With 2022 nearing its midway point, the Coalition for Government Procurement is pleased to share exciting events, news, and developments coming soon for our members. Last week’s blog highlighted a jam-packed schedule of upcoming committee meetings and webinars in May and June, all leading up to our annual Spring Training Conference – The Federal Customer Experience on June 15-16 at the Fairview Park Marriott in Falls Church, Virginia. This two-day conference features guest speakers and panelists from Federal agencies, such as the Department of Veterans Affairs, the Department of Human and Health Services, the General Services Administration, and the Department of Defense, as well as multiple industry experts. Day one of the conference will have a healthcare focus, while day two will cover Governmentwide topics.
The conference offers both in-person and virtual attendance, and we encourage you to register for this highly informative training event if you have not yet done so. The format will offer both in-person and virtual attendance. For those needing overnight lodging, rooms may be booked in the Coalition’s room block at the Fairview Park Marriott by clicking here.
Sponsorship opportunities for the Spring Training Conference remain available. At this time, we acknowledge and thank sponsors already committed. Our day one sponsors include Title Sponsor, AvKARE, and Gold Sponsor and Lunch Sponsor, Medical Place. Our day two sponsors include SAIC and The Gormley Group as Silver Sponsors. Please contact Matt Cahill with sponsorship questions or commitments at firstname.lastname@example.org.
Excellence in Partnership Awards
During the Spring Training Conference, we will take time to honor the recipients of the 2021 Excellence in Partnership (EIP) awards. The EIP Awards acknowledge those in the contracting community from both Government and industry who make significant contributions to the acquisition system. Thanks to the nominations from our members, we have the opportunity to recognize highly deserving individuals for their work in “advancing common sense in Government procurement.” The 2021 EIP Awards feature the return of the Coalition’s highest honor, The Common Sense in Government Procurement Award, which was last awarded in 2016. This honor will be presented to an individual who has dedicated their career to improving the operation and management of the Federal acquisition system over the years to ensure that it delivers best value for agencies and citizens. We hope that you will join us in congratulating the 2021 EIP Award honorees at the conference!
2021 Year in Review
We are happy to share with you that the Coalition’s 2021 Year in Review is now available! The Year in Review highlights the Coalition’s priorities, goals, activities, and accomplishments in a calendar year. One of the Coalition’s top priorities for 2021 was educating members on changing acquisition policies while welcoming a new Administration into office. We were able to deliver the latest information on the transition through our continued partnerships with Government agencies, in committee meetings, and through the 2021 Spring Training Conference – The Biden Administration’s Priorities and the Role of Acquisition. We also worked to provide members with timely information about other important as, such as cybersecurity, supply chain sourcing, GSA programs, and healthcare for our veterans and service members. A highlight of 2021 for the Coalition was hosting the Joseph P. Caggiano Memorial Golf Tournament at the Whiskey Creek Golf Club in August. It was a pleasure to see so many familiar faces and enjoy a nice day out on the course, as well as a reception in the clubhouse to wrap up the day. So too, it was gratifying to resume the contribution of tournament proceeds to the Coalition for Government Procurement Endowed Scholarship Fund at The George Washington University (more on this worthy fundraiser below).
A New Small Business Feature in the Friday Flash
As you know, each week, we deliver the Friday Flash newsletter to our members. Through the Friday Flash, we aim to give a comprehensive look into the most recent developments in Government procurement and policy that affect organizations across a number of sectors. We continuously seek effective ways to include the most valuable resources that will be of interest to the readers of the Friday Flash, and for that reason, we are excited to announce a new column in the newsletter, entitled “A View from Main Street.” This column will focus on issues related to small business programs and policies. We hope that it will be not only of high interest to our small business members, but also of value to companies of all sizes that are looking to learn more about these policies and how to team with small businesses to support Federal missions. Please be on the lookout for this feature in upcoming editions of the Friday Flash.
The 2022 Federal Market Report
Another resource that we deliver annually to Coalition members is the Federal Market Report. This report provides insights into contract compliance, as well as in-depth trends on the Schedule Program, blanket purchase agreements, Governmentwide acquisition vehicles, the Federal healthcare market, and more. The Fiscal Year 2021 Federal Market Report will be available to our members in June and will include a specific section on Federal contracts supporting the Federal Government’s efforts to combat the COVID-19 pandemic. We highly encourage you to take advantage of this resource once it is available. In addition, please feel free to reach out to us with topic ideas for future reports.
