless uncertain or contradictory laws.  Even when agencies do respond to requests for clarification, those responses will often take months or years, making it impossible for contractors to obtain clarification before submitting claims.

However it turns out, the Court’s decision in SuperValu and Safeway may prove to be a watershed decision, perhaps as important as the Court’s 2016 Escobar decision.  Argument is scheduled for April 18, 2023, with a decision expected by the end of the Court’s term.

New Regulation Introduces SBIR and STTR Standards
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration have proposed an amendment to the Federal Acquisition Regulation to implement data rights and competition requirements to comply with the Small Business Innovation Research (SBIR) and Small Business Technology Transformation Programs (STTR) Policy Directives as implemented in 84 FR 12794. The amendment revised the definition of “computer program” and “computer software” to standardize the terminology across agencies. The amendment also requires SBIR/STTR contracts to be retained for 20 years after being awarded instead of six years after final payment. The rule also clarifies that, based on their authority under the Small Business Act, contracting officers may award sole-source actions under Phase III of the SBIR/STTR programs without additional justification. Finally, the amendment updates the definitions of “data” and “unlimited rights” to reflect SBIR/STTR definitions.

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White House Modernizes Regulatory Review and Publishes Draft Update to Key Guidance
Federal News Network reports that the White House has kicked off another round of regulatory reform. On April 6, President Biden signed an executive order raising the threshold requiring formal cost-benefit analysis of a regulation from $100 million to $200 million in annual economic effects. Simultaneously, the Office of Management and Budget (OMB) released draft versions of updated A-4 and A-94 Circulars that guide Federal cost-benefit analysis.

The new threshold immediately applies to all regulatory actions, including those in progress. The order, which mirrors a memo the president issued on his first day in office, directs regulators to “promote equitable and meaningful participation by a range of interested or affected parties, including underserved communities,” provides that regulatory analyses should recognize distributive impacts, and requires OMB to issue an updated version of the A-4 Circular, not revised since 2003, by April 6, 2024.

The draft A-4 Circular and a memo on the order to agencies from Richard Revesz, head of the Office of Information and Regulatory Affairs at OMB, offered further specifics. The new circular changes the discount rates agencies use to estimate the declining value of regulatory costs and benefits over time, lowering the short-term annual discount from 3 percent to 1.7 percent and replacing the 7 percent long-term rate with a new methodology. Distributive impacts—which describe how the effects of regulations are divided among different populations—receive their own section in the circular for the first time, and the guidance encourages agencies to weigh distributive and aggregate impacts when analyzing regulations, rather than simply aiming for lower aggregate impact. The OMB made similar revisions to the A-94 Circular, the guide to cost-benefit analysis for Federal grants and investments. Both revised documents will be open for public comment through June 6.

CISA Publishes Updated Guidance for Zero Trust Maturity Model
FCW reports that The Cybersecurity and Infrastructure Security Agency (CISA) published updated guidance for its Zero Trust Maturity Model. The guidance was released following a public response period with 378 public comments and incorporates Office of Management and Budget Memorandum 22-09, Federal Strategy for Moving the U.S. Government Toward Zero Trust Cybersecurity Principles. The model for Zero Trust architecture is built on five pillars of trust: identity, device, network, applications, and data; and it emphasizes continuous validation, enterprise-wide identity integration, and tailored as-needed automated access for specific systems. Some changes in the updated guidance include the addition of the “initial” maturity stage, as well as expanded and added functions for the pillars in the model to provide clarity.

National Cybersecurity Strategy Aims to Boost FedRAMP Efficiency
On April 6, Acting National Cyber Director Kemba Walden discussed GSA’s FedRAMP program at an event hosted by the Atlantic Counsel. During the discussion, Walden noted that, as implementation planning for the National Cybersecurity Strategy begins, making the FedRAMP process more efficient for cloud service providers is a focus of the Office of the National Cyber Director (ONCD). GSA’s FedRAMP program provides a standardized, governmentwide approach to “security assessment, authorization, and continuous monitoring for cloud products and services used by Federal Government agencies.” Last year, Congress codified the program into law. When responding to a question on making the FedRAMP process more efficient and improving the public-private partnership, Walden stated that the National Cybersecurity Strategy looks to “harmonize regulatory burden,” and that, regarding FedRAMP, she is working with GSA Administrator Robin Carnahan to address challenges, such as authorizations to operate.

