Friday Flash 01/13/23

Mark Your Calendars: Upcoming Coalition Events

The Coalition is excited to kick off 2023 with a full schedule of all-member events to help contractors prepare for the New Year! We remain dedicated to bringing Coalition members the most valuable discussions with government and industry leaders on key acquisition policies and programs impacting the procurement community throughout the year. Learn more and register for these upcoming events below!

January 24: Overview of the National Defense Authorization Act (NDAA) for Fiscal Year 2023

Join us virtually on January 24 from 10 am – 12 pm EST for our first all-member event of 2023, An Overview of the National Defense Authorization Act (NDAA) for Fiscal Year 2023, presented by Moshe Schwartz, President of Etherton and Associates, Inc.

The NDAA was signed into law on December 23, 2022. During the event, Schwartz will highlight:

  • Trends and focus areas of the NDAA;
  • Acquisition, industrial base, and cybersecurity provisions;
  • How the NDAA may impact the administration’s policy goals; and
  • Potential future areas of focus and change in acquisition and industrial base policy.

We look forward to your participation! To register, click here.

January 24: OASIS+ Meeting with GSA’s Tiffany Hixson

The Coalition has invited Tiffany Hixson, Assistant Commissioner for the Office of Professional Services and Human Capital Categories, to speak to the OASIS+ Working Group during a members-only meeting on January 24 at 2 pm at Northrop Grumman in Tysons, VA. The meeting will feature a focused dialogue on the OASIS+ second draft Request for Proposal (RFP).

To register, click here.

February 1: Year in Review for Small Business Contractors

The Coalition’s Small Business Committee will be hosting a virtual all-member briefing, the Year in Review for Small Business Contractors, on February 1 from 10 am – 12 pm EST. Panelists include:

  • Ken Dodds, Government Contracting Industry Expert at Live Oak Bank;
  • David Black, Partner at Holland & Knight; and
  • Jonathan Williams, Partner at PillieroMazza.

Both small and large businesses are encouraged to register for the event to hear a summary of 2022 laws, regulations, and court decisions impacting small business government contracting including:

  • Mentor-protégé, joint ventures, and subcontracting;
  • Small Disadvantaged Business (SDB) goals;
  • Small Disadvantaged Veteran Owned Small Business (SDVOSB) and Women-Owned Small Business (WOSB) certification; and
  • The Nonmanufacturer Rule and affiliation.

To register for the event, click here. Please direct any questions to JSnyderwine@thecgp.org.

February 2: Webinar – The Cost of Security – Cost Accounting Considerations for CMMC
The Coalition is pleased to host Chess Consulting’s Mike Tomaselli for a webinar on The Cost of Security – Cost Accounting Considerations for CMMC on February 2 from 12:00 – 1:00 pm EST. As investments in cybersecurity capabilities are made in preparation for CMMC, DoD contractors are experiencing a subsequent increase in their costs. Along with concerns in meeting cyber requirements, there is much concern about the ability to recover these costs under DOD contracts. Join us for a discussion on government contract cost accounting standards and principles, including allowability and allocability, that we can apply to CMMC costs, with an aim towards compliance and competitiveness.
To register for the webinar, click here.
February 16: Webinar – False Claims Act Enforcement in 2023: Key Developments and Risk Mitigation Strategies
The risks of exposure to damages and penalties under the civil False Claims Act (FCA) present recurring challenges for government contractors. For this presentation on False Claims Act Enforcement in 2023: Key Developments and Risk Mitigation Strategies, the Coalition is pleased to host Perkins Coie LLP Partners Alexander Canizares and Barak Cohen on February 16 from 12 – 1 pm EST, who will provide a practical overview of key considerations for government contractors related to the FCA, trends in FCA enforcement, and how to manage effectively risks related to whistleblower allegations and qui tam lawsuits.

Among other things, Alex and Barak will address:

  • DOJ’s FCA enforcement priorities;
  • Key takeaways from DOJ’s FY 2022 statistics for FCA settlements and judgments;
  • FCA developments before the Supreme Court and their implications for contractors;
  • Emerging issues related to the FCA and cybersecurity;
  • FCA risks and private equity; and
  • Recent cases involving small business programs and Paycheck Protection Program loans.

To register for the webinar, click here.

As the new Congress kicks off, the Coalition is wasting no time in bringing you actionable information to support your government market business initiatives. Please keep an eye out for future events, as we continue to support our members and promote common sense in government procurement.