Registration for the Joseph P. Caggiano Memorial Golf Tournament
Lastly, as we look forward to the Summer, the Coalition already has begun planning for the annual Joseph P. Caggiano Memorial Golf Tournament. For several years, the Coalition has had the privilege of hosting this tournament which honors the life of our beloved friend and colleague, Joe Caggiano, a 23-year Federal contracting expert and a distinguished Navy veteran. As a result of the generous support from sponsors and participants of the tournament, we have raised over $135,000 for The Coalition for Government Procurement Endowed Scholarship Fund at The George Washington University. This scholarship provides financial support to veterans concentrating their studies in the field of U.S. Government Procurement while pursuing a law or master’s degree at The George Washington University. We look forward to having you join us at the 2022 tournament!
On May 6, the General Services Administration (GSA) announced some of the key themes identified in industry’s comments in response to their Commercial Platforms Initiative Request for Information (RFI) released in March. The RFI asked respondents a series of questions about some potential requirements for the next Commercial Platforms Initiative contract and for industry’s capabilities in relation to certain functions and features that have been requested by Federal users. The following are some of GSA’s key takeaways from industry’s responses:
- Industry commercial practices are well aligned with identified program areas. According to GSA, “the majority of the responses received from industry support the notion that requirements and requested features as outlined are aligned with existing commercial practices and can be met across the online e-commerce landscape.”
- Industry routinely provides platform capabilities that exceed government requirements. GSA also reported that industry is able to meet Federal buyers’ expectations for certain commercially available features like “product descriptions, images, and product availability; timely product delivery with real-time purchase tracking,” etc.
- Industry shared a willingness to advance Administration priorities. Industry respondents are interested in supporting the Administration’s priorities and recent Executive Orders. However, there may be some variation amongst vendors in terms of how much configuration may be required for their platforms to meet certain requirements.
- Industry expertise is strong. Based on the RFI responses, GSA believes that industry is capable of delivering a modern, streamlined and compliant e-commerce platform that could manage open market purchases. They also shared industry’s request that GSA not over-prescribe the desired features in its requirements, and that vendors would prefer more flexibility in meeting Federal purchasers desired outcomes.
GSA will continue to review feedback received on all platforms to support the growth of the Commercial Platforms program. Industry will be able to provide more feedback through upcoming outreach and one– on one sessions that GSA plans to host. Updates on the program will be shared on the Commercial Platforms interact page.
VA Launches “Pathfinder” Website to Streamline Contracting Process
Federal News Network reported this week that the Department of Veterans Affairs (VA) has a new website, called Pathfinder, that will serve as a single point of entry for those seeking to do business with the VA. This website will both help new vendors get certified through SAM.gov to work with the VA and also pre-filter available contract opportunities to show only those with the VA. In addition to assisting existing contractors, Pathfinder allows companies that are new to the VA to submit their innovative ideas to the VA for potential co-development. The new website may have a banner denoting that it is a demo, but vendors can begin using it. According to VA Chief Acquisition Officer, Michael Parrish, in the future the new tool will include a forecast of upcoming solicitations and an outreach feature where vendors will be guaranteed an answer from the VA within seven days. The new website is part of the VA’s greater efforts to streamline acquisition efforts. To access the new site, click here.
After two years of virtual meetings and conferences, we are thrilled to announce our 2022 Spring Training Conference: The Federal Customer Experience, taking place at the Fairview Park Marriott in Falls Church, VA on June 15-16 (Summer isn’t technically until June 21!). The first day will be dedicated to healthcare topics and issues, while the second day will have a governmentwide focus. We encourage you to dust off your dress shoes and join us in-person for this two-day conference where we will hear from a multitude of government speakers and enjoy the comradery we have so deeply missed over the years. That being said, we recognize and appreciate everyone’s unique personal perspectives as we navigate the return of in-person events and are happy to share that we will offer a hybrid attendance option for those who still wish to participate virtually!
Day one (Healthcare Focus) will kick off with a keynote address, where we have invited Guy Kiyokawa, Assistant Secretary for Enterprise Integration, U.S. Department of Veterans Affairs (VA), to provide opening remarks. We will then move to several panel discussions, including Customer Experience: VA Procurement & Logistics; Cybersecurity Certifications and How They’re Evolving to Meet Future Threats; and Medical Supply Chain Resiliency. We have invited Dawn O’Connell, Assistant Secretary for Preparedness and Response (ASPR), HHS, to provide a lunch time keynote, and the day will conclude with Customer Experience Breakout Sessions, including DLA Medical/Surgical Prime Vendor (MSPV) Program and ECAT; VA Medical/Surgical Prime Vendor; VA Medical/Surgical Supply BPAs; Update on Drug Pricing Oversight; and VA Non-expendable (NX) Equipment.
