Friday Flash 03.12.21

On Anniversaries, Perseverance, and Hope

One year ago, our nation faced the realities of the pandemic, and the Coalition faced the difficult choice that enterprises across this nation faced. On March 16th, ominously one day after the Ides of March, the Coalition began operating virtually.

Much has happened since then. In the face of the quarantine, our contracting community was forced to rise to the task of reorienting its processes and contract performance as if it were embarking on a wartime effort. The contracting community came to the fore by leveraging technology to maintain continuity of performance, by maintaining staff at the ready to support government programs, and by implementing supply production and distribution activities responsive to government-directed needs. Likewise, the Coalition rapidly leveraged virtual tools to serve our stakeholders in the government procurement community.

Indeed, over the course of the last year, the Coalition continued to publish its weekly Friday Flash and Tuesday Tracker, providing timely operational and policy information for members to leverage in their efforts to serve their government customers. The Coalition organized webinars to provide assistance in understanding and performing in a quarantine environment. We are grateful to the procurement community for its strong support of our first virtual Fall Training Conference. So too, the Coalition maintained vigilance over the government ecosystem, providing commentary or regulatory input on key issues facing contractors, including obligations under the Defense Production Act, funding for the maintenance of contractors in ready state for program performance, and the implementation of Section 889 regarding restrictions on certain telecommunications and video products and services from specific Chinese manufacturers. 

Over the past year we also saw the successful rise of the Coalition’s independent sister advocacy entity, the Center for Procurement Advocacy (CPA), under the leadership of Tim Cook. Almost immediately, the CPA established itself as a recognized thought leader in the government policy space on the Hill, advocating for its members on key issues, like contractor funding to maintain contractors in ready state during the pandemic, IT modernization funding, and the rationalization of compliance and procurement regimes across government. 

After a year of closures and modifications due to the pandemic, we acknowledge that sad loss of life experienced by our country and countries around the world. Still, we see hope on the horizon.  As the result of an unprecedented research and development effort, our nation possesses not only therapeutics for those stricken with the disease, but also, three vaccines to arrest the spread of the COVID-19 virus. In addition, the creativity and organizational flexibility unleashed by government agencies and the industrial base are helping our nation to “return to normal.” These signs of hope are a testament to the sacrifices of so many in government and the private sector.

What the new normal will look like based on our pandemic experience remains to be seen.  Certainly, by “working the work,” government and private sector organizations have come to realize not only the power of the technology and other tools at their disposal, but also the operational efficiencies that were necessitated by the exigent circumstances under which they performed. Whatever the outcome, however, the Coalition believes that our community put its best foot forward when national duty called, and we look forward to engaging personally with you as we continue our efforts to improve the processes and programs that serve the citizens of this great nation. 

Finally, to all the procurement professionals from across government and industry, thank you for your strong support and participation over the last year. We look forward to seeing you at the upcoming virtual Spring Training Conference on May 19-20.  Invitations to your government colleagues will be going out over the next two weeks. To our members, a special thanks for your continuing commitment to the Coalition.   

Congress Passes $1.9 Trillion in COVID-19 Relief 

On Thursday, the latest COVID-19 relief bill, the American Relief Plan of 2021, was signed by the President. Among the provisions in the $1.9 trillion COVID-19 relief bill, is an extension for Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Section 3610 is a relief authority that allows the Government to reimburse contractors for paid leave if contractors are unable to work, but should be kept in a ready state. The bill would extend the Section 3610 authority until September 30, 2021.  

Additionally, the relief bill includes $1 billion in funding for the Technology Modernization Fund (TMF), reports Federal Computer WeekThe funding to the TMF will last through the end of fiscal year 2025, and represents the largest appropriation that Congress has provided to TMF since its creation. The bill also includes $650 million for the Cybersecurity and Infrastructure Security Agency (CISA) to improve the Government’s cybersecurity posture, including risk mitigation on federal networks and systems. 

The new COVID relief bill also includes about $6 billion in funding to the Department of Health and Human Services (HHS) for research, development, manufacturing, production, and the purchase of vaccines, therapeutics, and ancillary medical products and supplies for COVID-19 response. The Food and Drug Administration (FDA) will receive $500 million to go towards continuing manufacturing of vaccines, and facilitation and inspections of manufacturing vaccines and medical devices delayed or cancelled due to COVID-19.  

The bill also provides $100 million in funding for fiscal year 2021 for the supply chain modernization initiative at the U.S. Department of Veterans Affairs.

