Friday Flash 09.11.20

Section 876 – GSA Takes Welcome Steps Towards Innovation

This August, GSA took two significant, interconnected steps towards increasing competition and access to the commercial market through its government-wide contract vehicles. First, as noted in our August 28 blog, GSA issued anAdvance Notice of Proposed Rulemaking(ANPR) regarding the implementation of Section 876, which authorizes civilian agencies to award multiple award contracts for services acquired on an hourly rate basis without considering price as an evaluation factor at the contract level. The ANPR seeks public comments that will assist in the implementation of Section 876 for the Federal Supply Schedule program. Comments on the ANPR are due on September 18, 2020. 

Second, on August 14, GSA issued the ASTRO solicitation for manned, unmanned, and robotic platforms.  ASTRO marks the first use of the Section 876 authority by the agency. Simultaneously, GSA issued a FAR deviation implementing Section 876 for its multiple award IDIQ contracts authorized by the Federal Acquisition Streamlining Act of 1994 (FASA). The scope of the deviation does not include regulations covering the FSS program, but it amends certain FAR language providing the baseline for use of the authority in connection with the ASTRO procurement. The FAR deviation is significant as, coupled with the ASTRO Section L and Section M, it provides insights into GSA’s thinking/approach regarding full Section 876 implementation. 

ASTRO is a thoughtful, appropriate first use of the authority. Lessons learned and practices developed in conducting the procurement can be replicated in future procurements, and they will inform future rule-making and the creation of governmentwide contracting frameworks implementing Section 876. ASTRO is, in a sense, a “procurement innovation lab” for Section 876. 

Again, Section 876, Increasing Competition At The Task Order, of the 2019 National Defense Authorization Act (NDAA), enhances/increases competition and access to the commercial market by authorizing multi-award IDIQ contracts for services where the pricing and value are determined through competition for specific customer agency task order requirements. By so doing, it eliminates the requirement to consider price at the contract award level. In addition, because it reduces the administrative and often arbitrary processes associated with the evaluation of contract-level pricing under multiple award IDIQs, including the FSS program, Section 876 can be a game charger for customer agencies, GSA, and industry!   

Section 876 will reduce barriers to entry for small businesses, allowing them to bring new capabilities directly to the federal market. Correspondingly, it will increase access to innovative solutions from across the commercial market by eliminating an artificial barrier to entry. Additionally, implementation of Section 876 will focus the FSS program on commercial best practices, continuing the march away from bureaucratic, non-competitive practices, like cost-build negotiations of contract service rates. Section 876 will have a cascading impact, reducing burdensome administrative contract costs, allowing customer agencies and industry to focus on competition for and performance of mission requirements. 

GSA’s Mark Lee, Assistant Commissioner, Office of Policy and Compliance at the Federal Acquisition Service, highlighted the benefits of, and interest in, this acquisition streamlining authority in his recent blog, “FAS Works to Enhance Competition.” Importantly, Mark highlighted the interplay between the ASTRO procurement and the ANPR in supporting implementation of Section 876.  Coalition members look forward to working with all stakeholders towards a sound, holistic implementation of Section 876 that enhances value for customer agencies and the American people. 

Continuing Resolution Planned to Avoid Government Shutdown 

Earlier this week, Politico reported that Congress plans to move forward with a “clean” continuing resolution (CR) to avoid a Government shutdown. The CR would fund the Government through December 2020 without being attached to another COVID-relief bill. The House returns from recess in mid-September and Congress is expected to pass the CR before the end of the fiscal year. The Coalition will keep members up to date on the status of a potential CR in the coming weeks. 

 

GSA Extends COVID-19 Acquisition Flexibilities 

GSA made the following three extensions to GSA COVID-19 related policies this week: 

  • Temporary Moratorium on the Enforcement of FAS Minimum Sales Requirements, MV-20-09 (includes Supplement 1) – extends the temporary moratorium on the enforcement of the minimum sales requirement (FAS Clause I-FSS-639) for Federal Supply Schedule (FSS) contracts to March 31, 2021.   
  • Purchase Exceptions for AbilityOne Products in Response to the COVID-19, SPE -2020-10  (includes Supplements 1 – 3) – extends the Purchase Exceptions authority for certain AbilityOne products to December 31, 2020.      
  • Exception to Trade Agreements and Buy American for FSCs due to COVID-19, SPE 2020-11 (includes Supplements 1 – 3) – extends the Trade Agreements and Buy American statutes non-availability determination to December 31, 2020. The supplement also adds Federal Supply Class (FSC) 8415, which includes items such as disposable Gloves, to the non-availability determination list. GSA will continue to monitor the need for this determination on a monthly basis. 