Day two (Governmentwide Focus) will follow a similar format as we have invited Robin Carnahan, GSA Administrator, to serve as our opening keynote. Panel discussions will include FAS’s Role in Meeting Agency Mission Requirements; Cyber Security Requirements; Buy American and Supply Chain Resilience; and OTA’s. We have invited John Tenaglia, Director, Defense Pricing and Contracting, as our lunch time keynote, and will wrap up the day with Customer Experience Breakout Sessions, including E-Commerce Platforms and FEDMALL; Cloud Marketplace; Furniture; Professional Services Category – GSA (Services MAC and Schedules); GWAC/MAC/IT Schedules; Assisted Acquisition Services; GSA Systems; and Global Supply and Services Breakout Session.
We are equally excited to end day two with a networking reception as there is a lot of catching up to do! Please help us gain a firm understanding of interest and participation in our 2022 Spring Training Conference: The Federal Customer Experience by registering today! For food and beverage purposes, it’s vital you indicate on your registration whether you plan to attend in-person or virtually (and which days if attending in-person). Please note, after answering the registration questions, you will need to click the “Save Responses” button before clicking “Complete Registration.” The registration fee includes access to both days, and all sessions will be recorded and available to all registrants to listen to at their convenience if there are any conflicts.
Lastly, calling all sponsors! Review exciting sponsorship opportunities and benefits for each day HERE! Please contact Matt Cahill at 202-315-1054 or email@example.com for commitments or questions. We truly appreciate your support and can’t wait to see you in June!
Check Out the Coalition’s 2021 Year in Review
Each year, The Coalition for Government Procurement publishes a review of its activities from the previous year for our members. The 2021 Year in Review is now available, and you will see that we had a productive and successful 2021!
Given that 2021 was the first year of the Biden Administration, one of our key priorities was to educate members on acquisition policy changes and leadership within the Federal government. We were able to highlight these developments throughout the year through member committee meetings, webinars, and the Spring and Fall Training Conferences. Other areas of focus in 2021 included:
- Updating members on supply chain sourcing requirements, such as changes to the Buy American Act and other potential domestic sourcing preferences
- Providing members with information on cybersecurity requirements, such as Cybersecurity Maturity Model Certification;
- Delivering feedback to GSA on the Services MAC, IT GWACs, and cloud computing; and
- Continuing to support improved healthcare for veterans and military service members through partnerships with VA, DHA, and DLA.
While we held most of our events virtually due to the pandemic, we were able to host our annual Joseph P. Caggiano Memorial Golf Tournament in person. It was wonderful to see everyone!
We would like to thank all the members for their support in 2021! To access the Coalition’s 2021 Year in Review, click here.
Earlier this week, watchdogs from the Department of Defense (DoD) and the VA released a report stating that the new electronic health programs are not achieving the levels of interoperability that were promised. DoD and VA have separate contracts to integrate the Cerner Millennium electronic health care system to cover more than 18 million patients. The two systems are designed to work together as one health record system capable of effectively sharing patient health care data between DoD and VA. This goal was not just an administrative directive, but also a mandate from Congress per the 2014 National Defense Authorization Act (NDAA).
According to the report, DOD and VA fell short in moving existing patient information to the new system and in developing an interface to transition data from legacy healthcare systems to the Cerner system. While some health information such as vaccination records, health conditions, and allergies were able to be transferred, a large amount of info such as patient labs, clinical notes, and some diagnostic information was left out of the initial deployment of the system. According to the report, neither agency set up interfaces for capturing data from existing healthcare systems into the new electronic health record systems. This will require both agencies to come up with new interfaces to capture this information properly. The report also noted inconsistencies in clinical user privileges which leaves patient data at risk. The report recommends more oversight from the Federal Electronic Health Record Modernization (FEHRM) Program Office in ensuring a unified direction from both agencies to ensure interoperability.
FCW reported that Federal agencies are looking for additional contracting, acquisition, and tech collaboration opportunities with Historically Black Colleges and Universities (HBCUs), Tribal Colleges and Universities (TCUs), and other minority-serving institutions. These collaborations would serve as an important step in increasing equity across these fields. The Federal Government released its first set of equity action plans in April, which included more than 300 different strategies aimed at improving diversity, equity, inclusion, and accessibility. These plans stem from the June 2021 Executive Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce. The strategies involve working with these institutions as key strategic partners and creating long-term impacts in these communities.
For example, the Department of Defense (DoD) is working with HBCUs to strengthen its tech workforce. As part of the 2020 NDAA, DoD examined the best ways to increase HBCUs’ ability to compete for research and development grants as well as other contracts. The Federal Government’s goal for agencies is to produce measurable results from their equity plans.
