Friday Flash 04.02.21

OASIS Follow-on: Opportunities for Innovation

In anticipation of its May release of an RFI for the follow-on to the OASIS services contract, yesterday, GSA held a BIC MAC industry day. At the outset, we applaud GSA for reaching out to industry as it assesses its options for the follow-on. As GSA embarks on its market analysis, it may wish to include an analysis of alternatives. Among these alternatives, there are at least two that should be considered: “staying the course” and expanding the Schedules program.

“Staying the course,” or following the current OASIS construct for the follow-on program, recognizes the tremendous success of that program. Currently, it provides $10B in strategic mission support to customer agencies. In particular, the Department of Defense is the largest customer using OASIS for its complex professional services requirements. With separate contracting channels for small and other than small businesses, the program provides for focused acquisition targeted to firms that underwent rigorous competition for the opportunity to provide their services to agencies. Any need for procedural challenges under the program was not apparent, but if it existed, then consideration should be given to whether it can be addressed in modifying the OASIS construct for the follow-on. In sum, this successful approach should not be overlooked without careful consideration.

Regarding expanding the Schedules, as contract holders know, currently, the Schedules do not provide for cost reimbursement contracting. That reality, however, does not mean that the option to provide for such contracting does not exist. GSA has an opportunity to address this capability on schedule, and, under the circumstances, there is ample justification to do so. 

To begin with, the infrastructure and resources are in place. Adding these types of contracts would not require the agency to “reinvent the wheel” with a new process and resources. In addition, the program fills critical agency and policy needs. The Schedules served as a critical acquisition channel as the nation faced the challenges of the pandemic, and the Schedules remain the single largest government contracting channel for small businesses, providing a means to nurture and grow these innovative firms.    

Coalition members appreciate GSA’s outreach to industry and methodical approach to assess the right course of action for the follow-on to the OASIS program. It is our hope that GSA considers the significant, successful tools it already has at its disposal to facilitate continued program success.

Next week’s blog will take a closer look at the interplay between these two alternatives and the opportunities for innovation. 

GAO Presses for More Urgency on Cybersecurity

On March 24, the Government Accountability Office (GAO) released a report urging the Federal Government to do more to protect the information technology supporting our nation’s critical infrastructure such as energy, transportation systems, communications, and financial services. Specifically, GAO calls on the Government to tackle four major challenges it identified in 2018.  

The first major challenge is establishing a comprehensive cybersecurity strategy and performing effective oversight. In September 2018, the Trump Administration issued a national cybersecurity strategy, but according to GAO it lacked certain details including problem definition and risk assessment. GAO suggests that the current Administration update the plan to include all the necessary characteristics or issue a new strategy.  

GAO also identified securing federal systems and information as the second key challenge (keep) for the Government. While there have been advances in securing systems, there are still several cybersecurity weaknesses because of ineffective information security programs.  

The third significant challenge is protecting cyber critical infrastructure. GAO has made almost 80 recommendations to improve infrastructure cybersecurity, but almost 50 of the recommendations have not been executed.  

The final challenge is protecting privacy and sensitive data. GAO has found several weaknesses in federal agencies’ approach to protecting sensitive data.   

The following is a summary of GAO’s recommendations to address cybersecurity governmentwide: 

  • Establishing a comprehensive cybersecurity strategy and performing effective oversight 
    • Develop and execute a more comprehensive federal strategy for national cybersecurity and global cyberspace; 
    • Mitigate global supply chain risks (e.g. installation of malicious software or hardware) 
    • Address cybersecurity workforce management challenges; and 
    • Ensure the security of emerging technologies (e.g. artificial intelligence and Internet of Things). 
  • Securing federal systems and information 
    • Improve Implementation of governmentwide cybersecurity initiatives; 
    • Address weaknesses in federal agency information security programs; and 
    • Enhance federal response to cyber incidents. 
  • Protecting cyber critical infrastructure 
    • Strengthen the federal role in protecting the cybersecurity of critical infrastructure (e.g. electricity grid and telecommunications networks). 
  • Protecting privacy and sensitive data 
    • Improve federal efforts to protect privacy and sensitive data; and 
    • Appropriately limit the collection and use of personal information and ensure that it is obtained with appropriate knowledge or consent. 