Finally, Congress provided funding to combat COVID related products that violate U.S. safety and other Federal standards.  The bill provides $50 million in funding to the Consumer Product Safety Commission (CPSC), which will be allocated to increase monitoring at ports of entry and on internet websites for new and used consumer products, especially related to COVID-19, that violate the safety and other standards monitored by the CPSC. See full bill here 

  

New Chief Acquisition Officer at the VA 

Michael Parrish has been appointed as the Chief Acquisition Officer and Principal Executive Director for the Office of Acquisition, Logistics, and Construction (OALC) of the Department of Veterans Affairs (VA). Mr. Parrish will oversee all acquisition, contract administration, and the supply chain for the VA. Mr. Parrish is a graduate of the US Military Academy and served for 14 years of active duty in the Army, including as an Air Operations Officer in Desert Storm. In addition to his military experience, Mr. Parrish served as the chairman and CEO for several publicly traded companies, including an environmental services business. Click here to read his full bio.  

The Coalition congratulates Mr. Parrish on his new role and looks forward to working with him to advance the VA’s mission of providing world-class healthcare to veterans.

 

GSA Extends Deadlines for COVID-19 Policies  

The General Services Administration (GSA) announced extensions for three acquisition policies that have been implemented to help the Government respond to COVID-19. First, GSA extended a purchase exception for the AbilityOne program. The exception waives certain AbilityOne requirements for products where capacity exceeded demand. The exception was extended until September 30, 2021. 

GSA also extended the authority granted through Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act until March 31, 2021. Section 3610 permits the Government to reimburse paid leave for a contractor to keep its employees or subcontractors in a ready state.  

Finally, GSA extended a moratorium on the minimum sales requirement for Schedule contracts until September 30, 2021.  

 

The Latest Developments Under GSA’s Federal Marketplace Strategy 

On March 5, the General Services Administration (GSA) released the Federal Marketplace (FMP) Strategy Winter 2021 which provides updates on GSA’s ongoing policy, process, and technology projects. Three of the topics discussed are catalog management, GSA FAS ID, and SAM.gov. Some of the updates and improvements that GSA highlights are: 

  • Continuing to build out GSA’s catalog data repository; 
  • Beginning to update catalog product data for products offered through the GSA’s Multiple Award Schedule (MAS), which will improve initial catalog load time for suppliers; 
  • Improving GSA’s FAS ID has made logging on to all FAS systems easier and safer for customers and suppliers; and
  • Merging legacy SAM.gov with beta.SAM.gov in Spring of 2021, which means suppliers and customers will not have to login to two different sites to complete business.

GSA also discusses the FMP on GSA’s FAS Focus Podcast. Crystal Philcox, FMP Strategy Executive Sponsor and Assistant Commissioner for Enterprise Strategy Management, talked about the FMP Winter 2021 Strategy highlights and the future of FMP. Access the podcashere. 

Update on Polaris Small Business Contract 

On March 9, the General Services Administration (GSA) provided an update on the Polaris contract. The final RFP is not expected to be released until later this summer. The planned North American Industry Classification System (NAICS) for Polaris is 541512 (Computer Systems Design Services), which currently has a small business size standard of $30 million. Polaris is intended for small businesses, with separate pools for women-owned small businesses (WOSB) and HUBZone small businesses. To be eligible to compete for the WOSB or HUBZone pools, companies must have the proper socioeconomic certification by the time of offer submission. At this time, an 8(a) pool is not anticipated within Polaris. Small businesses are encouraged to submit proposals for all pools in which they are eligible and wish to compete for an award. GSA will be providing future Polaris updates on GSA Interact. 

 

GSA Working to Improve the Ease of Interagency Data and Cloud Collaboration 

FedScoop reported that the General Services Administration (GSA) is working with the Federal Chief Information Officers Council leadership to reduce barriers to interagency data and cloud collaboration. Dan Pomeroy, Deputy Associate Administrator in the Office of Information Integrity and Acccess, stated that GSA is creating configuration guidance and developing pilots to whitelist Federal Risk and Authorization Management Program (FEDRAMP) approved cloud technology blocked between agencies. 

The COVID-19 pandemic brought these changes to the forefront. During the pandemic, some agencies have not been able to have interagency video calls without a connectivity agreement, due to outdated policies. GSA also upgraded older data-sharing architectures before the pandemic, and is now investing in platforms that can grow over time if legacy systems become obsolete. 