 

GAO Releases Report on Section 3610  

On September 3, the Government Accountability Office (GAO) released a report on the use of Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Section 3610 authorizes federal agencies to reimburse contractors for paid leave related to the COVID-19 pandemic through September 30, 2020. The report reviews the extent to which Section 3610 implementation guidance provided by the Office of Management and Budget (OMB) differs from the guidance given by selected federal agencies. The selected agencies include DoD, NASA, DOE, HHS, DHS, GSA, and VA. GAO also reported on how these federal agencies used the Section 3610 authority through July 2020.  

GAO found that while largely similar, there were some differences across agencies’ Section 3610 guidance documents, including the extent to which the rates used to calculate reimbursements could include profit or fees. On July 14, OMB issued additional guidance that addressed these differences and clarified how agencies should go about handling each situation.  

OMB advised agencies to report reimbursement amounts using Section 3610 through contract modifications to the Federal Procurement Data System-Next Generation (FPDS-NG). The reported data found that agencies made relatively little use of the Section 3610 authority through July 2020. Agency officials and industry representatives that were interviewed by GAO listed several reasons that limited Section 3610 obligations, including the absence of dedicated funding. Except for the Department of Energy and Department of Defense, other agencies did not expect a large amount or were uncertain about the level of future requests for reimbursements. DoD officials stated that they expect billions of dollars in requests.   

 

GSA FAS Publishes 889 Part B Modification Status Tracker  

To aid customer agencies in identifying which FAS indefinite delivery acquisition vehicle contracts have been modified to include FAR clause 52.204-25 (AUG 2020), GSA Federal Acquisition Service (FAS) has created the 889 Part B Modification Status Tracker page. The Tracker provides users with a registry of FAS managed acquisition vehicles, such as Multiple Award Schedules, Government-wide Acquisition Contracts and Multiple Award Contracts along with the current 889 Part B FAR clause 52.203-25 (AUG 2020) modification status. It also identifies which contractors have accepted the most recent Section 889 modification. The Tracker, along with other resources on Section 889, can be found on the Coalition’s resource page, What Federal Contractors Need to Know About Section 889.  

 

GSA Advantage Catalogue and Price Lists Updates Due by Oct 31 

The General Services Administration (GSA) released an update on Schedules consolidation. GSA reminded contractors that price lists (text files) and GSA Advantage catalogs must be updated by October 31, 2020. Vendors that do not update their price lists and catalogs may have their offerings removed from GSA e-tools. 

GSA will also be hosting monthly office hours, beginning on Wednesday, September 16 at 1:00 PM. Stephanie Shutt, Director of the MAS PMO, will lead the webinars and answer questions from industry about the Schedules. The registration for the next webinar can be accessed here 

 

VA Continues work on EHR Rollout through Pandemic 

According to Federal Computer Week, the Department of Veterans Affairs (VA) has continued work on the rollout of its electronic health record (EHR) system. John Windom, Executive Director of VA’s Office of Electronic Health Record Modernization, said that work on system implantation continued “behind the scenes” through other avenues despite the pandemic. VA developed the “1.1 capability set,” which is a version of the Cerner health record that supports small and medium-sized hospitals in the VA network. VA had previously pledged to go live with this expanded capability after announcing the delay of the rollout at the Mann-Grandstaff Medical Center in Spokane, Washington. Development of the 2.0 capability set, which supports functions at VA’s largest medical facilities, will be ready next Spring due to COVID-19 slowing down development.  

In August, VA executed plans to implement the Cerner scheduling solution, the Centralized Scheduling Solution, in Columbus, Ohio. This tool allows for patients to schedule appointments in primary care and other specialties through an app. This launch led VA to the decision to accelerate the rollout of the entire Cerner system in Veterans Integrated Service Network (VISN) 10 – a mid-west regional group of VA medical facilities. These upgrades are taking place as VA builds out VISN 20, which includes the Pacific Northwest and Alaska. Infrastructure work, including increased bandwidth and new end-user devices, for VISN 20 has taken place during the pandemic. VA has begun to install equipment in facilities in the VISN 10 region. VA plans to have infrastructure upgrades completed six months to one year prior to the Cerner go-live dates. 

 

Legal Corner: Defense Production Act—Using Authority To Address Emergent Needs

Authors: David Dowd, Luke Levasseur, and Marcia Madsen, Mayer Brown

*Rebublished with permission from Thompson Reuters.

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. 

