Friday Flash 10.02.20

Registration Now Open… Join Us for the 2020 All Member Fall Training Conference

We are excited to announce that registration is officially open for The Coalition’s 2020 Virtual All Member Fall Training Conference: Focusing On The Business Of Government.  This two day event will take place on November 17 -18, where we will combine our traditional conference with our normally separate Healthcare Procurement Training Conference to form a two-day all member event that requires only one registration.  As we hope you will see from our DRAFT agenda, this event promises to be rich in actionable substance.  For this reason, we ask that you consideregistering today!

If you are interested in being a sponsor for this important event, please contact Matt Cahill at mcahill@thecgp.org.

Continuing Resolution Funds Government Through Dec. 11

On Wednesday, the Senate passed, and the President signed a continuing resolution (CR) that will fund the Government until December 11, 2020. According to Federal News Radio, the President signed the CR at about 1 am on Thursday morning, about one hour before the fiscal year deadline. The CR also extends Section 3610 of the CARES Act until December 11. As a reminder, Section 3610 authorizes federal agencies to reimburse contractors for paid leave related to the COVID-19 pandemic.  

 

CMMC Interim Rule Published 

On September 29, the Department of Defense (DoD) issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the Cybersecurity Maturity Model Certification (CMMC) framework in order to assess contractor implementation of cybersecurity requirements. According to the interim rule, CMMC will apply to all DoD contracts and solicitations, including those for the acquisition of commercial items (except exclusively COTS items) valued at or greater than the micro-purchase threshold, starting on or after October 1, 2025. If the offeror does not have the required CMMC certification, then contracting officers will not make an award or exercise an option on a contract. In addition, CMMC certification requirements must be flowed down to subcontractors at all tiers based on the sensitivity of the unclassified information flowed down to each subcontractor.  

DoD is implementing a phased rollout of CMMC. Inclusion of a CMMC requirement in a solicitation prior to October 1, 2025 will need to be approved by the Office of the Under Secretary of Defense for Acquisition and Sustainment.  

The interim rule is effective November 30, 2020. The Coalition plans to submit comments in response to the interim rule.  The deadline to submit comments to the Government is November 30, 2020.  If you would like to send any comments or questions to the Coalition, please contact Sean Nulty at snulty@thecgp.org. 

 

OMB Guidance on Combating Race and Sex Stereotyping Executive Order 

The Office of Management and Budget (OMB) released a memo on September 28 that provides guidance to Federal agencies on the implementation of Executive Order (E.O) on Combating Race and Sex Stereotyping. Federal contractors are required to represent that they will not conduct divisive training for their own employees. Contractors who are found to provide prohibited trainings specified in the E.O will be considered for suspension and debarment procedures consistent with the E.O. and in accordance with the procedures set forth in Part 9 of the Federal Acquisition Regulation (FAR). For contracts that fall under the exemption of the E.O., the following steps must be taken when diversity and inclusion training is provided to federal employees by contractors: 

  • Agencies must ensure that requirements are scoped consistent with the E.O. Existing contracts should be reviewed to ensure that training is consistent with this E.O. and any work identified as inconsistent is immediately removed, if necessary and permissible through a partial termination for convenience of the government. 
  • For future awards, agency solicitations or statements of work concerning Federal employee training shall include the provisions set forth in Section 4 of the E.O. 

For more details on the definitions and concepts covered by the E.O., click here. 

 

Recent Updates and Improvements to beta.SAM.gov 

The General Services Administration (GSA) posted a notice on Interact about recent updates and improvements to beta.SAM.gov. In the contract opportunities section, time zones have been added to search results and results downloads. For those who use the contract opportunities public search API, the v2 endpoint has been updated to https://api.sam.gov/opportunities/v2/search. This is also updated in the open.gsa.gov documentation. API keys can now be removed from profile pages, which will stop email reminders about needing to refresh the key. Issues involving users receiving email updates on unfollowed items have also been resolved. Contract data searches are no longer available on the drop-down menu on beta.SAM.gov. These searches will be kept on fpds.gov. Any saved searches for contract data on beta.SAM.gov will be unavailable. This change has no effect on contract data reports, which will remain in the Data Bank and will become authoritative on October 17, 2020.  