 

DoD Onboards Thousands of New Users to Electronic Health System  

Fedscoop reported that the Department of Defense (DoD) added 6,000 new users to its modernized electronic health system, MHS Genesis. The deployment took place in facilities in Southern California. This latest addition brings the total to 20,000 users at 20 facilities across the Military Health Service. The new system modernizes the ways in which medical staff interact with patient data and migrates DoD’s health records to a cloud system. Deployments of MHS Genesis are currently taking place in specific regions of the United States and often take several months to complete. Full deployment of the system is set for the end of 2023. DoD’s system will eventually be interoperable with the Department of Veterans Affairs’ (VA) electronic health record, streamlining the transfer of health records between the two agencies. 

 

House Armed Services Chairman Smith Discusses Tech Plans 

According to Fedscoop, during a virtual appearance on March 5, House Armed Services Committee Chairman Rep. Adam Smith (D-WA) discussed new ways for the Department of Defense (DoD) to purchase technology and develop improved information systems. Smith noted that improving information systems will be one of the most critical investments in upcoming military budgets. The Committee will be reviewing old weapons systems and programs. Previously, Smith had announced the formation of the Subcommittee on Cyber, Innovative Technologies, and Information Systems (CITI) to focus on issues including cybersecurity operations, artificial intelligence policy and programs, computer software acquisition policy, information technology systems, and electronic warfare policy.  

Smith also authorized the Future of Defense Task Force that recommends a “revolution” of innovation, technology, and acquisition systems. Smith wants to shift the thinking of Congress and DoD to “outcomes, not process,” especially in relation to technology. Smith and Committee Ranking Member Rep. Mike Rogers (R-AL) recently announced a supply chain task force that will look for ways to improve the industrial base that provides DoD with innovative technologies. 

 

GSA Advantage! Hardware Customers to be Surveyed on Past Orders  

The General Services Administration (GSA) announced that the Heartland Acquisition Center will conduct a survey of customers who place orders on GSA Advantage! for Multiple Award Schedule (MAS) contractors with the Special Item Number (SIN) 332510C covering Hardware Store, Home Improvement Center, Industrial or General Supply Store, or Industrial Maintenance Repair and Operations (MRO) Distributor Catalog. The survey will be released on or around April 12, 2021, and will be open for 60 days. Not all customers will receive a survey. Instead, GSA will send surveys to customers randomly or based on the purchased item’s assessment. According to GSA, “item assessments are determined by the possibility of the item not complying with Trade Agreements Act (TAA), Made in America claims (MIA), substitute items (bait and switch) or black/grey market items.” 

Surveys will ask customers to respond on contractor’s timeliness in delivery, product availability, if the item was properly represented on Advantage, if the order was accurately fulfilled, customer service, and other metrics. For more information, GSA will be holding a webinar on April 5 from 2 to 3 pm EST. On April 5, the webinar can be accessed here. 

 

GSA Issues Policy for Contractor Self-Assessments 

The General Services Administration (GSA) issued an Acquisition Alert (AA) to provide guidance for contracting officers (CO) on contractor self-assessments. The self-assessments can be used for reporting to the Contractor Performance Assessment System (CPARS). COs may request, but not require, the assessment during the post-award phase of contract administration. Contractors should not charge the Government for the self-assessment.  

The AA provides a sample letter for COs to request the self-assessment, and procedures to follow if the CO and contractor disagree on the assessment. According to GSA, the assessments should be requested annually.  

 

Legal Corner: Biden Leaves in Place Key Portions of Buy American Act Changes, Targets New Domestic End Product Test and Services

Authors: Jacqueline Unger and Anna Sullivan; PilieroMazza PLLC

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. 

President Biden signed an executive order (EO) on January 25, 2021, titled “Ensuring the Future Is Made in All of America by All of America’s Workers.” Referring broadly to all statutes, regulations, rules, and executive orders that relate to Buy America, Buy American, or domestic sourcing requirements as “Made in America Laws,” the EO expresses the new administration’s policy that the U.S. government should maximize the use of domestic products and services and “should, whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.” This new EO was issued just days after the Federal Acquisition Regulatory Council (FAR Council) finalized a rule to increase the Buy American Act (BAA) domestic content requirements. With the EO directing significant changes to federal procurement practices under the Made in America Laws, we have highlighted key implications for government contractors below.

