TikTok Ban for Federal Contractors Raises Questions; GSA Announces Second Alliant 3 Draft RFP, Extends Alliant 2; and More
FAR & Beyond: Leveraging the Collective Buying Power of the Government
Stay with me now, I know this is a long blog! It provides a perspective through an industry lens regarding its partnership with government.
As a best practice, commercial firms leverage their buying power when acquiring supplies and services to support business operations. They develop acquisition strategies, sources, and contract structures responsive to their operational needs and market conditions. Similarly, GSA focuses on leveraging the government’s buying power to deliver best value mission support for customer agencies.
GSA is to be commended for the strategic investments in, and reforms to, the Multiple Award Schedule (MAS) program. Over the years, these investments and reforms have focused on leveraging agency specific requirements through competition at the task order level. The evolution of the MAS program is reflective of the increasing scope, complexity, depth, and breadth of the federal market and commercial markets. The federal market includes thousands of organizations with distinct missions and tens of thousands of contracting personnel transacting business on behalf of the American people. In turn, technology and the internet have profoundly changed the vast, dynamic commercial market, enhancing transparency, competition, choice, and value.
Our December 16th blog outlined the evolution of the MAS program over the last 30 years. In reviewing that history, the key MAS reforms and investments that today drive competition and value at the order level for customer agency requirements fall into four categories: (1) Contract Structure; (2) e-tools; (3) Ordering procedures; and (4) Training and Outreach.
- Contract Structure
- Mandatory to Non-mandatory: The MAS program started out as a mandatory program whereby all the government’s requirements for certain supplies had to be ordered from MAS contracts. Subsequently, GSA converted these original “requirements contracts” to IDIQ contracts with a guaranteed minimum ($2500) as the foundational step in bringing choice and competition at the order level for customer agencies. GSA complemented this step by establishing continuous open seasons for receipt of offers, expanding access to new offers from 1-2 months a year to 12 months a year. This fundamentally expanded access to the commercial market.
- Reform of the Price Reduction Clause (PRC): GSA modified the PRC to allow MAS contractors to offer price reductions/discounts from their MAS contract-level pricing in response to customer agency order level requirements. Along with the conversion of the contracts from mandatory to optional use, this reform of the PRC jump-started competition and value at the order level for customer agencies.
- More recently, GSA addressed Order Level Materials and implemented Schedules Consolidation. These two reforms enhance choice, transparency, and competition at the order level. Through these changes, GSA has further empowered customer agencies to leverage their requirements to acquire best value, cost effective solutions to meet mission needs.
- E-Tools
- GSA Advantage: GSA launched GSA Advantage and GSA e-library as a first of its kind, government managed electronic catalog and e-commerce platform hosting MAS contract items, including associated pricing, delivery terms, and product descriptions. GSA Advantage provided a new, transparent channel for customer agencies conducting market research in advance of order placement.
- eBuy: Complementing GSA Advantage, GSA subsequently launched eBuy, its electronic Request for Quote (RFQ) tool. eBuy provides customer agencies with the ability to post RFQs seeking quotes from MAS contractors who can view the RFQ and respond with their quotes. GSA Advantage and eBuy significantly increased competition and transparency at the order level for customer agencies.
- Ordering Procedures
- Task/Delivery Order Competition: Congress passed legislation mandating certain competitive notice requirements for the placement of orders under the MAS program. These competition requirements were incorporated in FAR 8.4 as a comprehensive update to the MAS ordering procedures, promoting transparency and opportunity for MAS contractors. Significantly, the comprehensive re-write of the order procedures specifically cited eBuy as a method for providing notice to all MAS contractors for purposes of task order competition.
- Blanket Purchase Agreements (BPAs): The comprehensive re-write also embraced competition and notice for BPAs. BPAs are a unique MAS ordering tool that allows customer agencies to leverage their government buying power to enhance competition, seek price reductions, and obtain best value pricing and solutions to meet mission needs. BPAs account for over half (53% or $21 billion) of the dollar volume of orders under the MAS program, demonstrating customer agencies’ effectiveness in leveraging their government requirements.
- Training and Outreach: As part of its support for customer agencies leveraging their government requirements via the MAS program, GSA has invested significant resources in training and outreach on the effective, competitive, and compliant use of the MAS program to meet mission requirements. GSA conducts in-person training and webinars throughout the year to assist customers and contractors. In addition, through its Interact site, GSA publishes a host of useful MAS market, policy, and program information for customers and contractors.
Against this background, FAS Policy guidance appears out of step, focusing on low price at the contract level while the entire program is built to leverage agency requirements at the order level. For example, to the extent the MAS solicitation’s “highly competitive” language is also reflected in FAS pricing policy. Now that it has been deleted from the solicitation, the corresponding step for FAS will be updates to the policy removing references to “highly competitive.” Otherwise, the deletion from the solicitation will be meaningless for contracting officers and contractors.