Many agencies included strategic investments in HBCUs, TCUs, and other minority-serving institutions as part of their plans. The U.S. Space Force, Labor Department, Office of Personnel Management, and National Institutes of Technology (NIST) all are working on plans to increase participation across these institutions through apprenticeship and internship programs. The Department of Commerce’s equity plan included $268 million in grant funding to HBCUs and other minority-serving institutions through the National Telecommunications and Information Administration as part of a pilot program known as Connecting Minority Communities. The Small Business Administration plans to onboard new Small Business Development Center service centers that will support historically underserved communities. These centers will also collaborate with minority-serving institutions.
Many agencies, including the Department of Agriculture and GSA, also included work with small, disadvantaged businesses (SDBs) in their equity plans. The Agriculture Department intends to have a 21.5 percent contracting goal for SBDs, and will also increase access to capital for minority-owned businesses. GSA plans to utilize its tools, such as the Forecast of Contracting Opportunities Tool, to help SDBs in the Federal marketplace. GSA also recently launched Buy.GSA.gov which will help newcomers and small businesses receive Federal contracting opportunities. Finally, the Biden Administration has established the Equitable Data Working Group to measure the progress of agencies’ implementation of their plans. The working group will use data collection and reporting for evaluation. More details about the working group and its initial recommendations will be announced in the coming weeks.
On May 5, GSA’s Office of Professional Services and Human Capital (PSHC) posted its fourth program update on Interact related to a future draft request for proposal (RFP) for the Services MAC contract. The update includes a draft solicitation of submission instructions and evaluation criteria for the Total Small Business set-aside category. Also included in the update is a Sample Qualifications Matrix for the Technical & Engineering domain. Attached to the notice is an updated industry Q&A on Services MAC. GSA plans to solicit and award separate indefinite-quantity indefinite-delivery (IDIQ) contracts under the following categories:
- 8(a) Small Business
- HUBZone Small Business
- Service-Disabled Veteran-Owned Small Business
- Total Small Business
- Woman-Owned Small Business
This update only addresses the requirements of the Total Small Business set-aside, however, GSA stated that the remaining IDIQs should have very similar criteria with possible variations for different socio-economic set-asides or unrestricted vehicles.
General feedback related to this update can be sent to PSHCfirstname.lastname@example.org. Previous updates can be found here:
- Program Update 1: Draft RFP Section C (December 14, 2021)
- Program Update 2: Small Business Strategy (February 28, 2021)
- Program Update 3: Evaluation Strategy Overview (March 16, 2022)
Authored by Paul Freeman, Elizabeth Dawson, and Issac Schabes, Partner, Counsel and Associate at Crowell & Moring LLP
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.
In another significant development for federal contractors watching as the Federal Government seeks to broaden its effort to leverage procurement policy to address climate change, the FAR Council, on April 13, 2022, agreed to move forward with drafting a proposed FAR amendment that could mandate public disclosure of greenhouse gas (GHG) emissions and climate related financial risks for major federal contractors.
This action is in accordance with Executive Order 14030, Climate-Related Financial Risk, which directed the FAR Council to consider mandating disclosures of GHG emissions and climate related financial risks for major federal contractors, and follows the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) October 2021 Advance Notice of Proposed Rulemaking seeking public comment on a variety of GHG emissions and climate related financial risks topics (discussed here). This development is notable given that EO 14030 only instructed the FAR Council to “consider” amending the FAR but did not otherwise mandate the drafting of climate disclosure amendments.
This development is also consistent with and builds upon other recent activity from a number of federal agencies, including the SEC, which in March proposed a sweeping climate-related disclosure rule for regulated entities covering not only financial risks posed to the entities by climate change but also the GHG emissions of the entity itself. Similarly, on April 4, 2022, the FDIC released a draft statement of principles regarding how large financial institutions can manage climate-related risk.
Authored by Jason Workmaster, Alex Sarria, Elizabeth Cappiello and Alexandra Prime, Attorneys at Miller & Chevalier
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.