Strengthening BAA Domestic Content Requirements

The EO proposes significant changes to promote the enforcement of the BAA’s preference for domestic end products. The EO directs the FAR Council to, within 180 days, consider proposing for notice and public comment amendments to the Federal Acquisition Regulation (FAR) provisions implementing the BAA to replace the “component test” used to identify domestic end products and construction materials with a “value added” test. Under the new proposed test, domestic content would be measured by the value added to the product through U.S.-based production or U.S. job-supporting economic activity—though the EO does not explain how such value would be calculated.

Additionally, the EO states that the FAR Council should consider FAR amendments that would increase the numerical threshold for domestic content requirements for end products and construction materials and increase the price preferences for domestic end products and domestic construction materials. The FAR Council is also directed to promptly review any existing constraints on the extension of the Made in America Laws to information technology that is a commercial item and develop recommendations to lift these constraints to further the EO’s policy.

Importantly, the FAR Council recently published a final rule on January 19, 2021, which increases the BAA domestic content requirements and pricing preferences to implement President Trump’s EO 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” The final rule makes three critical changes: (1) it increases the domestic content requirement to 55% for most products and to 95% for products consisting “wholly or predominantly” of iron or steel (or a combination of both), (2) it removes the commercially available-off-the-shelf exception for products consisting “wholly or predominantly” of iron or steel (or a combination of both), and (3) it increases price preferences for domestic products to 20% for large businesses and 30% for small businesses. This final rule applies to solicitations issued on or after February 22, 2021.

Though Biden’s EO does not invalidate this final rule, it remains to be seen whether these changes will be kept as is or further modified as a result of the new EO.

Increasing Scrutiny of Requests for Waivers of Made in America Laws

Next, Biden’s EO indicates that it may become harder to obtain a waiver of Made in American Laws in the future. The EO directs the Director of the Office of Management and Budget to establish a Made in America Office, headed by a Made in America Director. Before an agency grants a waiver, and unless the OMB Director provides otherwise, the agency will be required to provide the Made in America Director with a description of its proposed waiver and a detailed justification for the use of goods, products, or materials that have not been mined, produced, or manufactured in the U.S. The Made in America Director will review all proposed agency waivers and make a determination as to whether the waiver is justified. Any disagreements between the Director and the agency would be resolved through administrative procedures. Additionally, in order to increase transparency, the General Services Administration is to develop a public website that includes information on proposed waivers and whether those waivers are granted.

Assisting Contractors with Supplier Scouting

The EO also directs agencies to take action to identify suppliers of American-made products, which may be helpful to prime contractors looking for domestic sources for their supply chains. Pursuant to the EO, agencies are to partner with the Hollings Manufacturing Extension Partnership to conduct supplier scouting to identify American companies that can produce goods, products, and materials in the U.S. that meet the federal government’s procurement needs.

Imposing Agency Reporting Requirements

Lastly, the EO imposes new reporting requirements on agencies. It directs federal agencies to, as soon as practicable, consider “suspending, revising, or rescinding” any agency actions that are inconsistent with the aforementioned policy and to consider any additional action necessary to enforce it. More specifically, agencies are directed to submit a report to the newly created Made in America Director within the 180-day window detailing their implementation and compliance with Made in America Laws, a description of any waivers to Made in America laws, and any recommendations on how to further effectuate the EO’s policy. Agencies are thereafter to submit biannual reports on implementation and compliance with Made in America Laws, with analysis on any applicable waivers.

The EO shows the intent of the Biden Administration to prioritize American industry, but it remains to be seen how its directives will play out among federal agencies and their procurements. Contractors subject to the BAA or other Made in America Laws should be cognizant of agency implementation of the EO.

We will continue to monitor developments as they become available. If you have questions about the EO and what it could mean for your business, please contact Jackie Unger or Anna Sullivan, the authors of this blog, or another member of PilieroMazzaGovernment Contracts Group.

 

DoD IG Report Finds $97 Million of Improper Reimbursements 

On February 26, the Department of Defense (DoD) Inspector General (IG) released an evaluation of the Defense Contract Management Agency’s (DCMA) actions taken in response to Defense Contract Audit Agency (DCAA) report findings involving two large DoD contractors. The purpose of the evaluation was to determine if actions taken by DCMA contracting officers on DCAA report findings complied with Federal Acquisition Regulation (FAR) and DCMA policy requirements. Under these regulations, contracting officers must take appropriate actions in response to findings and recommendations in DCAA reports within 12 months. Additionally, the contracting officers must provide a negotiation memorandum that explains why they did not uphold any of the DCAA findings and recommendations. The IG’s evaluation focused specifically on the actions taken in response to DCAA audit reports related to two of the largest DoD contractors.  