Significantly, FAS policy directs contracting officers to “leverage the collective buying power of the government to obtain competitive, market-based pricing.” This directive begs a key question: How is a contracting officer to accomplish such leveraging for a prospective IDIQ contract that provides a guaranteed minimum of $2500 and the opportunity to compete for subsequent work? Perhaps if the MAS program were mandatory, in that all customer agency requirements had to be purchased through the program, FAS policy would have a better case for seeking to “leverage the collective buying power of the government.” Or, perhaps the guaranteed minimum could be significantly increased to reflect the collective buying power of the government in order to achieve the “lower than fair and reasonable pricing” that FAS policy seeks.
The FAS pricing policy ignores the significance of the terms and conditions. Sound, effective contracts reflect a negotiation between the buyer and seller based on the terms and conditions of the deal. The Federal Acquisition Regulation (FAR) recognizes this point by requiring consideration of terms and conditions when determining fair and reasonable pricing for purposes of contract award.
In this case, the standard MAS terms and conditions do not support a price based on leveraging the collective buying power of the federal government because MAS contracts are not requirements contracts. Collective requirements are not sought or fulfilled. Thus, under the circumstances, this policy approach puts MAS contracting officers and contractors/offerors in untenable positions when working towards a meeting of the minds on a fair and reasonable price for purposes of contract award. The unintended consequence is to undermine a program that has been structured to leverage agency requirements through competition at the task order level.
The beneficial approach of the MAS structure has been affirmed by Congress when, in enacting the Section 876 process, it recognized the role of competition at the task order level. There, it authorized GSA to award contracts where price and value were established through competition at the task order level, rather than through contract level pricing. It is clear where the benefits for the government lie. Directives seeking inconsistent goals only work to erode the success of the program and restrict government access to the best that the commercial market has to offer from innovative companies, especially small businesses.
If you got to this point, thank you for your time. We wish you and yours a happy and safe 4th of July!!
TikTok Ban for Federal Contractors Raises Questions about Applicability to Employee Personal Devices
The Coalition is considering submitting comments in response to the FAR interim rule, published June 2, prohibiting TikTok from information technology used in the performance of Federal contracts. The rule requires that contracting officers incorporate the “Prohibition on a ByteDance Covered Application” (FAR 52.204-27) clause into all solicitations issued on or after the rule’s publication. It also requires that this clause be incorporated into all indefinite delivery contracts by July 3 so that the clause applies to future orders.
FAR clause at 52.204–27 prohibits contractors from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the contractor under a contract, including equipment provided by the contractor’s employees. This prohibition applies to devices regardless of whether the device is owned by the Government, the contractor, or the contractor’s employees (e.g., employee-owned devices that are used as part of an employer bring your own device (BYOD) program). According to the interim rule, a personally-owned cell phone that is not used in the performance of the contract is not subject to the prohibition.
One question that industry has raised about the interim rule is whether the TikTok prohibition would apply to contractor employees’ personal devices (e.g., cell phones) if they are used in the performance of government work.
If you would like the Coalition to submit comments in response to the interim rule or have any specific questions or concerns for the Coalition to include in our comments, please contact Ian Bell at ibell@thecgp.org. The deadline for public comments to the Government is August 1, 2023.
GSA Announces Second Alliant 3 Draft RFP, Extends Alliant 2
On Wednesday, GSA announced in an Interact blog post that “as a result of the feedback we received from the first draft RFP, one-on-one listening sessions, and other factors,” there will be a second draft RFP for the Alliant 3, the successor of the best-in-class IT IDIQ Alliant 2, released before the end of 2023. GSA now plans to release the official solicitation in Spring 2024, prior to which it will conduct a pre-proposal conference. As expected, GSA exercised its five-year option period on the Alliant 2 contract, ensuring coverage until the Alliant 3 award is complete.
In an Interact notice, the General Services Administration (GSA) announced that due to feedback it received from the first draft Alliant 3 Request for Proposal (RFP), the agency plans to issue a second draft RFP before the end of the calendar year. The final solicitation is scheduled to be issued in the spring of 2024. GSA plans to conduct a pre-proposal conference while working to ensure that all companies have equal access to information. GSA will be releasing more information in the near future.
The Coalition plans to engage with GSA on the second draft RFP through our Alliant 3 Working Group. We encourage all those interested in the contract who have not already done so to reach out to Michael Hanafin at mhanafin@thecgp.org to join the Alliant 3 Working Group. The working group will receive updates on the contract and provide GSA with industry feedback on the Alliant 3 acquisition strategy.