On April 18, 2022, the Office of Management and Budget (OMB) issued preliminary guidance (the Guidance) to federal agencies on the implementation of new “Buy America” domestic preference requirements enacted recently in the $1.2 trillion Infrastructure Investment and Jobs Act (IIJA), Pub. L. No. 117-58, §§ 70901-52 (Nov. 15, 2021) (the Act). The Guidance is a must-read for any company looking to compete for federally funded infrastructure projects that are subject to Buy America requirements. Background: President Biden’s Made in America Initiative
In January 2021, President Biden signed Executive Order 14005, Ensuring the Future is Made in All of America by All of America’s Workers (the Order, discussed here), which aimed “to maximize the use of goods, products, and materials produced in, and services offered in, the United States.” The Order launched a government-wide initiative that soon produced significant changes to the Federal Acquisition Regulation (FAR) provisions implementing the Buy American Act in connection with federal procurement contracts (discussed here and here). The Order also was the blueprint for new IIJA Buy America provisions applicable to non-procurement, federally funded infrastructure projects administered, for example, by the Department of Transportation (DOT). The IIJA’s Buy America provisions (1) require all iron or steel products, manufactured products, and construction materials used in a federally funded infrastructure project to be “produced in the United States,” and (2) establish the Made in America Office (MIAO) within OMB to manage Buy America waiver requests and enforce Made in America laws (discussed here).Summary of OMB’s Initial Buy America Guidance
The Guidance provides preliminary instruction on two subjects that are critical for any company looking to compete for federal infrastructure opportunities subject to the current panoply of Buy America requirements enforced by federal agencies:
- It describes the Buy America manufacturing and domestic content standards that will apply to iron, steel, manufactured products, and construction materials used in federal infrastructure projects
- It identifies the bases for obtaining Buy America waivers in connection with such projects
Buy America Requirements in Federal Financial Assistance Programs
Scope of the Act’s Buy America Requirements
The Guidance reiterates that the new Buy America requirements stated in the IIJA will apply to all federal financial assistance programs (as defined in 2 CFR § 200.1) — whether or not funded through IIJA — when funds are appropriated or otherwise made available and used for an infrastructure project. This approach is broader than those adopted in previous infrastructure laws and makes the IIJA’s Buy America requirements applicable to a far wider range of federally funded infrastructure projects. Specifically, the Act’s definition of “infrastructure” encompasses all public infrastructure projects including at a minimum: the structures, facilities, and equipment for U.S. roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property. The Guidance notes that agencies should also treat “structures, facilities, and equipment that generate, transport, and distribute energy – including electric vehicle (EV) charging – as infrastructure.” According to the Guidance, when determining if a particular project fits the definition of “infrastructure,” agencies should consider whether the project will “serve a public function, including whether the project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation, as opposed to a project that is privately owned and not open to the public.” Projects with these characteristics are more likely to qualify as an “infrastructure” project under the Act. In the Guidance, OMB clarifies that if no funds from a particular award will be used for infrastructure, the Act’s Buy America requirements do not apply to the award. Similarly, under a covered program, the Buy America requirements do not apply to a non-infrastructure project, even if the award also includes a covered project. However, “a Buy America preference applies to an entire infrastructure project even if it is funded by both Federal and non-Federal funds under one or more awards.” The Guidance also explains that the Act’s Buy America requirements only apply to materials that are “consumed in, incorporated into, or affixed to” the infrastructure project, not to tools, equipment, or supplies used for the completion of the infrastructure project. Similarly, the requirements do not apply to “equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of or permanently affixed to the structure.” OMB explains that an article, material, or supply should only be classified into one of the Buy America categories: (1) iron or steel, (2) manufactured products, or (3) construction material. On covered infrastructure projects, the Act requires each such item to be “produced in the United States.” The phrase “produced in the United States” is defined as follows in each category:
- Iron and Steel: All iron and steel manufacturing processes, from the initial melting stage through the application of coatings, must occur in the U.S. Agencies are to apply this standard only to goods that “are predominantly iron or steel, unless another standard applies under law or regulation.”
- Manufactured Products: The product must be: (1) manufactured in the U.S., and (2) the cost of the components of the manufactured product that are mined, produced, or manufactured in the U.S. must be greater than 55 percent of the total cost of all components in the manufactured product, unless another standard for determining the minimum amount of domestic content has been established under applicable law or regulation.
- Construction Materials: All manufacturing processes for the construction material must occur in the U.S.