The IG found that in 14 out of 30 DCAA audit reports, DCMA contracting officers did not comply with FAR requirements when they settled the reports associated with the two large contractors. Specifically, they did not adequately explain why they disagreed with $97 million in questioned costs from eight DCAA audit reports. Additionally, they did not issue a notice of potential Cost Account Standards (CAS) noncompliance within 15 days, make a determination of CAS compliance, or determine the cost impact to the Government from six DCAA CAS reports. As a result, the actions of DCMA contracting officers may have led to improperly reimbursing DoD contractors up to $97 million in unallowable costs on Government contracts. Additionally, since timely action was not taken on six reports, there was a delay in the correction of CAS noncompliance and recovery of any increased costs due to the Government. 

DoD IG made five recommendations to the DCMA Director, including reviewing the contracting officers’ decision to not uphold the $97 million of questioned costs in the eight DCAA audit reports, determining whether the costs are unallowable in accordance with FAR regulations, and taking steps to settle all findings as necessary. The DCMA Director agreed with all five of the recommendations.

 

GSA BIC MAC Meeting, March 16

The Coalition will be hosting a joint IT/Services and GWAC/MAC Committee Meeting on Tuesday, March 16 at 11:00 am EST. The focus of the virtual meeting will be on GSA’s new BIC MAC contract. Jill Akridge, Director of Customer Accounts Management for the Professional Services and Human Capital Categories at GSA, will speak to members about BIC MAC acquisition strategy and request for information. GSA has also confirmed that Tiffany Hixson, Assistant Commissioner for the Professional Services and Human Capital Categories, will speak to members during the meeting.

GSA has requested that members submit any questions they have on BIC MAC before the meeting. Please send your questions to Sean Nulty at SNulty@thecgp.org by Tuesday, March 9. If you would like to attend the meeting, please RSVP to Michael Hanafin at MHanafin@thecgp.org to receive the dial-in information. 

 

Join the BIC MAC and OASIS Working Group

The Coalition has formed a new BIC MAC and OASIS Working Group. The new group will provide a forum for Coalition members to provide their feedback to GSA on the new BIC MAC contract. If you would like to join the working group, please contact Sean Nulty at SNulty@thecgp.org 

CIO-SP4 Meeting, March 17

The Coalition’s GWAC/MAC Committee will host a meeting on Wednesday, March 17 from 10:00 AM to 10:30 AM. Our guest speaker will be Brian Goodger, Acting NITAAC Director, who will discuss the upcoming RFP for the CIO-SP4 GWAC. It will be a virtual meeting. Please RSVP to Michael Hanafin at MHanafin@thecgp.org to receive the meeting credentials. If you have any questions you would like to submit to Mr. Goodger before the meeting, please send them to Sean Nulty at SNulty@thecgp.org by COB Friday, March 12. 

 

Webinar: The Latest in Cost & Pricing Issues, March 25

The Coalition is pleased to host Jason Workmaster and Liz Cappiello of Miller & Chevalier for a webinar on March 25 regarding The Latest in Cost & Pricing Issues. Topics of discussion will include DCMA’s enhanced focus on defective pricing, as well as developments regarding the use of LPTA in best value procurements.

Click here to register.

 

Webinar: Investigations, False Claims, Suspension & Debarment – What to Expect in 2021, March 30

The Coalition for Government Procurement is pleased to announce we will be hosting a two hour virtual panel discussion on March 30 with Mayer Brown regarding Investigations, False Claims, Suspension & Debarment – What to Expect in 2021.

The scale of government spending for pandemic relief and stimulus programs is unprecedented. Multiple new oversight and investigative bodies have been established, including the Special Inspector General for Pandemic Relief. DOJ has made it clear that Pandemic related fraud is its top priority. Qui Tam plaintiffs’ counsel are geared up and looking for new whistleblower cases.

This webinar will provide insights from attorneys experienced in investigating and prosecuting fraud in government programs and also defending companies in investigations, civil fraud and criminal fraud litigation, and suspension/debarment actions. They will discuss how these investigations work, what types of issues head the list, steps companies can take now to protect themselves. The panelists include the former Chief Investigative Counsel for the TARP bailout and leading prosecutor in securities fraud cases, a former senior executive AUSA who focuses on Cyber fraud and Congressional investigations, and a team of lawyers who advise and companies participating in federal programs and defend actions involving programs across the government.

Click here to register.