Webinar Recording Available- CMS Drug Pricing Negotiations
In case you missed it, the “Inflation Reduction Act Webinar on CMS Drug Pricing Negotiations” with Arnold & Porter is now available for members. Life Sciences and Healthcare Regulatory / Government Contracts Partners, James Kim and Liz Lindquist, provide an overview of key provisions and requirements of the IRA and considerations for life sciences companies as they prepare for implementation of the law. Topics covered include, among others:
- The new Medicare price negotiation program
- Inflation-based rebates
- The interconnectedness between the IRA and section 603 of the Veterans Health Care Act of 1992
- Potential portfolio and pipeline implications
- Operational, financial, and compliance considerations
To access the recording, click here. If you are a Premier, Strategic Partner, Executive or Keystone member, please contact Michael Hanafin at mhanafin@thecgp.org for your complimentary registration or for any other information about the webinar.
GSA Requests Volunteers to Test New Supplier Portal
The Multiple Awards Schedule Program Management Office (MAS PMO) has requested volunteers to participate in 60-minute moderated usability tests of wireframes for its new Supplier Portal initiative. The MAS PMO seeks feedback from businesses of all sizes and is particularly interested in hearing from Small or Socially and Economically Disadvantaged Businesses that plan to become a MAS contract holder. Additionally, the MAS PMO is interested in feedback from contractors who have both a GSA Schedule and a VA Federal Supply Schedule contract. Volunteers are expected to attend four testing sessions between June – August 2023 where they will complete tasks and provide feedback while navigating the wireframes. All interested parties may respond to GSA’s RFI here by July 7.
GSA OASIS+ RFP and Symphony Training Recording Now Available
This Tuesday, GSA’s Office of Professional Services and Human Capital (PSHC) released a recorded pre-proposal conference alongside a recorded training on the OASIS+ Submission Portal (OSP/Symphony) on SAM.gov. The optional pre-proposal conference provides an overview of the OASIS+ Request for Proposal (RFPs) and does not introduce any new information to the RFPs released on June 15. The recording can be accessed here. The OSP/Symphony training provides instructions on system navigation for Q&A and proposal submission. The recording can be accessed here. All questions regarding the solicitation must be submitted by 4:00 PM (ET) on July 6 through the OSP.
Calling All Golfers: Register for the Joseph P. Caggiano Memorial Golf Tournament!
Calling all golfers! The Coalition for Government Procurement invites you to our 10th Annual Joseph P. Caggiano Memorial Golf Tournament on August 16 at the Whiskey Creek Golf Club. Gather your team of friends and colleagues, grab your clubs, and mark your calendars for a great day of competition, networking, and making a difference. Whether you’re a seasoned golfer or a beginner, the Joseph P. Caggiano Memorial Tournament promises to be a wonderful time for all in attendance.
The tournament features a scramble format with teams of four golfers. In addition, this year’s event includes a Longest Drive/Closest to the Pin contest. Make sure to register for your chance to compete for some great prizes, which will be presented at the networking reception!
Whiskey Creek Golf Club
The beautiful Whiskey Creek Golf Club, located in Ijamsville, Maryland, offers exceptional an golfing and scenic experience. Whiskey Creek contains many natural features such as streams, springs, stone walls, wetlands, rock outcroppings, broad meadows, pine forests, and views of the Catoctin Mountains. The course, designed by talented architect J. Michael Poellet and world-class golfer Ernie Els, delivers 18 holes of boldness and excitement that complement the stunning views of the natural setting. The strategic design of the course presents a unique challenge at each hole, allowing golfers to make decisions that balance risk and reward.
Playing for Worthy Causes
We are pleased to share that the proceeds from this year’s tournament will support two important causes: The Coalition for Government Procurement Endowed Scholarship Fund for a qualified veteran concentrating their studies in the field of U.S. government procurement at The George Washington University Law School, and Paws for Purple Hearts.
Paws for Purple Hearts strives to improve the lives of veterans and wounded service members facing mobility challenges and trauma-related conditions by providing the highest quality assistance dogs and canine-assisted therapeutic programs while also public awareness about the important role dogs play in helping veterans and service members along the road to recovery. Since 9/11, about 45 percent of service members have returned home with a service-connected disability, including a range of physical and mental health related conditions. Through its programs and the use of the highest quality service dogs, Paws for Purple Hearts works to ease symptoms, promote independence, and ultimately improve the quality of life for veterans and wounded service members. Learn more about this wonderful organization by visiting pawsforpurplehearts.org. The Coalition looks forward to supporting these important causes in Joe’s honor.