The following enhancements have been made to contract data reports ahead of the transition from fpds.gov to beta.SAM.gov: 

  • The standard Contractor Search report now suggests names in a dropdown as you begin to type the contractor name. This helps you find the correct vendor more easily. 
  • In all standard and administrative reports, you can now select up to 20 federal organizations instead of only 10, meaning you can run more efficient reports. 
  • You can now drill to Product Service Code (PSC) and PSC Description (PSC DESCR) separately on standard reports such as the Recycled Content Product Purchasing Data report and Sustainability report. 
  • We upgraded the reports software to the latest version to improve security and resolve some browser issues with Microsoft Edge and Internet Explorer 11. 

The user reference guide has been updated to reflect these changes. A user reference guide for federal assistance listings reports has also been added. Finally, the option to be notified when GSA posts release notes has been added. This can be achieved on the release notes page. 

 

Teleworkers an Opportunity to Fill Gap in Federal IT Workforce 

FedScoop reported that federal agencies have experienced a shortage of information technology (IT) skills. Federal agencies are competing for younger talent within the IT environment, but there is concern about whether they will be able to fill these roles.  In a survey conducted by FedScoop and WorkScoop, 126 federal decision makers, in IT, human resources, and budget offices were interviewed. About half of them stated that the government’s complex hiring process and minimum focus on IT workforce planning were problems in attracting skilled IT talent. However, remote work has presented an opportunity to hire and retain more skilled IT talent outside of DC. The survey also found that prioritizing the following would increase Federal agencies’ chance of hiring, retaining, or reskilling IT personnel: 

  • Prioritizing workforce development plans that align with agency strategies 
  • Renewing pressure on OPM, Congress and the Administration to address constraints in the GS schedule 
  • Aligning job descriptions with today’s technology world and streamline the hiring process 
  • Putting experience ahead of college degrees to provide wider recruitment opportunities 
  • Providing more time and resources to upskill and reskill current employees. 

 

Legal Corner: DoD’s Long Awaited Rule on CMMC – Plus a New Cybersecurity Assessment Methodology for Contractors to Start Right Now

Authors: Townsend Bourne & Nikole Snyder, Sheppard Mullin

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. 

At long last, DoD has provided its interim rule to be published in the Federal Register setting forth requirements for its Cybersecurity Maturity Model Certification (“CMMC”) program, as well as new requirements for a “NIST SP 800-171 DoD Assessment Methodology” that will take effect immediately.

Results of the NIST SP 800-171 DoD Assessments and CMMC certifications will be reported and maintained in the Supplier Performance Risk System (“SPRS”) (information available here).  Contracting Officers will be required to check SPRS and verify information on the contractor’s assessment or CMMC status prior to contract award or prior to exercising an option period or extending a contract period of performance.

NIST SP 800-171 DoD Assessment Methodology – For contractors already required to comply with NIST SP 800-171 per DFARS 252.204-7012, the Department of Defense (“DoD”) is now going to hold those contractors accountable, instituting an assessment and reporting system to verify compliance before new contracts can be awarded. While the new requirement is for information to be provided prior to contract award, DoD encourages affected contractors to begin their self-assessments immediately.

  • The Assessment Methodology will include three assessment levels: (1) Basic, (2) Medium, and (3) High.  The Basic Assessment will be a self-assessment completed by the contractor prior to contract award, while the Medium and High Assessments are available options for DoD to complete after award.

Click here to read the full article.

 

Healthcare Spotlight: GAO Assesses Wait Times for VA Community Care Program  

On September 30, the Government Accountability Office (GAO) published a report on the Department of Veterans Affairs’ (VA) Veterans Community Care Program (VCCP). The community care program was implemented in June 2019 as required by the VA MISSION Act of 2018.  The GAO’s report focused on appointment scheduling for the program which is done by VA medical center staff. 

GAO found that while the VA established an appointment scheduling process, it did not specify allowable wait times for some key steps in the process. VA had also not established an overall wait-time performance measure – that is, the maximum amount of time it should take for veterans to receive care from community providers. GAO found that VA is using metrics from the previous community care program that are inconsistent with the timelines established in the VCCP scheduling process. Additionally, few community providers have signed up to use the software that VA intends for its medical center staff to use for sharing referral information with each other. Finally, GAO found that some medical centers faced challenges scheduling appointments in a timely manner, and most centers did not have the full amount of community care staff that VA’s staffing tool recommends.  