The foregoing Buy America requirements go into effect on May 14, 2022, which means that no later than that day, all applicable programs must comply with the Act (subject to agency-specific determinations to impose more restrictive requirements, as discussed below). Agencies can comply with the Act by incorporating the Buy America preference in the terms and conditions of each award of a covered infrastructure project. This applies to new awards as well as renewal awards obligating additional funds to existing funds that are executed on or after May 14, 2022. Agencies are therefore required to include a Buy America preference in awards issued on or after May 14, 2022, “even if Notices of Funding Opportunities for those awards did not include a Buy America preference.” However, agencies may consider a waiver to avoid undue increases in the time and cost of a project when the Notice of Funding Opportunities did not include the Buy America preference or if the budget for purchase of covered materials has already been agreed upon. Consistent with the IIJA, and to avoid unnecessary disruptions to programs that already meet or exceed the Act’s requirements, OMB advises agencies to consider whether their current domestic content requirements meet the standards of the Act and keep in place all policies and provisions that meet or exceed the standards required by the Act. For those programs that do not fully comply with the Act, however, the Guidance directs agencies to make necessary changes to come into compliance with all parts of the Buy America requirements of the Act. For example, if a program has standards in place that meet the requirements for iron and steel, it is required only to adopt new standards for manufactured products and construction materials. Issuing Buy America Waivers
Most of the Guidance focuses on the Buy America waiver process. Pursuant to the Act, the head of a federal agency may waive the application of a Buy America requirement, if they find that:
- Applying the domestic content procurement preference would be inconsistent with the public interest (a “public interest waiver”)
- Types of iron, steel, manufactured products, or construction materials are not produced in the U.S. in sufficient and reasonably available quantities or of a satisfactory quality (a “nonavailability waiver”)
- The inclusion of iron, steel, manufactured products, or construction materials produced in the U.S. will increase the cost of the overall project by more than 25 percent (an “unreasonable cost waiver”)
Prior to issuing a waiver, agencies must publicize on their website any proposed waivers they intend to grant and allow time for public comment. Such waivers also must be posted to a “centralized waiver transparency website” managed by the General Services Administration (GSA) no later than November 15, 2022. According to the Guidance, agencies “should” notify the MIAO in advance of posting any proposed award or project-level waiver and “must” consult with the MIAO for proposed waivers “with broader applicability (such as a general applicability waiver) before posting them for public comment.” To avoid duplicative waiver requests from entities that receive funding from multiple federal agencies for a single infrastructure project, the agency contributing the greatest amount of funds to the project “should be considered the ‘Cognizant Agency for Made in America’ and should take responsibility for coordinating with other Federal agencies.” Waiver Principles and Criteria Under the Guidance, agencies must apply standard criteria in determining whether to grant a waiver. Agencies should review existing criteria to ensure that it is consistent with the requirements of the Act and update or establish criteria as necessary. OMB advises that federal agencies should consider the following minimum requirements in issuing Buy America waivers.
- Is the waiver time-limited? This type of waiver may be appropriate when an item is “non-available” but is widely used in projects funded by a particular program’s awards. When issuing a time-limited waiver, the agency should identify a short, definite time frame designed to ensure that when domestic supply becomes available, domestic producers will have prompt access to the market created by the program.
- Is the waiver targeted? Waivers that are not limited to a particular project should apply only to the item, product, or material necessary. Broader waivers will receive greater scrutiny from MIAO.
- Is the waiver conditional? Federal agencies are encouraged to issue waivers with specific conditions that support the policies of the Act and the Order.
OMB provides guidance to agencies on the review and acceptance of waiver requests for each of the three categories of waivers listed in the Act:
- Nonavailability Waiver: Agencies will consider whether the recipient has performed thorough market research and considered qualifying alternate items, products, or materials. Waivers must describe the market research activities and methods to identify domestically manufactured items capable of satisfying the requirement, including the timing of the research and conclusions reached on the availability of sources. Agencies may assist recipients in conducting the required market research.
- Unreasonable Cost Waiver: Agencies will ensure that the recipient has provided adequate documentation that no domestic alternatives are available within the cost parameter. Agencies may assist recipients in gathering this documentation. The waiver justification must include a comparison of the cost of the domestic product to the cost of the foreign product or a comparison of the overall cost of the project with domestic products to the over cost of the project with foreign-origin products.
- Public Interest Waiver: OMB advises that these waivers will be used judiciously and construed to ensure maximum utilization of goods, products, and materials produced in the U.S. The Guidance provides examples of types of public interest waivers, agencies should consider issuing, including: de minimis, small grants, minor components, adjustment period, and international trade obligation.
General Applicability Waivers The Guidance provides information about the use of “general applicability waivers.” A “general applicability waiver” applies broadly across multiple awards. The waiver can be “product-specific,” applying only to a product or category of products, or “non-product-specific,” meaning it will apply to all “manufactured products.” General waivers should be issued only when necessary to advance an agency’s missions and goals, consistent with the IIJA, the Order, and the Guidance. For example, a general applicability waiver may be used when there are well-established domestic sourcing challenges in a particular industry or for a particular requirement. When reviewing a proposed general applicability waiver, the head of a federal agency must publish in the Federal Register (1) a notice that describes the justification for the waiver and requests public comments on the continued need for the general applicability waiver at least 30 days, and (2) a determination on whether to continue or discontinue the waiver considering the comments received. This publishing requirement will not apply for a period of five years to product-specific waivers that were issued more than 180 days before the Act was passed. For non-product-specific waivers, agencies must publish the notice in the Federal Register no later than November 15, 2022. General applicability waivers, including public interest waivers, will be re-reviewed every five years by the awarding agency. Preliminary Guidance for Construction Materials
OMB also issued preliminary and non-binding guidance on the standards that define the term “all manufacturing processes” for construction materials. Pending issuance of OMB final standards, agencies are directed to consider “all manufacturing processes” for construction materials to include at least the final manufacturing process and the immediately preceding manufacturing stage for the construction material. OMB is seeking additional input from industry before issuing further guidance on this subject.