Become a Sponsor
The Coalition offers various sponsorship packages for the Joseph P. Caggiano Memorial Golf Tournament that provide fantastic exposure for your organization. Secure your sponsorship now to showcase your commitment to supporting these wonderful causes for veterans while enjoying the benefits of brand visibility. Remaining sponsorship opportunities include:
- Title Sponsorships (1 available)
- Reception Sponsorships (3 available)
- Luncheon Sponsorships (2 available)
- All-Day Beverage Cart Sponsorships (3 available)
- Hole Sponsorships with 4 Players OR Hole Sponsorships with no players (7 available)
- Veranda Club Sponsorships (unlimited)
- Golf Foursomes (unlimited)
- Single Golfer (unlimited)
For more details on the complete list of sponsorship packages and their corresponding benefits, click here. To secure your sponsorship, or if you have any questions, please contact Heather Tarpley at htarpley@thecgp.org.
GSA Publishes FAQs for No Order Left Behind Initiative
GSA has published frequently asked questions (FAQs) for its No Order Left Behind Initiative within the Office of General Supplies and Services (GSS) Global Supply program. The initiative aims to improve order processing, administration, and delivery through better information sharing and collaboration with industry. It began in November 2021 and includes weekly email communications for contractors with Global Supply purchase orders and alerts about orders that require action. The purpose of No Order Left Behind is to “enhance customer satisfaction and reduce customer inquiries about order status by improving visibility and communication around order fulfillment for GSA Contracting Officers and contractors.”
The FAQs include an example of a No Order Left Behind email, who to contact about the initiative, where a contractor can find information on requirements to acknowledge orders and respond to cancellation requests, and more. To access the FAQs, click here.
FAS Industry Partner Symposium, July 19
On July 19, GSA will host a Federal Acquisition Service Industry Partner Symposium where attendees will get insights, guidance and tools about managing a government contract – whatever your level of experience. Whether your business is interested in contracting with the government or is currently contracting, participants will walk away with actionable insights and detailed plans to help discover potential growth avenues for their organization.
Objectives
- Understand how your business can get started selling to the government and how to navigate procurement tools.
- Gain a better understanding of the market, how to research opportunities, and improve capabilities statements.
- Learn how we are diversifying our supply base.
Tracks at a glance
No matter what track you’re on, GSA will cover key points targeted to your concerns!
GSA will also address how they’re expanding and diversifying the supply base and explain the upcoming opportunities.
Track 1: Prospective Small Business — Wondering if the federal government is the right marketplace for your small business? Find out how to decide and how easy it is to get started. GSA will help you find out if you’re the right fit, and how to get started.
Track 2: New Contract Holders — Wondering what to do first, or next? GSA has got you covered: they’ll explain how to market, find opportunities, present your case, compete, and understand ALL the government’s acronyms: RFI, RFQ, RFP.
Track 3: All Industry — Wondering how to navigate policies and procedures? GSA has got the answers for you: procurement tools, pricing updates, modifications processing, and teaming possibilities. Bring your questions.
What to expect
Senior Executive Panel: Hear from Government Executives on growing a diverse resilient government marketplace.
Virtual Networking: Connect with experts and industry leaders. Meet one-on-one for tailored advice. Build new relationships, broaden your perspectives and find ways to solve problems with other acquisition professionals and contract holders. Talk to your peers and learn from their ideas and experiences.
Exhibit Floor: Experts can advise on how to solve your critical priorities. Get answers about various GSA websites and tools industry pros use to find business opportunities, manage their contract, and bid on procurement requests.
For more information on this live virtual event, click here.
Legal Corner: Contractors: Direct Employees to Remove TikTok from Personal Cell Phones, Other Devices
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: Terry L. Elling | Jeremy D. Burkhart
Highlights
- The Federal Acquisition Regulatory Council (FAR Council) recently issued an interim rule, FAR 52.204-27, which implements the Office of Management and Budget’s (OMB) guidance prohibiting the use of TikTok on information technology used by federal agencies and contractors and expands the reach of the previous prohibition of TikTok on personal devices that are used in contract performance.
- This Holland & Knight alert outlines the interim rule and discusses how contractors will need to direct their employees to remove TikTok from personal cell phones and other devices.
Holland & Knight previously noted an Office of Management and Budget (OMB) memorandum prohibiting the use of TikTok on information technology used by federal agencies and contractors. (See Holland & Knight’s previous blog post, “Government Contracts Face an Immediate Deadline to Delete TikTok from Some IT,” March 28, 2023.) The authors also discussed the immediate ramifications applicable to government contractors and steps contractors could take to ensure they were prepared to implement requirements that would soon apply to them.
The Federal Acquisition Regulatory Council (FAR Council) recently issued an interim rule, FAR 52.204-27, which implements the OMB’s guidance and expands the reach of the previous prohibition. This Holland & Knight alert outlines the interim rule and discusses how contractors will need to direct their employees to remove TikTok from any personal devices that are used in contract performance.