Off the Shelf: Procurement Trends in Small Business Contracting
This week on Off the Shelf, Tiffany Hixson, Federal Acquisition Service Assistant Commissioner for Professional Services and the Human Capital Category joins Coalition President Roger Waldron to discuss key professional services procurement trends for small businesses. Hixson will also share insights on the upcoming follow-on contract for OASIS and OASOS+ and update listeners on HCaTS and the Federal Supply Schedule.

To listen to the full episode, click here, or search “Off the Shelf” on all major podcasting platforms.

Legal Corner:
National Security Update – Departments of Commerce and Treasury Release Notice of Proposed Rulemaking Regarding CHIPS “Guardrails”

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 Jonathan Wakely, Michael Wagner, David Fagan, Brian Kim & Jamin Koo

On March 21, 2023, the Department of Commerce (“Commerce”) published a Notice of Proposed Rulemaking (the “Commerce Proposed Rule”) to implement certain provisions of the CHIPS and Science Act of 2022 (“CHIPS Act”) that place restrictions on certain activities of businesses receiving federal funding pursuant to the CHIPS Act (“Commerce Guardrails”). On the same day, the Department of the Treasury (“Treasury”) also published a Notice of Proposed Rulemaking (together with the Commerce Proposed Rule, the “Proposed Rules”) to implement the Advanced Manufacturing Investment Credit (“ITC”), including its own restrictions on certain activities that, in broad strokes, parallel the Commerce Guardrails (together with Commerce Guardrails, “CHIPS Guardrails”) (Covington alert).

The Proposed Rules are relevant to companies that are considering applying for Section 9902 funding under the CHIPS Act or planning to take advantage of the ITC.  They are also potentially relevant to companies that do business with such parties.  As described below, CHIPS Guardrails will impose meaningful constraints on the types of activities or investments into which affected parties can enter.  The Proposed Rules also may contain hints with respect to the general direction of U.S. government policy, articulating concepts and definitions that could be applied in other regulatory regimes, including potential regulation of outbound investments.

Commerce and Treasury have requested public comments on the Proposed Rules by May 22, 2023. Further, Commerce has specifically requested comments on the “extent and nature of . . . pre-existing arrangements” relating to joint research or technology licensing, presumably to evaluate the issue of retroactive application for activities that predate CHIPS Guardrails but will be ongoing after its enactment.

We offer the following high-level comments:

  • The “affiliate” definition would expand the universe of entities subject to CHIPS Guardrails well beyond the funding or ITC recipient (“Recipient”).  The proposed definition would sweep in remote entities within the Recipient’s corporate family that may be several degrees of separation from the Recipient, as long as they are under common control.  Thus, if a U.S. subsidiary of a foreign corporation accepts CHIPS Act funds or takes advantage of the ITC, it would bring the foreign parent corporation and all of its controlled subsidiaries globally within the scope of the CHIPS Guardrails restrictions.  This definition of “affiliate” may be subject to challenge under the Administrative Procedure Act because the statute provides for a higher threshold of an 80% ownership to be considered an affiliate, but the Commerce Proposed Rule lowered this threshold to 50%.[1]
  • Restrictions apply to transactions with “foreign entities of concern” located anywhere in the world.  The Proposed Rules restrict Recipients from engaging in certain transactions (i.e., transactions involving joint research or technology licensing relating to a technology or product that raises national security concerns, as determined by the Secretary) with “foreign entities of concern.”  This term is defined to include a broad range of individuals and entities, including Chinese nationals located in China, companies organized under the laws of China (including for example Chinese subsidiaries of U.S. companies), and non-Chinese companies 25% or more of whose voting interests are directly or indirectly owned by the Chinese government.  “Foreign entity of concern” even includes the Recipient’s subsidiaries organized under the laws of China and its Chinese employees located in China.
  • However, the Proposed Rules still leave meaningful room for Recipients to engage in semiconductor-related activities and expansion of manufacturing in foreign countries of concern.  First, “material expansion in . . . manufacturing capacity” is defined purely in quantitative terms, measured in wafer starts per month for semiconductor fabrication facilities.  Consistent with this definition, Commerce’s commentary accompanying the Commerce Proposed Rule affirmatively states that the rule “would also allow recipients to upgrade technology at existing foreign facilities (in compliance with export controls) if overall production capacity is not increased.”  Second, the Proposed Rules bifurcate the restriction on material expansion for legacy semiconductors and non-legacy semiconductors and provide greater flexibility to expand capacity for legacy semiconductors.  Whereas the Proposed Rules permit only up to a 5% increase in output for leading edge and current generation technologies, they allow up to a 10% increase in output of legacy semiconductors manufactured at either an existing facility or a new facility that predominately serves the market of a foreign country of concern.
  • Key Open Questions:  Key issues that may require clarification through the comments process include:
    • Scope of “Foreign Entities of Concern”:  The statutory term “foreign entities of concern” includes any foreign entity that is “[o]wned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country that is a covered nation (as defined in 10 U.S.C. 4872(d)).”  The Proposed Rules arguably expanded the scope of this term beyond what the statute contemplates.  First, the agencies interpret the term “entity” to include a natural person.  Second, the Proposed Rules’ interpretation of the above phrase to include all entities organized under the laws of China is quite broad.  This phrase “subject to the jurisdiction or direction of a government” could be interpreted more narrowly as requiring some affirmative government influence, as discussed here.
    • Affiliated vs. Unaffiliated Foreign Entities of Concern:  The Proposed Rules do not differentiate between affiliated foreign entities of concern (e.g., a Recipient’s own subsidiaries in China) and unaffiliated foreign entities of concern.  As a result, a Recipient’s own, wholly-owned subsidiaries in China would be treated in the same manner as a Chinese state-owned entity for purposes of the Guardrails restrictions.
    • Scope of Technology Clawback:  The Proposed Rules include a technology clawback provision that restricts Recipients from knowinglyengaging in joint research or technology licensing efforts with a foreign entity of concern that relates to a “technology or product that raises national security concerns.”[2]  As currently drafted, “technology licensing” is defined broadly to include patent licensing and sharing of “know-how,” which may include such intellectual property provided in connection with products being sold.  Further, the Proposed Rules suggest that even technology or products for which a party has obtained an export license under the U.S. Export Administration Regulations may be subject to these restrictions, if the technology “raises national security concerns” as defined in the Proposed Rules.  In other words, these rules do not contemplate a carve out for ancillary intellectual property or existing export licenses.

Covington has been involved in advising on and shaping the legislation for clients since its original draft was introduced in April 2021, and we stand ready to advise on its contents and specific opportunities for individual clients.  If you have any questions concerning the material discussed in this post, please contact the members of our CFIUS, Public Policy, Government Contracts, and Tax practices.

[1]  For the ITC, there was no statutory prohibition against activities of an affiliate, but Treasury adopted the affiliate prohibition from the Commerce Proposed Rule.

[2]  Unlike the Commerce Proposed Rule, Treasury’s proposal for the ITC further requires that this joint research or technology licensing materially expand the semiconductor manufacturing capacity of the Recipient or its affiliates.

Healthcare Corner:
April 19 Meeting with the VA NAC in Chicago

The Coalition will hold a meeting with the VA National Acquisition Center (NAC) next week on Wednesday, April 19 hosted by Mayer Brown at their office in downtown Chicago. The program will cover the latest developments for VA FSS and NCS contracts and will include time to network with the leadership of these contracting programs.
We are pleased to announce the following agenda for the meeting:

Wednesday, April 19
(All times are Central Time. The meeting will be in-person only for members.)

● 11:30am – 1:00pm: Registration and Lunch
● 1:00pm – 4:30pm: VA NAC Leadership Remarks, VA FSS Chiefs Panel, and VA NCS Chiefs Panel
● 4:30pm: Conclusion

The annual VA NAC meeting is one of the most popular events for our healthcare members. VA speakers will include:
● Christopher Parker, Associate Executive Director, Strategic Acquisition Center & Acting Associate Executive Director, National Acquisition Center
● VA Federal Supply Schedule (FSS) Director, Dan Shearer and FSS Chiefs
● VA National Contract Service (NCS) Director, Fran DeRosa and NCS Chiefs

For the detailed agenda, click here.

For questions or assistance with registration, please contact Erin Cartwright at

A View From Main Street
By Ken Dodds, Live Oak Bank
The following blog does not necessarily represent the views of The Coalition for Government Procurement.

Bidding Mistakes to Avoid
Importance of Joint Venture Addendums
SBA’s rules provide that a joint venture (JV) may receive an unlimited number of contracts within a two-year period following the first contract award.[1] A JV agreement must be amended to address issues specific to individual contracts, such as the name of the project manager for the contract and each partners’ responsibility for equipment, facilities, resources, labor, contract negotiation and performance.[2] A JV’s size is determined at the time of final proposal revision.[3] The proposed awardee’s JV agreement was created in 2018.