For the full report, visit www.gao.gov/products/gao-21-288 

 

White Houses Proposes to Boost Strategic National Stockpile in Infrastructure Plan

The White House announced its proposal for the estimated $2.5 trillion infrastructure plan this week.  Key to its proposal is the Administration’s plans to invest $30 billion over 4 years to protect Americans from future pandemics. These investments are to support medical countermeasures manufacturing; research and development; and related biopreparedness and biosecurity including investments to:

  • shore up our nation’s strategic national stockpile;
  • accelerate the timeline to research, develop and field tests and therapeutics for emerging and future outbreaks;
  • accelerate response time by developing prototype vaccines through Phase I and II trials, test technologies for the rapid scaling of vaccine production, and ensure sufficient production capacity in an emergency;
  • enhance U.S. infrastructure for biopreparedness and investments in biosafety and biosecurity;
  • train personnel for epidemic and pandemic response; and to
  • onshore active pharmaceutical ingredients.

According to Bloomberg Government, lawmakers on Capitol Hill are working on bipartisan legislation on pandemic preparedness.  However, a bipartisan solution will take time.

We will be sure to update members about any specific proposals for the Strategic National Stockpile and other key funding in the Infrastructure bill, or any other legislation, as it becomes available.

 

GSA Extends TAA Exception for the Schedules 

On March 29, the General Services Administration (GSA) extended the Trade Agreements and Buy American statutes non-availability determination waiver from March 31, 2021 to April 30, 2021. This waiver determines that certain supplies are not available in sufficient quantities and waives application of the Trade Agreements Act to the GSA Schedules for those supplies. This extension is to continue the response to the COVID-19 pandemic. The list of supplies includes bleach, disinfectants (including sprays and wipes), cleaners (including sanitizing surfaces and floor cleaners), and hand sanitizers. N-95 masks, which were previously included in the waiver, have been removed from this extension.  

 

VA Continues to Struggle with EHR Rollout 

According to Federal News Network, the Department of Veterans Affairs (VA) is currently reviewing the status of the electronic health record (EHR) program. The VA instituted a three month pause in the program’s implementation to complete the review. Despite the pause, VA Secretary McDonough believes that the VA will still meet the initial ten-year budget and timeline for EHR implementation.  

Secretary McDonough also stated that the VA will reevaluate the program if the review shows that the current system is not optimal for veterans or practitioners. The EHR review was prompted because the VA was seeing larger declines in productivity than expected after the transition. Lawmakers believed and McDonough agreed that practitioners should be consulted when developing requirements for the EHR.  

President Signs Paycheck Protection Program Extension 

On March 30, President Biden signed an extension for the Paycheck Protection Program (PPP), which was established last year in order to aid small businesses during the COVID-19 pandemic. The deadline to apply for a PPP loan has been extended from March 31 to May 31, 2021. The law also extended the authorization deadline for loans to June 30 in order to give the Small Business Administration (SBA) more time to process applications. As of March 28, the PPP has approved more than 8.7 million loans totaling more than $734 billion, according to data from the SBA. 

 

OPM Creating Guidance for ‘Hybrid’ Federal Workplaces 

Federal Computer Week reported that the Office of Personnel Management (OPM) is working on guidance for how agencies can implement remote and telework into their work environment at the conclusion of the pandemic. OPM plans to give agencies flexibility with the guidance instead of taking a “one-size-fits-all” approach. OPM is working with the Chief Human Capital Officers Council and academics to put together best teleworking practices for agencies. The department’s guidance will address gray areas that will arise from the new ‘hybrid’ work environment, including changes in management practices and pay. Agencies across the Government have reported valuable lessons learned and benefits through working in the remote environment, including attracting new workers. 

 

180-Day Registration Extension for Expiring Entities in SAM.gov 

In order to support implementation of the American Rescue Plan Act, the General Services Administration (GSA) announced that there will be a 180-day extension for SAM.gov registrations that have expiration dates between April 1 – September 30, 2021. GSA is working to provide relief for certain entities that are registered in beta.SAM.gov in order to do business with the government. This extension is intended as relief for companies that would be required to re-register on SAM.gov during this timeframe. This does not impact entities that are registering for the first time. Entities that have been granted the extension will receive an email from samadmin@sam.gov with the subject line “180-Day SAM.gov Extension Granted for [Entity Name/DUNS/CAGE].” New expiration dates will be included in the SAM entity management extracts and will be available through web services once records have been extended. 