Recap: OMB Directive to Federal Agencies and Contractors
On Feb. 28, 2023, the White House issued a memorandum requiring the removal of TikTok1 from federal information technology, fulfilling the requirement set forth in the Consolidated Appropriations Act.
The OMB directive had important implications for government contractors, as the memo applied to all “information technology,” as that term is defined in 40 U.S.C.§ 11101(6). This covered not only information technology (IT) owned or operated by federal agencies, but also to IT “used by a contractor under a contract with the executive agency that requires the use” of that IT, whether expressly or “to a significant extent in the performance of a service or the furnishing of a product.” (emphasis added)
This definition does not “include any equipment acquired by a federal contractor incidental to a federal contract.” The OMB directive provided no detail on this point, although the authors opined that the prohibition would not apply to IT that is reasonably necessary to a contractor’s business, but only incidental to the performance of its government contract such as payroll, financial management and human resources systems, especially if those systems did not interconnect with any federal information systems.2
In other words, the OMB memo covered IT owned or operated by federal agencies, as well as any IT used by a contractor under a contract where the agency requires the use of that IT, either expressly or to a significant extent.
The New Interim Rule
On June 2, 2023, the FAR Council published an interim rule to implement the OMB directive.
Carried out by FAR 52.204-27, the interim rule is effective immediately. Contracting officers are required to include FAR 52.204-27 in any solicitations, awards, modifications, exercise of options or extensions on or after June 2, 2023. Existing indefinite delivery, indefinite quantity (IDIQ) contracts must be amended by July 3, 2023, so that the new clause will apply to future orders.
FAR 52.204-27 contains largely the same definitions as set forth in the OMB directive. However, the prohibition itself is more broad. It provides:
Prohibition. Section 102 of Division R of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328), the No TikTok on Government Devices Act, and its implementing guidance under Office of Management and Budget (OMB) Memorandum M-23-13, dated February 27, 2023, “No TikTok on Government Devices” Implementation Guidance, collectively prohibit the presence or use of a covered application on executive agency information technology, including certain equipment used by Federal contractors. The Contractor is prohibited from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the Contractor under this contract, including equipment provided by the Contractor’s employees …
FAR 52.204-27(b) (emphasis added)
Although the clause purports to merely implement the OMB directive and the No TikTok on Government Devices Act, the prohibition of TikTok on any IT “used or provided by the Contractor” goes further than either of these authorities.3 Regarding contractor IT, the OMB directive only covered IT that was used “to a significant extent in the performance of a service or the furnishing of a product.” Now, based on the interim rule, the prohibition covers IT that is used to any extent by the contractor under a contract. Thus, it is no longer a question of how much private IT is being used in the performance of a government contract, but merely whether private IT is being used at all in performance.
This new language indicates that all contractor IT that is involved with a federal contract is included with the prohibition. Said another way, what IT could be “acquired by a Federal contractor incidental to a Federal contract,” (equipment which the clause states is excluded from the prohibition”), yet not be “used or provided by the Contractor.” In this way, FAR 52.204-27(a)(3) and FAR 52.204-27(b) are contradictory. The FAR Council should consider deleting or revising one of the following phrases:
- “Does not include any equipment acquired by a Federal contractor incidental to a Federal contract.”
- “prohibited from having or using a covered application on … any information technology used or provided by the Contractor under this contract …”
The new language also very clearly extends the TikTok prohibition to the personal devices of company employees. While neither the OMB directive nor the No TikTok on Government Devices Act mentioned contractor employees’ personal IT, FAR 52.204-27(b) expressly includes “equipment provided by the Contractor’s employees” under the prohibition. The Federal Register notice echoes this, providing the following guidance on personal devices:
This prohibition applies to devices regardless of whether the device is owned by the Government, the contractor, or the contractor’s employees (e.g., employee-owned devices that are used as part of an employer bring your own device (BYOD) program). A personally-owned cell phone that is not used in the performance of the contract is not subject to the prohibition.
88 FR 36430, 36430 (emphasis added)
While it is clear that FAR 52.204-27(b) includes personal devices under the prohibition, how can a company discern when a personal device crosses the line into being used on a contract?
What if Employees Only Use Their Personal Cell Phones for Email?
Client inquiries often follow a common fact pattern, asking:
We do not issue cell phones to employees. However, we allow them to access email and business messaging (i.e. Microsoft Teams, Slack) from their personal cell phones. Do we need to require employees to delete TikTok off their personal cell phone, even if it the only time the phone is used for contract performance is to access email or Teams?