Since late March 2020, the Defense Production Act of 1950 (DPA)1 has been used in a variety of ways to respond to the COVID-19 pandemic. The Government’s recent activities under the statute illustrate its flexibility, provide guidance regarding how it may be used in the future, and, in some instances, highlight its complexity and its limitations to address threats such as a global pandemic. The statutory authorities are both extensive and complex, as the statute has been amended repeatedly since 1950 in ways that require clarification. Although there is a breadth of authorities under the statute, some provisions are specific to problems that arose during past events and may not be sufficiently flexible to address the emergency circumstances faced today, such as the COVID-19 pandemic.

In the light of the current national emergency caused by COVID-19, this BRIEFING PAPER updates and expands upon BRIEFING PAPERS No. 01-12, Defense Priorities & Allocations System (published in November 2001 shortly after the September 11 terrorist attack) regarding the use of the DPA and related regulations.2 Specifically, after providing background on the DPA and the implementing regulations and reviewing practical considerations and historical use of the Act, this PAPER discusses COVID-19 related actions using the DPA priorities and allocations and related authorities.

Click here to read more.

 

Healthcare Spotlight: “Essential” Webinars for Healthcare Members Available on the Member Portal

This week the Coalition held two webinars for our Healthcare members on the recently-signed Executive Order on Essential Medicines and preparations for the upcoming Veterans Health Care Act of 1992 (VHCA) “Public Law” season.  We would like to thank our guest speakers, James Kim and Brian Malkin of McDermott Will & Emery and Allison Pugsley of Hogan Lovells and Greg Madden with Orlaithe Consulting for sharing their expertise with our members.  We would also like to remind everyone that, in case you missed it, recordings of these webinars are available through the Coalition’s Member Portal.

Webinar: Executive Order on Ensuring Essential Medicines, Medical Countermeasures, and Critical Inputs Are Made in the United States

James W. Kim and Brian J. Malkin, both Partners from McDermott Will & Emery’s Washington DC office, discuss the recently-signed Executive Order on Ensuring Essential Medicines, Medical Countermeasures, and Critical Inputs Are Made in the United States.

James and Brian provide a look at how the EO establishes a policy of decreasing reliance on foreign manufacturers for certain medical products (including pharmaceuticals) through a series of changes to procurement priorities.  James will focus on those changes that may result in significant limits to current manufacturing processes outside the U.S. for pharmaceutical manufacturers and distributors as well as the potential impact of changes awardee selection requirements.  Brian addresses the broad scope of the unfunded mandate to the U.S. Food & Drug Administration under the EO, the requirements related to areas not traditionally regulated by the agency as well as the impact of uncertainty regarding the resulting changes for the pharmaceutical industry.

For additional information, please click here to register for McDermott Will & Emery’s practice and industry updates.

Webinar: Pricing Training for Covered Drugs

Allison Pugsley, Partner with Hogan Lovells and Greg Madden with Orlaithe Consulting present best practices and issues to consider in preparation for the upcoming Veterans Health Care Act of 1992 (VHCA) “Public Law” season.  They discuss the required price calculations and price reporting requirements as well as necessary Federal Supply Schedule contract updates.  Additionally, they cover recent developments relating to FSS pharmaceutical contractors, including the new FAR rule regarding certain telecommunications equipment and services, VA statements regarding state and local government purchases, and anticipated guidance from VA regarding the definition of “covered drug” under the VHCA.

To access these healthcare-related webinars and others, log-in to the Member Portal at www.thecgp.org.  If you have any questions, please contact Michael Hanafin at mhanafin@thecgp.org.

 

IG Finds GSA Needs to Revamp COVID-19 Plan for Federal Offices 

Federal News Network reported that General Services Administration (GSA) has not properly communicated to occupants and contractors in federally owned or leased buildings about suspected or confirmed COVID-19 cases, according to the Inspector General (IG). GSA must notify employees no more than 24 hours after they are reported to the GSA Office of Facilities Management. GSA updated its policy in July to clarify that GSA is only responsible for notifying designated points of contacts and employees but not all building tenants, contractors, or visitors. There was an incident where GSA did not notify employees about a positive case of COVID-19 until 16 days after learning about a positive case. Rep. Gerry Connolly (D-Va.), chairman of the House Oversight and Reform Committee’s subcommittee on government operations, states that GSA’s current approach has resulted in a failure to clearly and quickly share positive COVID-19 cases, which is threatening the health and safety of federal workers, contractors, building occupants and the public. 

The IG also found that GSA does not have any guarantee that contractors are cleaning and disinfecting space according to applicable requirements, since GSA did not update or modify its contractor oversight plans for COVID-19 cleaning. GSA added language to its cleaning contracts for federally owned buildings this summer. The new language added to the policy does not clear GSA from its responsibility to inspect work and make sure that it is performed correctly. See full IG report here. 