 

GSA IG Recommends Changes to Furniture “Packaged Office” Program 

The General Services Administration (GSA) Inspector General (IG) published a report on the Packaged Office program, which includes Special Item Number (SIN) 33721P. The Packaged Office program provides a streamlined method for agencies to purchase total furniture solutions. The IG found that contracting officers are not seeking the most favored customer pricing on the Packaged Office program. The IG recommended that GSA remove solicitation language that does not require contractors to submit a commercial sales practices (CSP) format. 
 
The Federal Acquisition Service (FAS) Commissioner agreed with the IG’s findings and plans to implement the recommendations. As part of the remediation plan, FAS is considering using contractor teaming arrangements to support the packaged office program in the future.  
 
The full report can be accessedhere. If you have any questions or concerns on this topic, please contact Sean Nulty at snulty@thecgp.org 

 

Coalition Member Meeting with the MAS PMO 

The Coalition will hold a member meeting with Stephanie Shutt, the Director of the MAS PMO on Thursday, April 22 at 10:00 am EDT. The meeting will focus on the GSA Schedules, including Schedule pricing policies. If you have any questions for Stephanie, please email them to Sean Nulty at SNulty@thecgp.orgby Thursday, April 15. 
 
Coalition Meeting with MAS PMO 
Tuesday, April 22 at 10:00 am EDT 
Virtual meeting 
Please RSVP to Michael Hanafin atMHanafin@thecgp.orgto receive the dial-in 

Please let us know if you have any questions. 

Legal Corner: Commerce Publishes ANPRM Seeking Comment on the Licensing Process for ICTS Transactions

By 

In an Advance Notice of Proposed Rulemaking (ANPRM) published in the Federal Register on Monday, March 29, 2021, Commerce announced that it is soliciting public comment on a licensing process for companies seeking pre-clearance for information and communications technology and services (ICTS) transactions subject to Commerce’s broad new authority to block or unwind such transactions, as implemented in the interim final rule, “Securing the Information and Communications Technology and Services Supply Chain.” That interim final rule, which was published on January 19, 2021, became effective on Monday, March 22, 2021, and broadly defines transactions to include acquisition, importation, transfer, installation, dealing in or use of ICTS. We previously discussed that interim final rule here.

Commerce underscored in the ANPRM that it is only requesting comments on the licensing procedures, and is not re-opening the comment period for the Interim Final Rule nor is it extending the effective date of that rule. While Commerce had initially announced in the interim final rule that it would establish a licensing or pre-clearance process by May 19, 2021, the agency stated that it found it necessary to solicit additional public comment and, accordingly, would not meet that deadline.

Commerce specifically requests comments on the following questions:

  • Whether Commerce should model the ICTS licensing process on the notification process employed by the Committee on Foreign Investment in the United States (CFIUS) and/or the voluntary disclosure process that the Bureau of Industry and Security (BIS) uses to consider potential violations of export control laws;
  • The advantages and disadvantages of varying approaches to the pre-clearance or licensing process, for example, a regime that would require authorization prior to engaging in an ICTS transaction, to one that allow entities to seek additional certainty from Commerce that a potential ICTS transaction would not be prohibited by the process under the interim final rule;
  • Potential measures to protect the interests of small businesses in the licensing process;
  • Whether there are categories of ICTS transactions that should or should not be considered for a license and whether any categories of transactions should be prioritized for licensing;
  • Whether a license or pre-clearance should apply to more than a single ICTS transaction;
  • The categories of information that should and should not be required in the licensing process (e.g. technical, security, operational information);
  • Whether Commerce should issue decisions on a shorter timeframe if that could result in fewer licenses or pre-clearances being granted, versus a longer timeframe that may allow for a greater number of licenses or pre-clearances being issued;
  • Considerations that Commerce should assess with respect to the potential for mitigation of an ICTS transaction in the licensing process;
  • Considerations with respect to transactions that were subsequently modified after obtaining the license or other form of pre-approval;
  • Whether holders of ICTS transaction licenses be required to re-apply for new licenses versus implementing a renewal process (and the structure for renewal if Commerce takes this approach).