The answer to this question is a firm “Yes.” Pursuant to the language of FAR 52.204-27, if a contractor’s employees are using their personal cell phones to email, Teams message, text message or even talk in relation to a federal contract, then those personal cell phones are apparently subject to FAR 52.204-27’s prohibition.
The only personal devices not subject to the TikTok prohibition would be those devices that are not used at all in contract performance. Thus, if a contractor communicates with an employee via that employee’s personal cell phone to discuss a federal contract, that cell phone would fall under the TikTok prohibition.
Final Takeaways
To make sure they are compliant with FAR 52.204-27, government contractors should take the following actions:
- Remove TikTok from all contractor IT.
- Direct employees using personal devices for contract work to uninstall TikTok from such devices. As a best practice, companies should provide guidance to employees on how to remove the program.
- Identify all devices used in performance of government contracts, including contractor and employee personal devices.
- Consult IT professionals on technical solutions to ensure compliance with the above.
- Once FAR 52.204-27 is added to existing contracts, contractors should ensure that they flow down this clause to their subcontractors.
Public comments on the interim rule can be submitted until Aug. 1, 2023. To the extent a company takes issue with any of the above requirements, it should consider submitting a comment4 to the Regulatory Secretariat Division to voice its concerns.
Notes
1 The “covered application” being banned is defined as “the social networking service TikTok or any successor application or service of TikTok developed or provided by ByteDance Limited or an entity owned by ByteDance Limited.”
2 This view is consistent with that expressed in 40 U.S.C. 11101, U.S. Department of Defense Instruction 5000.82, Acquisition of Information Technology, and OMB’s 2012 Memo (M-12-20) providing reporting instructions under the Federal Information Security Management Act (FISMA).
3 Neither the No TikTok on Government Devices Act nor OMB’s “No TikTok on Government Devices” Implementation Guidance Memorandum contain the language “information technology used or provided by the Contractor.”
4 The process for submitting comments is described under the “Comment Date” and “Addresses” headings.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.
Healthcare Corner: VA FSS Moving to GSA for Sales Reporting
In case you missed it, the VA National Acquisition Center (NAC) has announced that the VA Federal Supply Schedules (FSS) will be moving to GSA’s platform for Schedule sales reporting and Industrial Funding Fee remittance by the end of 2023. More details are in the VA FSS announcement below. Also, expect an email notice from the VA in the coming weeks about a change to the IFF and Sales Reporting clause, 552.238-80, which will reduce the reporting timeframe from 60 to 30 days.
Upcoming Transition of FSS Sales Reporting and Industrial Funding Fee Remittance Portal
VA FSS is working in collaboration with General Services Administration (GSA) to modernize systems, standardize processes, and streamline the user experience. As part of these ongoing efforts, VA FSS will be transitioning the sales reporting and Industrial Funding Fee (IFF) remittance process to GSA’s Federal Acquisition Service (FAS) Sales Reporting Portal (SRP) by the end of calendar year 2023.
No action is required now. This process will begin in the upcoming months and will occur throughout calendar year 2023, as you can see in our Project Timeline. VA FSS has a dedicated team supporting the transition of contracts and data, and this team will stay in contact with you throughout the process to ensure a smooth transition.
Project TimeLine
Notification Phase 1 — February to March 2023
Announce transition to both internal and external stakeholders
Designate central location(email) to field questions
VA announce updates to Clause 552.238-80
System Development Phase 2 — April to September 2023
Share information on key implementation actions and training sessions
Develop system processes to load and manage
Contract Load, Data Migration, and Training Phase 3 — October to December 2023
Load VA contracts into SRP
Hold training sessions for VA CO’s, Industry, and Help Desk
Transfer historical sales data to FAS SRP
First Sales Reporting and Project Close Out Phase 4 — January 2024
Monitor first sales reporting cycle
Support CO’s, Industry, and Help Desk as needed
Provide information on final project status
Closeout project and transition to production phase
As mentioned above, no action is needed now. We will keep you updated on next steps and key activities. In the meantime, feel free to visit the SRP site and review the help section tutorials in the upper right-hand corner of the screen. This will provide an overview of the new process you will use to report sales and remit IFF. Note that VA FSS contractors will only be using the quarterly sales reporting features inside the system.
While you are waiting for our next communications on this transition, please also consult our Frequently Asked Questions (FAQs) on the SRP and the transition process.
Frequently Asked Questions
Why is VA moving sales reporting to GSAs FAS Sales Reporting Portal (SRP)?
VA FSS is transitioning the reporting of sales and remittance of the IFF over to the new GSA’s FAS Sales Reporting Portal. This will standardize GSA and VA sales reporting processes by using the same modernized IT infrastructure that will simplify sales reporting and IFF payment process. The goal of this transition is to provide a streamlined process under one robust and modern system.
Will contractors have to report monthly sales data in the FAS Sales Reporting Portal?