OMB’s initial Guidance provides a solid roadmap for how the new Buy America requirements will be applied to federally funded infrastructure projects. Still, several questions remain. First, it is still unclear how individual agencies may change (or not change) their existing domestic content requirements to align with the standards of the Act. The IIJA only requires agencies to meet the minimum Buy America standards stated in the Act and thus individual agencies can maintain or create new policies and provisions that require covered products or materials to exceed those IIJA standards. Second, the Guidance does not mention an escalation of the domestic content threshold from 55 percent for manufactured products, like the scheduled escalation provision contained in the recently finalized Buy American Act FAR provisions. Still, it seems likely OMB will provide additional guidance on this subject in the future given the similarities between the Buy American provisions in the FAR and the Buy America test for manufactured products in the IIJA. Also, even if OMB does not issue general guidance in this regard, it appears individual agencies are free to adopt their own scheduled increases, provided those increases meet or exceed the IIJA minimum standards.Third, the impact of the IIJA on the frequency and terms of Buy America waivers remains to be seen. Details and trends surely will emerge over time, however, and contractors will soon have access to agency and GSA websites that will allow them to track how Buy America waivers are being processed.
We will continue to monitor and report on the continued implementation of the IIJA’s Buy America requirements. In the meantime, if you have any questions about the IIJA provisions or Buy America in general, please contact one of the Miller & Chevalier attorneys listed below:Alex L. Sarria, email@example.com, 202-626-5822Jason N. Workmaster, firstname.lastname@example.org, 202-626-5893Elizabeth J. Cappiello, email@example.com, 202-626-5975Alexandra S. Prime, firstname.lastname@example.org, 202-626-5940
NIST Guidance Points Agencies to FedRAMP for Supply Chain Security
FCW reported that revised guidance issued by the National Institutes of Standards and Technology (NIST) urges agencies that are looking to buy and implement software to utilize GSA’s Office of Federal Risk and Authorization Management Program (FEDRAMP) for supply chain security when dealing with cloud service providers. FedRAMP uses third-party certification of cloud providers’ security measures and is required for agencies who want to purchase cloud services. According to the Government Accountability Office, however, compliance is not fully monitored or enforced by the Office of Management and Budget. The guidance states that “when applying this publication to cloud service providers, Federal agencies should first use FEDRAMP cloud services security guidelines and then apply this document for those processes and controls that are not addressed by FedRAMP.” The purpose of the guidance is to help organizations develop cybersecurity supply chain risk considerations and requirements into their acquisition processes. The guidance highlights the importance of monitoring for potential risks and vulnerabilities at all levels of the acquisition process since threats can arise at any time. This approach was implemented by the current Administration after the SolarWinds attack. NIST expects to release more guidance focused on foundational elements in the future.
GAO: DOL Must Work on Enforcement of SCA Violations
On May 5, the Government Accountability Office (GAO) testified before the Senate Committee on the Budget about how the Department of Labor (DOL) could improve enforcement of the Service Contract Act (SCA). GAO testified that DOL conducted over 5,000 SCA compliance investigations that resulted in over $220 million in back wages for workers. DOL has the option to debar Federal contractors, which prevents them from receiving new Federal contracts for three years. While debarment is one of the enforcement tools, there are also employer compliance agreements.
While DOL debarred 60 Federal contractors from 2014 to 2019, there was a lack of proper communication to the contracting agencies about SCA debarments and violations. GAO explained that DOL does not have a process to “consistently or reliably” notify contracting agencies of SCA violations. DOL omitted unique identifiers of Federal contractors so agencies were not able to notify contracting staff. Currently, DOL is completing guidance to ensure proper communication of SCA violations.
FCW reported this week that the National Air and Space Administration (NASA) is working to avoid cost-plus contracts as part of an effort to reduce budgetary overruns. NASA Administrator Bill Nelson described these contracts as a “plague” in his testimony to the Senate. These comments were in response to a GAO report that indicated that NASA is currently facing its largest schedule and cost overruns since it began reporting the information in 2009. The Administrator has appointed new staff to focus on acquisition, such as NASA Deputy Administrator Pam Melroy, a retired Air Force Colonel and former astronaut. Bill Nelson noted the success of the agency in replacing cost-plus contracts with competitions and fixed price contracts.