While veterans still receive most of their care from VA medical facilities, the number of veterans that have received community care has increased 77 percent from 2014 through 2019, and in fiscal year 2019, VA obligated approximately $15.5 billion for community care services.  (In contrast, in FY 2019, VA obligated approximately $64.3 billion for services provided at VA medical facilities.) 

VA uses third party administrators (TPAs) to develop and administer the Community Care Network (CCN). Contracts for Regions 1 through 3 were awarded to Optum Public Sector Solutions (Optum) in December 2018, and the contract for Region 4 was awarded to TriWest Healthcare Alliance (TriWest) in August 2019. (See fig. 1.) As of September 2020, the contracts for Regions 5 and 6 have not been awarded.

Legal Corner: Executive Order on Combating Race and Sex Stereotyping Bans Some Diversity Training, Raises Significant Constitutional and Other Questions for Contractors

Authors: Trina Fairley Barlow, Adelicia R. CliffeKris D. MeadePreston L. PughRebecca L. SpringerJillian Ambrose, Crowell & Moring

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. 

With just six weeks remaining before the presidential election, President Donald Trump has issued an “Executive Order on Combating Race and Sex Stereotyping,” which bans federal contractors from utilizing training that “inculcates in its employees any form of race or sex stereotyping,” which is defined as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.”  The September 22, 2020 Executive Order (“EO”) similarly prohibits “race or sex scapegoating,” meaning – according to the EO – “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex,” and “encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”  The key clauses, described below, are to be included in new federal contracts entered into 60 days after the date of the EO, or November 21, 2020.   

The EO follows a letter sent to Federal Agencies earlier this month that bans training of government workers on “critical race theory,” “white privilege,” or other undefined “divisive, un-American propaganda training sessions.”

Banned Trainings

The EO includes the following examples of the concepts it aims to ban from trainings:

  • one race or sex is inherently superior to another race or sex;
  • an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • an individual’s moral character is necessarily determined by his or her race or sex;
  • an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
  • any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  • meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The EO also lists several anecdotal examples of training materials that the administration believes are objectionable and would fall within the scope of banned trainings:

  • Training materials from a Federal entity “stated that racism ‘is interwoven into every fabric of America’ and described statements like ‘color blindness’ and the ‘meritocracy’ as ‘actions of bias.’”
  • Materials from another Federal entity,, “for non-minority males stated that an emphasis on ‘rationality over emotionality’ was a characteristic of ‘white male[s],’ and asked those present to ‘acknowledge’ their ‘privilege’ to each other.”
  • A federal museum graphic “recently claimed that concepts like ‘[o]bjective, rational linear thinking,’ ‘[h]ard work’ being ‘the key to success,’ the ‘nuclear family,\’ and belief in a single god are not values that unite Americans of all races but are instead ‘aspects and assumptions of whiteness.’ The museum also stated that ‘[f]acing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.’”

Enactment and Enforcement

  • The EO requires the Office of Federal Contract Compliance Programs (“OFCCP”) to publish, within 30 days, in the Federal Register a Request for Information “seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees” that includes copies of the trainings.
  • The EO requires OFCCP “to establish a hotline and investigate complaints received under both this order as well as Executive Order 11246 alleging that a Federal contractor is utilizing such training programs in violation of the contractor’s obligations under those orders.”
  • The provisions of the EO must be flowed down to all subcontracts and undefined “purchase orders” entered into beginning 60 days after the date of the EO – November 21, 2020.
  • All federal agencies that issue grants must submit a report, also within 60 days of the EO, identifying “programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the concepts that” run afoul of the EO.
  • By a date uncertain, the Director of the Office of Personnel Management shall propose regulations giving agency officials authority to “pursue a performance-based adverse action proceeding” against employees who authorize or approve “training that promotes the divisive concepts” banned by the EO.
  • The Attorney General is charged with determining the extent to which workplace training “that teaches the divisive concepts” banned by the EO, may contribute to a hostile work environment and give rise to claims under Title VII of the Civil Rights Act, and, if appropriate, will issue guidance to assist employers “in better promoting diversity and inclusive workplaces consistent with Title VII.”
  • Penalties for non-compliance may include contract suspension or cancellation, or debarment, as well as investigation by the Attorney General for Title VII violations. 