GSA Highlights Sustainability Success

GSA has published a review of its Sustainability Successes in a recent GSA blog highlighting “major strides toward helping the Federal Government … combat climate change and create clean energy jobs” in 2022. The post details 10 agency efforts undertaken to realize the Administration’s goals for Federal sustainability. Articulated in the Federal Sustainability Plan released last year, the goals include receiving 100 percent of Federal power from carbon-neutral sources by 2030, net-zero emissions buildings by 2045, and achieving net-zero Federal operations by 2050.

In policy, GSA noted that most new major governmentwide acquisition contracts require contractors to disclose greenhouse gas emissions and set reduction targets. GSA has invited contractors with large sales on the Multiple Award Schedule to disclose their emissions and climate risks via the CDP disclosure (something that could become required under a current proposed rule). To ensure equity in sustainability work, GSA re-established its Environmental Justice Working Group in 2022.

Four other projects are related to Federal buildings. Through funding from the Inflation Reduction Act, GSA will invest $2.15 billion for low-embodied carbon materials, $975 million in emerging and sustainable technologies, and $250 million to convert facilities into High-Performance Green Buildings. The agency, acting on information it received from contractors, has issued new sustainability standards for asphalt and concrete and completed several paving projects using them. GSA is also building two new zero emissions facilities–a U.S. courthouse in Des Moines and a warehouse in Denver.

Two other major physical infrastructure and inventory projects relate to electrifying the Federal vehicle fleet. GSA purchased 3,567 zero-emissions vehicles (ZEV) in 2022, a five-fold increase over the prior year, and launched contracts to help agencies buy ZEV charging infrastructure.

GSA also announced that it has signed its first ever agreement to obtain 100 percent carbon-neutral electricity from a utility. Power consumption in Federal buildings currently accounts for around 25 percent of Federal emissions.

GSA Updates Alliant 3 Draft RFP with Greenhouse Gas Disclosure Criteria

The General Services Administration (GSA) issued a notice last Thursday that the Alliant 3 Draft Request for Proposal (RFP) has been amended to add section L.5.7, Volume 7, Sustainability-Related Disclosures, which includes 3,500 points for sustainability-related public disclosures of greenhouse gas (GHG) emissions for Scopes 1, 2, and 3. More information on the updated self-scoring can be found in Section M.6 (Alliant 3 Scoring Table) and attachment J.P-1 (Document Verification and Self Scoring Worksheet). Due to the amendment, GSA has extended the comment period on the draft RFP to January 31, 2023.

The Coalition submitted member comments on the Alliant 3 Draft RFP on January 6 through its Alliant 3 Working Group. The comments provided feedback on the draft solicitation’s evaluation structure, emerging technology (ET) scope, and Small Business ET Solutions Engagement, while encouraging GSA to release a second draft RFP including all relevant sections.

DLA Seeking Industry Feedback From Suppliers

The Defense Logistics Agency (DLA) is conducting its third industry-wide supplier satisfaction survey since 2018. In order to gather more industry feedback, they have established a link for any company who has done business with DLA to fill out a survey. DLA invites its vendors to complete this voluntary survey to help DLA better understand the factors that drive supplier satisfaction and how DLA measures up. To take the survey, please click here.

Each company should select a single representative to complete this survey. This representative should be best positioned to provide the company’s collective supplier satisfaction feedback with its overall interactions and engagement with DLA at various stages of the acquisition lifecycle. In the event your company’s business with DLA is too complex to provide collective feedback, please contact DLA at dlasuppliersurvey@dla.mil to create additional instances of the survey for your company.

Additional CIO-SP4 Protests Filed

Two more small businesses filed protests on the National Institutes of Health Information Technology Acquisition and Assessment Center’s (NITAAC) CIO-SP4 IT services vehicle, reports Washington Technology. Filed in December, at least one of the protests claims that NITAAC did not use appropriate criteria when evaluating bidders. The Government Accountability Office (GAO) will issue decisions on the protests by early April.

It is uncertain if the protests raise the same issue as the 117 bid protests from small businesses filed last fall, which alleged that NITAAC’s self-scoring threshold was arbitrary. NITAAC responded by agreeing to reassess the threshold and reconsider all affected proposals, so GAO dismissed the protests. NITAAC had previously raised the threshold in October of 2022 in a separate corrective action, but only enough to re-evaluate 10 companies.

GAO also received CIO-SP4 protests regarding NITAAC’s guidance for past performance samples and its treatment of large businesses in mentor-protégé agreements. GAO sustained one part of the latter protest, filed in October 2021, and NITAAC revised the solicitation to allow mentors to submit more experience samples.