The issuance of the ANPRM comes on the heels of subpoenas served by Commerce on multiple Chinese-owned companies that provide ICTS services in the United States. Taken together, and combined with the fact that Commerce allowed the Interim Final Rule to go into effect last week, these actions could signal that Commerce intends to move forward with a final ICTS rule even though it was issued pursuant to an Executive Order issued by the prior administration. Many commenters to the November 2019 proposed rule and the Interim Final Rule, including the U.S. Chamber of Commerce and the Information Technology Industry Council, have emphasized the importance of licensing procedures to provide clarity to companies regarding whether they can move forward with ICTS transactions. Companies who could be subject to reviews pursuant to the ICTS Interim Final Rule should consider submitting comments to the agency to help shape the licensing process. The comment period closes on April 28, 2021, which is 30 days after the date of publication of the ANPRM.

 

Healthcare Spotlight: DHA to Complete MTF Transition by Fall 2021

An article was posted on the Military Health System website this week about plans by the Defense Health Agency (DHA) to complete its Military Treatment Facility (MTF) transition by Fall 2021. The article highlights remarks made by Dr. Brian Lein, DHA’s assistant director of Health Care Administration, at the AMSUS-SM Quarterly meeting on March 18. 

According to the article, Lein provided the following update on the MTF transition from the services to DHA, which was halted in April 2020 due to the pandemic.

  1. The first four “markets” have been successfully launched in the National Capital region, the central North Carolina region, Jackson Naval Hospital and surrounding healthcare facilities, and in the coastal Mississippi region.
  2. The next five markets to transition will be in the Tidewater region of Virginia; San Antonio, Texas; Puget Sound region in Washington state; Hawaii; and Colorado Springs. DHA began the planning for these five markets in November 2020 when they restarted the transition.
  3. Later this year, DHA will transition smaller hospitals and clinics which will be the next 11 markets. There will also be overseas markets in Europe and the IndoPacific.

DHA is required to report to Congress on its progress and, according to Dr. Lein, must “ensure that the managed care support contractor has got the capability for caring for our beneficiaries to the same quality, and to the same standard, and to the same access that was provided on the base.”  To read the full article, click here.

 

Section 889 Implementation Brings Challenges for Contractors

According to Federal News Network, the latest implementation of Section 889 of the 2019 National Defense Authorization Act (NDAA), which bans certain Chinese telecommunications and video equipment from the Federal supply chain, has caused unintended consequences due to ambiguities over what it means to “use” equipment made by the banned companies. Some agencies have interpreted the rule to include equipment that is on the networks of internet service providers, making it difficult for contractors to certify that they are in compliance. The rule allows for agencies to issue waivers in certain situations where it is not possible for companies to comply; however, the process is intensive, and the waivers are issued on a case-by-case basis. Currently, each waiver takes about four to six weeks to process.  

 

Inspectors General Using Data Analytics to Detect COVID-19 Relief Fraud 

FedScoop reported that the Pandemic Response Accountability Committee (PRAC), an oversight committee of Federal Inspectors General, is developing a data analytics center of excellence. The new Pandemic Analytics Center of Excellence will provide new tools using data analytics to detect fraud in the Paycheck Protection Program (PPP) and Economic Industry Disaster Loan (EDIL). The PRAC estimates that there has been over $84 billion of fraud through these programs, and Inspectors General have seized or returned $2.5 billion.  

 

DOJ “Strike Force” Targets Antitrust in Contracts

The Procurement Collusion Strike Force (PCSF), a strike force sponsored by the Department of Justice (DoJ), published a summary of actions during its first year of operations, and its plans for expansion. The PCSF is an interagency partnership, including DoJ and agency Inspectors General, that focuses on deterring, detecting, investigating, and prosecuting antitrust crimes in Government procurement. The PCSF established the Data Analytics Project, which will encourage the development of data analytics tools to detect collusion and bid rigging. The PCSF has also launched PCSF: Global, which aims to build connections with foreign competition authorities to address collusion for U.S. funds spent abroad.  

 

CMMC Board Names New CEO 

Fedscoop reported that Matthew Travis has been selected to serve as Chief Executive Officer (CEO) of the Cybersecurity Maturity Model Certification Accreditation Body (CMMC-AB). As CEO, Travis will be in charge of the CMMC-AB’s day-to-day operations. Travis is the former Deputy Director of the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA). He joined DHS in 2018, and worked to establish CISA within the department. He also previously served as a White House Liaison from the Office of Secretary of the Navy.  