Takeaways for Federal Contractors

The EO is sure to face legal challenge in the near term, likely on Constitutional grounds and based on possible conflicts with existing civil rights laws.  Federal contractors and subcontractors should closely monitor legal developments regarding the EO.  The parameters of the prohibitions are not clear, and some in the federal contracting community are concerned that implementation of the EO may compromise existing Diversity and Inclusion programs or enhance the legal risk of discrimination and harassment complaints brought by employees.  Federal contractors, subcontractors, and their vendors should stay tuned for future legal developments.

 

GAO Best Practices Guide for Agile Implementation 

The Government Accountability Office (GAO) released a report on best practices for agile adoption and implementation. The federal government spends at minimum $90 billion annually on information technology (IT) investments.  In January 2019, GAO added the management of IT acquisitions and operation to their high-risk list.  Since there are recommendations that still have not been addressed from the earlier report, GAO is releasing this report as a guide to address generally accepted best practices for Agile, adoption, execution, and control. This guide includes several chapters. In chapter six, there is a best practices checklist for contracting for an agile program. GAO has structured this guide similarly to the other guides in GAO’s series of best practices guides. 

 

Congress Considering Buy American Rules in NDAA Provisions 

According to DefenseOne, the House has approved provisions in its version of the 2021 National Defense Authorization Act (NDAA) that would require 100 percent American-made parts in acquisition programs by 2026. The Senate has also introduced similar legislation. The recent legislation could be a reaction to the spotlight the COVID-19 pandemic has put on the Defense Department’s reliance on globally sourced materials for weapons. Currently, foreign sales account for one quarter of annual revenue among top U.S. defense companies. Former U.S. defense officials and allies are pushing back against the stringent Buy-American approach, noting that most products require global suppliers. 

 

House Bill to Establish GSA Modernization Centers of Excellence

Rep. Ro Khanna (D-CA) introduced a bill that would establish a program to facilitate the adoption of modern technology by executive agencies. The program is to be established by the GSA Administrator and called the Modernization Centers of Excellence Program. The program would have the following responsibilities: 

  • To modernize information technology and how a customer interacts with an executive agency. 
  • To improve cooperation between commercial and executive agency information technology sectors. 
  • To assist an executive agency with planning and adoption of modern technology and cloud computing 
  • To share best practices and expertise an executive agency. 
  • Other responsibilities the Director of Technology Transformation Services may identify. 

 

DoD’s Coronavirus Acquisition Task Force Will be Permanent 

Federal News Network reported that the Joint Acquisition Task Force (JATF), which was created to address the coronavirus, is transitioning to a permanent office. In 2021, the JATF will become the Defense Assisted Acquisition Cell (DA2C), which will be a part of the existing Joint Rapid Acquisition Cell (JRAC).  The JATF has completed more than $3 billion in contracts for other agencies, including the Department of Health and Human Services (HHS) and Federal Emergency Management Agency (FEMA).  According to Stacy Cummings, the assistant secretary of Defense for acquisitions enablers, the Department of Defense already has a well-established channel to work with FEMA and now it has a centralized organization to build and maintain relationships with other agencies. Major General Cameron Holt said the JATF has been able to vet vendors to prevent a lot of fraud, waste, and abuse. 

 

VA Amending VAAR to Streamline and Align with the FAR 

The Department of Veterans Affairs (VA) released a final rule that amends and updates the Veteran Affairs Acquisition Regulation (VAAR) to streamline and align with the Federal Acquisition Regulation (FAR). These changes will occur in phased increments. The VA will remove or revise any policy that is superseded by adjustments in the FAR, incorporate any new agency specific regulations or policies, and remove procedural guidance internal to the VA into the Veteran Affairs Acquisition Manual (VAAM). These changes to streamline the VAAR will remove duplicative requirements and reduce burden on contractors. As these changes to the VAAR are rewritten, the VA will publish them in the Federal Register. This final rule will go into effect on October 26, 2020. 

 

DFARS Rule on Single Award IDIQs  

The Department of Defense (DoD) released a final rule that modifies the Defense Federal Acquisition Regulation Supplement (DFARS) to adjust a requirement for awarding single award Indefinite Delivery/Indefinite Quantity (IDIQ) contracts. Currently, DoD can award IDIQ contracts exceeding $100 million to a single source if the head of agency makes a written determination. The final rule implements Section 816 of the 2020 National Defense Authorization Act (NDAA) and removes the requirement for a written determination if the head of agency made a written a determination for other than competitive procedures.