CIO-SP4 stands for Chief Information Officer-Solutions and Partners 4. A 10-year governmentwide acquisition contract, it offers IT solutions and services related to biomedical and scientific needs, but also includes more general IT services. Its predecessor, CIO-SP3, includes 137 labor categories. NITAAC will allow customers to keep ordering from CIO-SP3 through April 29, 2023 to ensure continuous coverage.

According to its website, NITAAC plans to announce CIO-SP4 awards by February 15, 2023. Previously, it had announced December 15, 2022 as the expected award date. It intends to award 305 to 510 IDIQ contracts (with around 100 set aside for small businesses), each with a ceiling of $50 billion.

DCMA Finds Defense Agencies Could Improve Documentation

According to Federal News Network, the Defense Contracting Management Agency (DCMA) is working to ensure individual Defense agencies are complying with contracting rules and obligations. DCMA performs reviews for smaller Defense agencies that lack the resources to conduct their own internal reviews. DCMA performs the review for each agency every three years and goes through approximately one hundred contracts at each location to ensure that certain protocols are being followed.

The largest issues identified relate to incomplete documentation. According to DCMA, agencies have failed to document their market research, complete small business coordination records, or keep records of extensions. While many of the errors found can be easily corrected, DCMA considers policy changes to address longer term issues. DCMA found that, in general, the reviewed Defense agencies need to improve their filing of contract actions in the Federal Procurement Data System (FPDS) and include all clauses and solicitations related to specific contract requirements in their filing.

GSA Federal Citizen Fund Receives Additional Funding and Flexibility

FCW reports that the omnibus package for fiscal year 2023, passed in December, gives the GSA Federal Citizen Services Fund (FCSF) new authority to receive funding from agencies for multi-agency or governmentwide tech projects. In addition to the new authorities, the fund received $200 million in spending authority, a $150 million increase from fiscal year 2022. Congress also increased the fund’s annual appropriation to $90 million, an increase of $35 million.

The FCSF supports programs such as USA.gov and contributes to GSA’s Technology Transformation Services. Additionally, the new flexible authority provided by the FCSF could be used to support existing programs, such as FedRAMP.

In the past, Congress expressed concern that the fund had limits on its ability to contribute to cross-agency services. The changes made in the omnibus, however, will now allow agencies to contribute up to $15 million to pursue cross-agency goals. With the increase in funding, GSA plans to expand efforts to improve customer service, such as delivering government funds for disaster recovery to other agencies.

Legal Corner: The FY 2023 National Defense Authorization Act: Key Provisions Relevant to Defense Contractors

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 Alexander O. Canizares and Brenna D. Duncan, Perkins Coie

Inflation relief for defense contractors, a ban on procurement of products and services containing certain Chinese semiconductors, and codification of the Federal Risk and Authorization Management Program (FedRAMP) governing cloud security are among the key provisions relevant to defense contractors in the Fiscal Year (FY) 2023 National Defense Authorization Act (NDAA), which President Biden signed into law on December 23, 2022.

The 2023 NDAA provides $857.9 billion in FY 2023—an $80 billion increase over FY 2022. As in prior years, the NDAA is a vehicle for enacting legislation related to U.S. Department of Defense (DOD) acquisition. Among other things, it provides funding for the DOD’s use of artificial intelligence (AI) and emerging technology as well as new restrictions on the procurement of goods and services using Chinese semiconductor technologies.

Read More (Links to External Site)

Healthcare Corner: Army Major General Dr. Crosland Appointed New DHA Director

Health.mil reports that U.S. Army Major General Dr. Telita Crosland has been appointed as the new Director of the Defense Health Agency (DHA)–the DoD’s health agency for all uniformed personnel. She will succeed outgoing Director Lieutenant General Dr. Ronald Place. As of January 20, Crosland will be a three-star lieutenant general. She most recently served as the Deputy Surgeon General of the U.S. Army, and has a long and decorated career as a uniformed physician. Among other awards, she has received the Legion of Merit and the Meritorious Service Medal.

Speaking at the appointment ceremony, Place emphasized that “organizations must evolve” to continue to serve the mission of military medicine. In his own tenure at the agency, Place oversaw DHA’s takeover of more than 700 facilities previously managed by individual branches and the integration of DHA with the TRICARE network. Crosland stated in her remarks that healthcare is at an “inflection point” but that DHA’s record of excellence will allow it to cope with burgeoning challenges.

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.

Swing and a Miss

Ostensibly What?