No, VA FSS contractors will still report sales and remit IFF on a quarterly basis. The only difference is they will be reporting sales in the FAS Sales Reporting Portal rather than in the VA Sales Reporting System.
Will only authorized points of contact listed on the VA contract have access to the FAS Sales Reporting Portal?
Yes, The FAS Sales Reporting Portal supports role-based access as one of its features. In addition to individual authentication and authorization, VA FSS users are assigned specific roles and permissions, which allow the user to perform very specific actions within the system.
Where do I go for help once the transition has taken place?
Contact the GSA Vendor Support Center help desk for technical assistance
Vendor Support Center
Tel: 877-495-4849
Email: vendor.support@gsa.gov
How can I view the new FAS Sales Reporting Portal System prior to the transition?
You can watch the short tutorial videos posted at the FAS SRP Training site. This will give you a great head start and look into the new system. Note that only the quarterly applications will apply to VA FSS.
How can I prepare for this transition?
The VA will be sending out emails to contractors that hold Federal Supply Schedules contracts. The emails will explain the process and what needs to take place as we transition from one system to the other. The best way to prepare for this transition would be to make sure all your POC’s listed on your contract are up to date and accurate. This can be accomplished by reaching out to your Contracting Officer to confirm the POC information and then submitting any required documentation to make any necessary changes.
Will all of my data flow over to the new FAS Sales Reporting Portal?
Yes, all of the past data will be transitioned over to the new FAS Sales Reporting Portal and will be visible over the coming months. This transition of historical data will happen after the final sales are reported and IFF remitted in the legacy VA Sales Reporting System. Please make sure sales reporting is kept current during calendar year 2023 so that sales information can be transferred in a timely manner.
After the transition, how can contractors adjust sales which were reported in the legacy VA Sales Reporting System?
Contractors will be able to adjust quarterly sales for past reporting periods in the FAS Sales Reporting Portal once the historical data has been migrated. Reminder, no quarter is exempt from sales reporting, even zero sales must be reported for the applicable quarter.
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.
Size Protest Timeliness; NAICS Code Selection
Too Late Two Ways
On March 2, 2022, the USDA issued an RFQ to firms that it had previously awarded BPAs to under their GSA Schedule contracts. The USDA set the RFQ aside for small business but did not request size certifications in connection with the order. On May 13, 2022, the USDA awarded the order and notified unsuccessful offerors. On May 23, 2022, an unsuccessful offeror filed a bid protest at GAO. On August 12, 2022, USDA agreed to take corrective and reconsider its award decision. However, USDA did not terminate the initial award. On September 16, 2022, USDA reaffirmed the initial award. On September 23, 2022, the unsuccessful offeror filed a size protest.
On February 10, 2023, the Area Office dismissed the size protest as untimely because it was not filed within five business days of the initial notice of award which occurred on May 13, 2022. On appeal, OHA explained that under the size protest timeliness rules applicable to the procurement, corrective action or the possibility of a new award decision as a result of a bid protest did not alter the general requirement to file a size protest within five business days of notice of the initial award. OHA further held that even if the size protest was timely following the corrective action, size could not be protested in connection with the order because the procuring agency did not request size certifications in connection with the order.[1]
Although not applicable to the USDA’s procurement, SBA’s new rules effective May 30, 2023, provide that SBA will not process size protests where a procuring agency decides to reevaluate offers as part of a corrective action in response to a bid protest, unless the contracting officer makes a written request to proceed and demonstrates that the corrective action will not result in a change to the apparent successful offeror or awardee.[2] Under SBA’s new rule, unsuccessful offerors can protest the size status of the new or previous apparent successful offeror within five business days of notice of the award decision following reevaluation.[3]
And the correct NAICS code is?
The VA issued an RFP for a contractor to provide 41 radiology technologists under a contract with a base term of one year with two one-year options. The CO assigned NAICS code 561320 (Temporary Help Services) to the RFP with a size standard of $34 million. A firm appealed to OHA, arguing the correct NAICS code was 621399 (Offices of All Other Miscellaneous Health Practitioners) with a size standard of $10 million. The standard of review in a NAICS appeal is whether the selected NAICS code was based on a clear error of fact or law. The industry description for NAICS 561320 (Temporary Help Services) provides that firms in this industry supply employees for limited periods of time. Here, the contractor would provide technologists for three years. Further, firms in the Temporary Help Services industry do not directly supervise the provided employees at the work site. Here, the VA’s RFP provided that the contractor, not the VA, would supervise the technologists. Thus, OHA found the CO’s selection of NAICS code 561320 was clearly erroneous. OHA then must select the appropriate NAICS code. OHA considers, but is not limited to, the NAICS code suggested by the appellant. OHA selected NAICS code 621512 (Diagnostic Imaging Centers) with a size standard of $19 million for the RFP. The fact that the services would be provided at the VA’s facilities, and not the contractor’s facilities, was not determinative. It is the services themselves, not the location of performance, that is relevant for purposes of assigning a NAICS code to a solicitation.[4]
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[1] Size Appeal of Glacier Technologies, LLC, SBA No. SIZ-6217 (May 31, 2023).