The proposed awardee submitted its final revised business proposal including the JV agreement to the procuring agency on September 10, 2021. The contracting officer (CO) issued pre-award notification of the proposed awardee on September 15, 2021. On September 17, 2021, an unsuccessful offeror filed a size protest. On September 23, 2021, the CO requested a revised technical proposal to incorporate into the contract. On September 24, 2021, the proposed awardee submitted a revised technical proposal, but also submitted a revised business proposal and an addendum to the JV agreement. The initial JV agreement was clearly deficient because it was not specific to this contract. OHA found that the addendum was invalid because it was not signed by the parties as required by the JV agreement. Further, OHA found the correct date to determine size was September 10, 2021, when the proposed awardee submitted its business proposal including the 2018 JV agreement, prior to creation of the addendum. Negotiations were over and the proposed awardee had been selected for award prior to the date the CO requested the revised technical proposal and prior to creation and submission of the JV addendum. Finally, the JV addendum did not sufficiently address the responsibilities of the parties with respect to the contract. Even for indefinite contracts, a general description of the responsibilities of the parties is still required.[4]

Precision is Critical
The VA issued a solicitation for a multiple award contract as an SDVO SBC set-aside using a three-tiered evaluation method. The VA would evaluate offers in the first tier and would only review offers in the second or third tier if a suitable number of awards could not be made in the preceding tier. The first tier was for SDVO offerors that joint ventured or subcontracted with SDVO SBCs or VO SBCs. To qualify as an SDVO SBC or VO SBC, firms had to be certified by the VA and be in the VA’s Vetbiz database at the time of offer. Firms also had to be in SAM and qualify as small at time of offer and award. The VA could not verify that the protester’s subcontractor was an SDVO or VO SBC, and therefore exclude the offer from the first tier. The VA ultimately made a sufficient number of awards based on first tier offers. The protester submitted an offer listing Alaris Advisors, LLC as its SDVO subcontractor. The VA could not find Alaris Advisors, LLC in SAM or the Vetbiz database, and the submitted DUNS number was also incorrect. During the protest the protester submitted a letter of SDVO certification for Alaris Advisers, LLC. GAO denied the protest. Offerors bear the burden of submitting well-written proposals. The protester submitted a proposal with the wrong name and DUNS number for its subcontractor. In addition, the subcontractor was not listed in SAM at the time of award. Thus, the VA reasonably excluded the protester from consideration.[5]

Do you have a topic you wish to have covered or a question on how Live Oak Bank can support your business? Email me at

[1] 13 CFR 121.103(h).

[2] 13 CFR 125.8(b)(2).

[3] 13 CFR 121.404(d).

[4] Focus Revision Partners, SBA No. SIZ-6188 (January 31, 2023).

[5] Kizano Corporation, B-420858.4, Mar. 8, 2023.

GAO Releases Report on DoD Software Modernization Strategy
The Government Accountability Office released a report on the Department of Defense’s (DoD) management of software development and acquisitions. Previously, the Defense Science Board (DSB) and Defense Innovation Board (DIB) submitted recommendations for streamlining software development and acquisitions regulations as required by the FY 2018 National Defense Authorization Act. GAO followed up on these recommendations, and of the 17 examined recommendations, four were fully or substantially implemented while the rest were partially implemented. These recommendations cover a variety of areas, including software evaluation, workforce development, risk mitigation for new programs, software deployment, and acquisition training. DoD officials noted that, as the DSB and DIB are advisory boards, they are not required to implement all recommendations and will not recommend actions the agency finds impractical. For example, DoD does not plan on broadly transitioning programs to continuous iterative software development as such action is unrealistic for a large portion of contracts, and programs within DoD will make assessments of individual contracts.

The GAO has made seven recommendations to DOD:
1. The Secretary of Defense should ensure that performance measures for software modernization incorporate GAO’s standards.

2. The Secretary of Defense should direct Undersecretary for Defense (USD) for Acquisition & Sustainment, the USD for Research & Engineering, and the Chief Information Officer (CIO)to identify the resources needed to lead DoD’s software acquisition and development reform efforts.

3. The Secretary of Defense should fully identify responsibilities and roles for the leaders responsible for carrying out software acquisition and development reform.