The benefits of set-aside contracts should primarily flow to small businesses, which is why there are rules like the limitations on subcontracting and the ostensible subcontractor rule. Compliance with the limitations on subcontracting is generally a question of contract administration unless there is evidence in an offer that an offeror will not comply. SBA’s ostensible subcontractor rule comes up in a size protest where an unsuccessful offeror alleges that the proposed awardee is unduly reliant on a subcontractor or that a subcontractor will perform the primary and vital portion of the contract. If that is the case, SBA will treat the proposed awardee and the subcontractor like a joint venture, and if the subcontractor is not a small business the deemed joint venture is not small and therefore not eligible for award.[1]

In a recent case, the procuring agency issued a solicitation for the application of herbicides as a small business set-aside. An unsuccessful offeror protested, alleging that the apparent successful offeror was affiliated with a subcontractor. In a formal size determination, the Area Office found that a large business would provide the application equipment, aircraft and much of the labor to apply the herbicide. At the Area Office and on appeal, the apparent successful offeror argued among other things that the entity applying the herbicide was not a subcontractor, but instead was a vendor or lessor of the equipment. OHA rejected this argument. A large business would be performing the primary and vital part of the contract, and therefore the firms were affiliated under the ostensible subcontractor rule and not eligible for award.[2]

Ostensibly When?

In government procurement size is generally determined at the time of initial offer including price.[3] This policy gives offerors and the government comfort in knowing that delays in the procurement process will not negatively impact the eligibility of offerors. Of course, there are exceptions. For example, for purposes of determining compliance with the nonmanufacturer, ostensible subcontractor and joint venture rules, the date of final proposal submission or bid is used.[4] In a recent size appeal, OHA remanded to the Area Office because the Area Office used the date of initial offer (June 9, 2021) not the date of final offer (November 1, 2021) to determine that the awardee was not affiliated under the ostensible subcontractor rule.[5]

No COC for You

Contracting officers must determine that a proposed awardee is responsible prior to award of a contract.[6] Responsibility essentially means the proposed awardee has the financial resources, capacity, skills, equipment, facilities, etc. to perform.[7] If an agency rejects or disqualifies a small business on responsibility grounds, the agency must refer the firm to SBA for a possible certificate of competency (COC).[8] If SBA issues a COC, the agency cannot deny the firm award on responsibility grounds.[9] In a recent bid protest, an agency issued an RFQ on an unrestricted basis to firms on a multiple award BPA awarded under the GSA Schedule. The protester claimed that it was eliminated from consideration on responsibility grounds and the agency should have referred it to SBA for possible COC. SBA’s rules provide that for an unrestricted procurement, a firm must be small at the time of application for the COC.[10] The protester was not currently small and was not small at the time of its offer for the BPA, but claimed it was small in 2011 when it submitted its offer for the underlying GSA Schedule contract. GAO denied the protest. The protester did not dispute that it would not have been small at the time of application for a COC had the agency referred the firm to SBA.[11] Interestingly, size in connection with a COC under a small business set-aside is generally determined at the time of initial offer including price, not at the time of application for a COC. Here, the BPA was also unrestricted and the GSA Schedule is considered full and open or unrestricted, so there was not a procurement where size in connection with a COC would have been determined at any time other than the time of application.

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 ken.dodds@liveoak.bank.

[1] 13 CFR 121.103(h)(2).

[2] High Desert Aviation, LLC, SBA No SIZ-6179 (November 23, 2022).

[3] 13 CFR 121.404(a).

[4] 13 CFR 121.404(d).

[5] Veterans Care Medical Equipment, LLC, SBA No. SIZ-6176 (October 25, 2022).

[6] FAR 9.103.

[7] FAR 9.104-1.

[8] FAR 9.105-2(a)(2).

[9] 13 CFR 125.5(m).

[10] 13 CFR 121.404(c).

[11] VSolvit, LLC, B-421048,B-421048.2, Dec. 06, 2022.

GSA Public Meeting on Human Trafficking Protection, January 17

GSA announced that it will hold its annual public meeting on preventing human trafficking in Federal procurement on January 17 from 1 to 3 pm EST. Officials from the Senior Policy Operating Procurement Group Supply Chains Committee and the Chief Acquisition Officers Council will review key regulations and guidance, such as FAR 52.222-50, “Combating Trafficking in Persons,” and the Office of Management and Budget (OMB) Anti-Trafficking Risk Management Practices. They will also discuss other Federal anti-trafficking efforts, training and educational opportunities for contractors, supply chain analysis for trafficking prevention, and “developments in combating trafficking in supply chains that would be helpful to apply to Federal procurement.”

Pre-registered participants, including Federal contractors, will have the opportunity to ask questions and present their own experiences with Federal anti-trafficking efforts. Although the deadline for pre-registration has passed, observers may register here to attend until the start of the meeting.