 

DoD Reaffirms JEDI Cloud Contract to Microsoft 

On September 4, Department of Defense (DoD) published a press release stating that the agency completed its re-evaluation of the Joint Enterprise Defense Infrastructure (JEDI) cloud contract proposals and reaffirmed the decision to award it to Microsoft. After a protest from Amazon Web Services (AWS), DoD had reopened certain aspects of the JEDI solicitation to allow AWS and Microsoft to modify their bids. Work on the contract cannot begin due to a Preliminary Injunction Order issued by the Federal Court of Claims on February 13, 2020.  

According to Federal Computer Week, senior DoD officials have spoken about the urgency of getting JEDI online. Lt. Gen. Bradford Shwedo, CIO for the Joint Chiefs of Staff, said during a court filing that “JEDI cloud is critical for safeguarding our technological advantage against those that seek to harm our nation.”  

 

GSA Releases MRO Requisition Channel Generation Two RFQ 

General Services Administration (GSA) released Maintenance, Repair and Operations (MRO) Best in Class (BIC) Requisition Channel Generation Two Request for Quote (RFQ) on September 3. The RFQ can be found at eBuy under RFQ1449627. Any questions can be sent to fssi.mro-req@gsa.gov. 

 

Coalition Addresses Schedules Consolidation on Government Matters 

Roger Waldron, President of the Coalition for Government Procurement, was interviewed on Government Matters about Schedules consolidation and “frictionless acquisition”, which seeks to remove barriers to the Federal market. During the interview, Waldron discussed his thoughts on GSA’s consolidation initiative and how it can help better meet customer needs. Waldron also discussed next steps for the Schedules program, including the authority the implement “unpriced” Schedules. To watch the full interview, click here. 

CMMC Accreditation Board Experiences Turnover 

FedScoop reported that the Cybersecurity Maturity Model Certification Accreditation Body (CMMC-AB), which is the independent board that implements the new cybersecurity standards for defense contracts, added two new members. Sheryl Hanchar, Vice President and Chief Information Security Officer of Cobham Advanced Electronic Solutions, and Charlie Williams, President of CWilliams LLC are the most recent additions to the CMMC-AB. These two additions come after five members recently left or stepped back from their work with the CMMC-AB. The CMMC-AB is close to executing a new contract with the Department of Defense (DoD).  

 

Upcoming Webinars   

September 15 from 12:00 – 1:00pm EST: Update Webinar on beta.SAM.gov with Assistant Commissioner Judith Zawatsky (GSA)  

Assistant Commissioner Judith Zawatsky will bring you up-to-date and answer questions about the modernization effort. The new website already has integrated several legacy systems (CFDA.govWDOL.govFBO.gov) and is about to integrate the reporting functions from FPDS.gov. (only the reporting functions are moving over; the rest of FPDS.gov is staying in place for now). Next up will be the transition of legacy SAM.gov into beta.SAM.gov 

September 17 from 10:00am – 12:00pm EST: Trillions in Taxpayer Funds: The Next Phase – Fraud, Investigations, and False Claims (Mayer Brown).  

Over the past months, statutes representing massive efforts to support the economy and business have been enacted. Agencies have been provided new authorities, existing authorities have been relaxed, and government has distributed vast sums to companies through various methods, including procurements, loans, loan guarantees, and grants. This forum will explore the risks associated with these actions and the inevitable investigations and claims of fraud that are likely to arise from participation in these programs.  

September 22 from 12:00 – 1:00pm EST: Update on OTAs (Miller & Chevalier Chartered)  

Miller & Chevalier will be discussing everything OTAs, including a brief overview of the history of OTAs and important highlights and red flags to be aware of when contracting with the government using OTAs. Topics will include eligibility, considerations when negotiating proprietary rights under OTAs, and planning for the potential for a sole source follow-on production contract.  

September 24 from 12:00 – 1:00pm EST: Small Business Subcontracting Plans and Flow Down Clauses Demystified (Holland & Knight).  More information coming soon!  

The Coalition is pleased to host David S. Black and Eric S. Crusius from Holland & Knight LLP to discuss Small Business Subcontracting Plans and Flow Down Clauses Demystified. Small Business Subcontracting Plans are an underappreciated compliance risk for prime contractors and opportunity for small business subcontractors.  Likewise, understanding which clauses should be flowed down from a prime contract to a subcontractor can have important impacts in shifting and sharing performance risk and cost.

We hope that you will join us for our Lunch and Learn series webinars throughout the month of September.  If you have any questions about registration, please contact Michael Hanafin at mhanafin@thecgp.org.