These efforts come as the White House is seeking nearly $26 billion for NASA for 2023, which is an 8 percent increase from the prior year. The agency stated in a press release that these funds will help develop the U.S. space industry while providing jobs and reducing existing costs. Nelson spoke about his commitment to reducing overruns and working with GAO to ensure an end to cost plus contracts stating, “I think we’re beginning to make some progress in closing out the GAO recommendations related to strengthening this acquisition process.”
HHS Working on Mitigating Information Security Risk
The Department of Health and Human Services (HHS) decided to continuously monitor its systems after an audit found its information security program was not effective, according to Fedscoop. The program was found ineffective because the Information Security Continuous Monitoring (ISCM) strategy was only partially executed and did not fully protect against threats. Currently, four operational divisions have completely transitioned to the ISCM and eight divisions are in progress to transition. HHS is working with the Department of Homeland Security (DHS) to implement an automated Continuous Diagnostics and Mitigation (CDM) tool which will be a long-term enterprise-wide solution. HHS and the Cybersecurity and Infrastructure Security Agency are working together to implement a Continuous Diagnostics and Mitigation program that will “collect asset, infrastructure, user and protection data” from the operational divisions. This program is expected to be implemented by the end of FY22. To support the protection of information security, HHS has created a monthly ISCM/CDM working group that discusses strategy, benchmarks, and key performance indicators.
Congress Advances Bill to Train Acquisition Workforce on AI
FCW reported that Congress is getting closer to passing a plan to require artificial intelligence (AI) training for workers in Federal acquisition. The AI Workforce Act was introduced by Reps Carolyn Maloney (D-N.Y.) and James Comer (R-Ky.), the Chairwoman and Ranking Member of the House Committee on Oversight and Reform. This bill would require the Office of Management and Budget (OMB) to provide AI training for the acquisition workforce. This training would give a general understanding of AI and its possible benefits, as well as the risks of potential discrimination and of privacy. The bill would also encourage OMB to work with experts from academia, the private sector, and the public sector to create this training program. Supporters of the bill in the Senate have cited the recommendation from the National Security Commission on Artificial Intelligence for more training to offset risks associated with AI. The bill is expected to be marked up by the House Oversight and Reform Committee on May 11.
Webinar: Bid Protest Update: Key Development and Strategies, May 24
The Coalition is pleased to host an upcoming webinar on Bid Protest Update: Key Development and Strategies. The webinar will take place on May 24 from 12 – 1 pm EST. Speakers will be Seth Locke and Alexander Canizares from Perkins Coie LLP.
The unavailability of key personnel after submitting a proposal in a federal procurement is among several issues that continue to generate disputes in bid protest litigation, with important implications for contractors. In this presentation, Perkins Coie Partners Seth Locke and Alexander Canizares will provide an overview of hot topics and key developments in case law before the Government Accountability Office, the U.S. Court of Federal Claims, and the U.S. Court of Appeals for the Federal Circuit and their significance for government contractors, including challenges involving key personnel, an agency’s duty to engage in discussions with offerors, and challenges focusing on cost realism and labor costs. Seth and Alex will also offer perspectives on ways for companies to mitigate risks and effectively defend and challenge agency procurement actions.
Click here to register.
Upcoming Coalition Committee Meetings
The following Committee meetings are scheduled for the month of May and are open to all members. Please note that the Coalition has a new process to attend member meetings. Rather than sending an RSVP, please register using the link provided in each meeting announcement. All registered members will receive the login information via email a few days in advance of the meeting. If you need any assistance, please contact Joseph Snyderwine at email@example.com.
VA Medical/Surgical Subcommittee Meeting MSPV-Z Dialogue on May 16
Please join the Medical/Surgical Subcommittee for a dialogue on the acquisition strategy for the VA’s MSPV-Z on May 16 at 2:30 pm EST. The guest speakers for the virtual meeting will be:
Office of Acquisition, Technology, and Logistics
Veterans Health Administration (VHA)
Associate Executive Director
Strategic Acquisition Center
U.S. Department of Veterans Affairs (VA)
Request for Questions
Mr. Centineo and Mr. Parker will brief members on the VA’s plans for the MSPV program moving forward. They are very interested in what topics and/or questions members would like them to cover. Please send your suggestions to Aubrey at firstname.lastname@example.org. A list of questions that we’ve received thus far is posted here.
Register to Attend
To register to attend the meeting, click here.
Small Business Committee Meeting on the Non-Manufacturer Rule, May 25
Please join the Small Business Committee on May 25 from 10 – 11 am ET at the Holland & Knight – DC location, as they host Carol Hulme, Attorney Advisor, SBA Office of Government Contracting and Business Development. Carol Hulme will discuss the non-manufacturer rule. Dial-in information will also be provided to all participants. Please send your questions or comments to Samantha Holt at email@example.com by May 16. To RSVP to attend, click here.