 

FAR Council Publishes Regulatory Agenda 

On March 31, the Federal Acquisition Regulatory (FAR) Council released their semiannual regulatory agenda. The semiannual regulatory agenda includes the list of active regulatory cases and their planned milestones. 

Reverse Auction Guidance 

This proposed rule will create guidelines for the effective use of reverse auctions. It was released in December 2020, and the comment period will end in June 2021. The Coalition submitted comments on the proposed rule on February 5, 2021. 

Increasing Task Order Level Competition 

The proposed rule will create an exception to the requirement to consider price as an evaluation factor for the award of indefinite delivery/indefinite quantity (IDIQ) contracts. The rule would apply to the Schedules program. The FAR Council expects a proposed rule to be published in May 2021.  

Small Business Program Amendments 

This proposed rule will include changes to the timing of size status determination for multiple-award contracts when price is not determined at the contract level. The proposed rule is expected to be released in March 2021.  

Section 889(a)(1)(B) 

The FAR council will release the final rule in May 2021 for the Prohibition on Contracting with Entities Using Certain Telecommunications and Video Surveillance Services or Equipment. This final rule will be the implementation of Section 889(a)(1)(B) of the 2019 National Defense Authorization Act (NDAA). The Coalition submitted comments on the proposed rule on September 11, 2020. See all of the upcoming regulatory items here.   

 

April 8 Webinar: CIO-SP4: Is Your Business Equipped to Compete? 

The Coalition is pleased to host Cy Alba and Meghan Leemon of PilieroMazza’s Government Contracts Group on March 29 as they dissect the potential impacts of CIO-SP4 for the government contracting community. CIO-SP4 may be one of the most significant opportunities for both small and large government contractors, particularly those in the healthcare IT space.

Key takeaways include:

  • Key requirements and differences from the draft RFP;
  • CTAs under CIO-SP4;
  • Past performance use for teams, subs, and JVs;
  • Off-ramp provisions restricting growth of M&A activity; and
  • Moving from a CIO-SP4 small to a large CIO-SP4 and back again.

Click here to register.

 

April 22 Webinar: Procurement Collusion Strike Force (PCSF): How You Can Reduce Your Antitrust Risk

The Coalition is pleased to host an upcoming webinar on April 22 titled Procurement Collusion Strike Force (PCSF): How You Can Reduce Your Antitrust Risk.  Our presenter will be recent DOJ Antitrust Division prosecutor and original member of the PCSF, Justin P. Murphy, who is currently a Partner at McDermott Will & Emery LLP.

With a 10% budget increase for FY2021 and proposed legislation that would increase the Antitrust Division’s budget by $300 million, antitrust criminal enforcement is poised to accelerate. Historically, cartel enforcement has increased following economic downturns and substantial federal stimulus packages.  For example, after the 2008 financial crash and the 2009 Recovery Act, DOJ filed 60% more criminal cases than in prior years.  We expect this trend to continue in the wake of the unprecedented government stimulus packages passed in 2020 and 2021.  Beyond the increased resources, the Antitrust Division has stepped up their criminal enforcement program with the creation of the Procurement Collusion Strike Force (PCSF), the expansion of criminal prosecutions into labor markets, and new potential benefits for corporate entities with compliance programs addressing antitrust violations.

In this webinar, Justin will be addressing the following topics:

  • Criminal antitrust violations, including case examples of price fixing, bid rigging, market/customer allocation, and recent investigations and prosecutions into labor markets;
  • The expected industry focus of the Biden Administration;
  • The PCSF and “red flags of collusion”;
  • The Antitrust Division’s new Corporate Compliance Guidance which for the first time permits credit for compliance programs at the charging recommendation stage and could result in a non-prosecution or deferred prosecution agreement; and
  • What companies can do to reduce their antitrust risk.

Click here to register. 

 

AFCEA Bethesda’s 2021 Monthly Breakfast Webinar 

The Coalition is proud to sponsor AFCEA Bethesda’s 2021 Monthly Breakfast Webinar Series. Join AFCEA Bethesda on Wednesday, April 14 at 8 AM EDT for the first Breakfast Series webinar in the Data chapter. Federal leaders will discuss how agencies can use AI/ML at scale to accelerate decision-making while improving the effectiveness and efficiency of government services. Attendees will have the opportunity to engage with government speakers and industry leaders during the video networking session. Coalition members who are interested in attending can register here.