The annual meeting is part of President Biden’s National Action Plan to Combat Human Trafficking, released two years ago, that requires that some agencies designate a senior official for anti-trafficking work and directs them to develop industry outreach.

The past three Presidential administrations have seen executive and legislative action to reduce trafficking. In 2015, the FAR Council conducted a major update to FAR Subpart 22.17 that prohibited coercive labor updates, created new reporting and investigation, and created special planning and monitoring requirements for contracts outside of the United States greater than $500,000.

In January 2020, OMB issued its memo on Anti-Trafficking Risk Management Best Practices to provide contractors with further guidance and impose stronger requirements for agency implementation. Most recently, the President signed the End Human Trafficking in Government Contracts Act of 2022 last October. The act requires Federal agencies to refer contractors for suspension or debarment if they receive an Inspector General report substantiating allegations of trafficking. Previously, agencies had discretion on whether to conduct a referral.

According to a September 2022 GAO report, “agencies have taken steps to improve oversight of [human trafficking prevention in] contracts” after past studies revealed compliance gaps. A 2021 GAO study found that DoD components “conducted limited oversight of contractors” and did not adequately train personnel, with 12 of 14 contracting officers it interviewed in the Army and Navy unaware of their trafficking prevention responsibilities. The DoD Inspector General and Defense Criminal Investigative Service also failed to report all the human trafficking investigations it conducted. DoD has since implemented several recommendations, although according to GAO’s website, it has yet to clarify its reporting procedures for trafficking.

NASA Plans to Issue RFP for $2 Billion Contract Vehicle in Late February

The National Air and Space Association (NASA) announced plans to release an RFP for a nearly $2 billion contract vehicle. The proposed NASA Consolidated Applications and Platform Services contract vehicle will be a comprehensive enterprise solution for the entirety of NASA’s IT support. The vehicle includes the maintenance of IT systems, development of new applications as needed for NASA, a rationalization of duplicative efforts to create efficiencies across NASA Centers, and other functions. The vehicle’s RFP is scheduled for release on February 28, with an estimated due date of March 31.

NIST Developing New National Semiconductor Technology Center

Nextgov reports that the National Institute of Standards and Technology (NIST) published a SAM.gov notice last Friday seeking information on “qualified Contractors for policy, technical, and analytical support” to develop its National Semiconductor Technology Center (NSTC). The center, which Congress established through the 2020 National Defense Authorization Act, will act as a public-private consortium that will perform semiconductor R&D. Its portfolio includes research on next-generation materials; semiconductor machinery; and assembling, packaging and testing microelectronics. In addition to NIST, DoD and the Department of Energy will help manage the center. How much funding the NSTC will receive is not yet known, but it is part of a broader $11 billion appropriation for research in the CHIPS and Science Act passed last August.

The current notice asks for information and market research on contractors who can “ develop a governance framework for the NSTC, develop R&D policy, support workplans, support stakeholder meetings, and provide subject matter support.” Specific tasks include assessing governance frameworks and creating five separate R&D workplans that cover coordination with the CHIPS Incentive program (a $50 billion program to incentivize domestic semiconductor manufacturing), coordination within the Federal ecosystem, national security, standards, and international engagement.

The notice is not a request for proposal. It notes that if NIST identifies at least two small businesses during its market research, any future procurement would contain a small business set-aside.

Interested parties should submit responses by January 16 at 3:30 pm EST that contain information about potential prices for “labor categories, labor rates and other direct costs.” Responses should also discuss the contractor’s previous engagement with key Federal agencies, previous projects in the Federal and public sector, and describe the contractor’s knowledge of the Federal policy landscape. Submission information is available in the SAM.gov notice.

Register for the AFCEA Bethesda Health IT Summit, Jan 17-18

The Coalition is proud to sponsor AFCEA Bethesda’s 15th Annual Health IT Summit, Collaborating for a Resilient Health IT Ecosystem. The Summit will have two days of agency focused panels held on Tuesday and Wednesday, January 17 and 18. Each day will be a unique opportunity to learn, engage, and connect with key government agencies including HHS, CMS, DHA, VA, NIH, CDC, and FDA on the most important healthcare IT challenges facing government and industry today.

Technology provides an environment for collaboration, cooperation, and coordination among key players in the healthcare system, including government agencies, private-sector partners, and academia. The pandemic has created a rare opportunity to transform and modernize a sprawling healthcare system that has been stubbornly slow to change. At a time when the average life expectancy of Americans has declined for three consecutive years, transforming healthcare means better outcomes and healthier Americans. For that to happen, we must work together.

Coalition members can register here. Be sure to stop by our table which will be located in the Grand Foyer of the hotel, right outside of the Grand Ballroom.

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