[2] 13 CFR 121.1004(g)(1).
[3] 13 CFR 121.1004(g)(2).
[4] NAICS Appeal of Laredo Technical Services, Inc., SBA No. NAICS-6216 (May 30, 2023).
Coalition Submits Comments on CISA Software Self-Attestation Form
On Monday, the Coalition submitted its final comments in response to CISA’s draft Secure Software Self-Attestation Form for contractors. We suggested changes to the notification obligation, third party assessment regime, the reporting burden estimate, and the scope of the software and other technologies that Federal contractors will have to submit the self-attestation for. To read the comments, click here. For any questions, please contact Ian Bell at ibell@thecgp.org.
CISA Releases Two Guidance Documents on Securing Cloud Applications
The Cybersecurity and Infrastructure Agency (CISA) released two key guidance documents this week through its Secure Cloud Business Applications (SCuBA) project on securing cloud business applications: the Extensible Visibility Reference Framework (eVRF) and the SCuBA Technical Reference Architecture (TRA). Agencies will use the eVRF to identify what data they need to have visibility into their cloud software to mitigate threats and remediate gaps in visibility. The SCuBA technical reference is a security guide for “cloud deployment, adaptable solutions, secure architecture, agile development, and zero trust frameworks.”
Later in the year, SCuBA will release specific baseline configurations for Microsoft 365 software to give agencies readymade, tested configurations for the widely used tools. It is currently piloting an automated tool, “ScubaGear,” to verify baseline compliance. SCuBA plans to develop baselines for Google Workspace this summer and an automated eVRF tool to detect visibility gaps.
IT/Services Committee Meeting with GSA’s Laura Stanton, July 11
Assistant Commissioner Laura Stanton will speak to the IT/Services Committee with an update on the GSA’s Office of Information Technology Category on July 11 at 10:00 AM (ET). The meeting will be held at the Ballston office of CGI Federal, 1000 N Glebe Rd, 9th Floor, Arlington, VA, 22201. Virtual attendance will be available.
More details are forthcoming on the topics for discussion. If members have any questions you would like answered at the meeting, please send them to Joseph Snyderwine at JSnyderwine@thecgp.org.
To register for the meeting, click here. For any questions about registration, please contact Erin Cartwright at ECartwright@thecgp.org.
Pharmaceutical Subcommittee Meeting with HHS Cybersecurity Center, July 18
Join the Pharmaceutical Subcommittee on July 18 at 10:00 AM (ET) for a virtual meeting with the Health Sector Cybersecurity Coordination Center (HC3) at the U.S. Department of Health and Human Services (HHS). HC3, within the HHS Office of the Chief Information Officer (CIO), partners with private healthcare and public health sector organizations to provide information on cybersecurity threats and mitigations and to strengthen cybersecurity collaboration across the sector. Our guest speaker will be Troy Adams, Cyber Engagement Specialist, at HC3. During the presentation, Adams will give an overview of cybersecurity threats to the healthcare sector, the Federal government’s response and government resources available to address these threats.
To register, click here. For questions about registration, please contact Erin Cartwright at ecartwright@thecgp.org.
Green Committee Regulatory and Policy Roundup, July 25
The Coalition’s Green Committee will present recent and upcoming regulations, including the SEC’s and FAR Council’s greenhouse gas disclosure rules; potential GSA rulemaking on single-use plastics; GSA’s investment in sustainable buildings; and the EPA’s ecolabels program. This virtual meeting will be held on July 25 at 10:00 AM (ET).
To register for the meeting, click here. For any questions about registration, please contact Erin Cartwright at ecartwright@thecgp.org.
IT/Services Committee Meeting with GSA’s Tiffany Hixson, August 10
The IT/Services Committee is pleased to announce that Assistant Commissioner Tiffany Hixson will provide members with an update on GSA’s Office of Professional Services and Human Capital Categories on August 10 at 10:00 AM (ET). The meeting will be held at the LMI, 7940 Jones Branch Drive, Tysons, VA. Virtual attendance will also be available.
More details are forthcoming on the topics for discussion. If members have any questions you would like answered at the meeting, please send them to Joseph Snyderwine at JSnyderwine@thecgp.org.
To register for the meeting, click here. For any questions about registration, please contact Erin Cartwright at ecartwright@thecgp.org.