4. The Secretary of Defense should ensure that the Undersecretary for Defense (USD) for Acquisition & Sustainment, the USD for Research & Engineering, and the Chief Information Officer (CIO)finalize an implementation plan with key milestones and deliverables to track progress on implementing the Software Modernization Strategy.

5. The Secretary of Defense should ensure that the USD for Research & Engineering finalizes an implementation plan with key milestones and deliverables to track progress on implementing the Software Science and Technology Strategy.

6. The Secretary of Defense should direct the Undersecretary for Defense (USD) for Acquisition & Sustainment, the USD for Research & Engineering, and the Chief Information Officer (CIO)to establish data-collecting processes in order to effectively measure progress against outcome-oriented goals regarding software modernization efforts.

7. The Secretary of Defense should ensure that, once the software workforce is identified, the USDs for Acquisition & Sustainment and Personnel and Readiness develop a department-wide strategic workforce plan that identifies strategies tailored to address gaps in the critical skills and competencies needed to achieve software modernization goals.

The DoD concurred with the first, third, fourth, and fifth recommendations. The GAO, however, noted that the steps outlined in the DoD’s written comments are unlikely to respond adequately to the third recommendation, as the stated approach of identifying an office of primary responsibility in its strategy will not fully identify the roles and responsibilities of the leaders carrying out software acquisition and development reform efforts. DoD partially concurred with the second recommendation, but noted that, instead of a centralized authority, all key software modernization activity will be directed by a representative from an Office of Primary Responsibility. Regarding the sixth and seventh recommendations, the DOD has alternative plans to fulfill the requirements, which the GAO noted would, if fully implemented, address their recommendations.

GSA Announces Next Advisory Committee Meeting
The GSA Acquisition Policy Advisory Committee (GAP FAC) will host its next public meeting on May 4, 2023 from 9:30 AM–12:30 PM (registration here) in person at GSA Headquarters with a simultaneous webcast. The committee advises GSA’s administrator on how the agency “can use its acquisition tools and authorities to target the highest priority Federal acquisition challenges” and is presently focused on producing recommendations related to sustainability and climate. For registration, click here. Note that GAP FAC subcommittee meetings previously scheduled for May 9–11 are canceled.

15th Annual LEAPS Technology Forum, May 10
The Coalition is pleased to be a sponsor of AFCEA Bethesda’s 15th annual Law Enforcement and Public Safety (LEAPS) Technology Forum held on May 10 at the National Press Club in Washington, D.C. AFCEA Bethesda will provide an opportunity for government and industry to share information about lessons learned in resolving current challenges law enforcement face in an increasingly digital world. Panel discussions and roundtables provide a forum for engaging and interactive dialog. Government participants will learn from their colleagues and industry partners. Industry participants will discover opportunities where they can introduce innovations to their government clients. The LEAPS Technology Forum will look at how federal, state, and local agencies are working with industry partners to implement effective solutions with an emphasis on 5G Communications, AI/ML, Cybersecurity & Zero Trust, and Cloud Migration.

To register for the event, click here.

Please Welcome New Premier Members

Flash Trivia
Last week’s answer was New York City. Andrew Keen of CGI Federal, Jeffrey Manthos of GSA, Jim Davis of NIB, John Campbell of Academy Medical, and Tom Caltabiano of Draeger Inc., provided the correct answer. Now for this week’s question:

In humans, the buccinator muscle makes up the anterior part of this anatomical structure. Italian charcoal makers or carbonari took them in cured form into the woods when they went on long sojourns to cut and burn wood. They combined them with other long-lasting foods like dried pasta, eggs, and hard cheeses, inventing their eponymous dish—spaghetti carbonara. An English adjective meaning impudent derives from it, as do several other expressions related to the revelrous activity. In the Semon on the Mount, Jesus encouraged his followers to turn theirs toward evildoers. Name this part of the face, sometimes known in animals as the jowl.

Please send your answers to

Upcoming Events:


Date Event Location
April 19,
11:30 AM – 4:30 PM CDT
VA NAC Meeting Mayer Brown
71 S Wacker Dr
Chicago, IL 60606
Please click
here to register.
May 2 – 3 Spring Training Conference: Procurement Watchwords for Fiscal Year 2023 Fairview Park Marriott
Falls Church, Virginia
Please click here to register.
November 15 – 16 Save The Date: Fall Training Conference Fairview Park Marriott
Falls Church, Virginia



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