One does not often hear of many icons in the government procurement space. Probably the closest to such symbols of excellence are Ralph Nash and John Cibinic, authors of the seminal work on government procurement law that no doubt has been read and re-read by countless procurement lawyers and professionals in practice today. Few would question, however, that this year’s Common Sense in Government Procurement awardee, Jon Etherton, who, for over 35 years, contributed to the body of law and policy in government procurement, shares such iconic status.
The Common Sense in Government Procurement award, the Coalition’s highest honor, is presented to dedicated individuals who have demonstrated a professional lifetime of leading exceptional “common sense” contributions to improving the operation and management of the Federal acquisition process to ensure that it delivers best value for agencies and citizens. With this award, Jon joins the ranks of illustrious past awardees displaying great integrity, transparency, and commitment to the profession, including Vice President Al Gore, Congressman Tom Davis, Senators Joe Lieberman and Susan Collins, and Gormley Group President and former GSA Senior Executive (SES) Assistant Commissioner for the Office of Acquisition Bill Gormley, all distinguished for their significant work to improve the procurement system.
Some may recall Jon from his 18-year career on Capitol Hill, where he was singled-out repeatedly in the Congressional Record for his work on the annual National Defense Authorization Act. During that time, Jon played such a critical role in the acquisition reform effort that he stands among but a handful of staff on Capitol Hill who worked to improve the acquisition system through legislative change on such laws as the amendments to the Office of Federal Procurement Policy Act; the Federal Acquisition Streamlining Act, and the Clinger-Cohen Act. He is the co-author, with Will Goodman, of “Pathway to Transformation: NDIA Acquisition Reform Recommendations,” submitted to the House and Senate Armed Services Committees in November 2014.
Others may know of Jon as the Founder and Senior Consultant of Etherton and Associates, Inc. In that role, he provided unparalleled advice on all matters procurement, and his views were sought by not only industry players, but also independent think tanks and key government leaders seeking to bring efficiency to our procurement system. By way of example, from 2005-2007, Jon was selected to serve on a federal advisory committee, the Acquisition Advisory Panel established pursuant to Section 1423 of the Services Acquisition Reform Act of 2003 (the “SARA Panel”), where he reviewed and made recommendations on all federal acquisition laws, policies, and regulations. Likewise, Jon’s work at the firm that carries his name followed his service as Vice President for Legislative Affairs at the Aerospace Industries Association of America, where he developed industry consensus across the spectrum of those firms critical to our defense industrial base.
The breadth of Jon’s contributions to the procurement community and awards reads like a punch list of excellence. Here are but a few:
- Director, Procurement Roundtable
- Member, Board of Advisors, National Contract Management Association
- Member, Board of Directors, Coalition on Government Procurement
- Trustee, Subcontract Management Institute
- Member, Board of Directors, American Foreign Policy Council
- Senior Fellow, Acquisition Reform, National Defense Industrial Association
- Federal Computer Week Federal 100 Award (1995)
- Information Technology Association of America Procurement Innovation Award (1999)
- David D. Acker Skill in Communication Award from the Defense Acquisition University Alumni Association (2004)
- Induction into the Defense Acquisition University Hall of Fame (2008)
- 2015 Herbert Roback Memorial Award for contributions to the betterment of public contracting by the National Contract Management Association (2015)
All of this contribution, all of this success comes in addition to a life of outstanding personal service. A man of faith, Jon worked with his church to bring affordable housing to those facing shelter challenges in his community. In addition, he served on the board of the BSA, volunteering his time to aspiring Eagle Scouts. Jon also is active in Little People of America (LPA), an organization dedicated to improving the lives of people with dwarfism and their families, speaking on issues, like developing a business, and serving on LPA’s Advocacy Committee.
All told, Jon’s life is an exemplar of service, service to his family, service to his faith, service to his community, and service to his profession. With the Coalition’s award for Common Sense in Government Procurement, Jon receives another well-deserved recognition for his career of service dedicated to improving our procurement community.
The Coalition will be announcing our second honoree next week.
Coalition Submits Comments on Transactional Data Reporting
Last week, the Coalition submitted comments in response to GSA’s Federal Register notice requesting public input on an extension of the Transactional Data Reporting (TDR) pilot. Informed by the results we received from our survey on TDR last month, we express support for the continuation of the TDR pilot as an option for all Multiple Award Schedule (MAS) contractors. The Coalition supports the introduction of TDR as an option for its ability to improve supply chain resilience, provide price transparency, and promote policy objectives, like sustainable acquisition. In addition, the Coalition expresses support for the development of further training and policy surrounding the program.
If you have questions about TDR or the Coalition’s comments, please reach out to President Roger Waldron at rwaldron@thecgp.org.
Join the Coalition’s Alliant 3 Working Group
On October 19, the General Services Administration (GSA) released a Draft Request for Proposal (RFP) for its Alliant 3 contract vehicle. The document contains sections of the contract for which GSA is seeking public comments and questions. Interested parties are encouraged to review the Draft RFP and provide feedback using the response template included in the SAM.gov notice. Comments and questions are due by January 6, 2023, at 12 pm EST.
The Coalition is forming an Alliant 3 Working Group to respond to the RFP and engage with GSA on the procurement vehicle. In addition, the Coalition plans to schedule a meeting with GSA on Alliant 3 after the Fall Training Conference. (The Fall Training Conference will take place on November 16-17.)
If you are interested in joining the Alliant 3 Working Group, please contact Michael Hanafin at mhanafin@thecgp.org.
GSA Issues Memo on Management’s Role in the Acquisition Process
GSA’s Office of Acquisition Policy has issued a memorandum, Appropriate Internal Interactions in the Acquisition Process, regarding management involvement in GSA acquisitions. The memo rescinds the 2014 policy Managing and Documenting Stakeholder Interest in Contracting Actions and the 2014 memo Enhancing Proper Procurement Controls and the Contracting Officer’s Autonomy within the Procurement Function. The full memo can be viewed here.
More Speakers Confirmed For 2022 Fall Training Conference!
We are less than three weeks away from the 2022 Fall Training Conference – Expectations for Fiscal Year 2023! Register now to learn about what contractors should know regarding Federal procurement programs and policies in the new fiscal year. The Fall Training Conference provides an excellent opportunity for cross-cutting dialogue between industry partners and government officials. This hybrid two-day conference will be held on November 16-17 at the Fairview Park Marriott in Falls Church, Virginia, with virtual attendance available, as well. More information on the agenda is available below.
November 16 – Governmentwide Focus
The first day of the conference has a governmentwide focus. Officials from the Department of Defense (DoD), Department of Homeland Security (DHS), Defense Logistics Agency (DLA), General Services Administration (GSA), National Aeronautics and Space Administration (NASA), National Institutes of Health (NIH), Small Business Administration (SBA), and Department of Veterans Affairs (VA) will be participating on numerous panels. This year’s conference will begin with a Keynote Address from the knowledgeable Tom Davis, former Congressman and current Holland & Knight Partner, who will provide analysis of the election results, detailing what happened and what these results mean for the Federal government.
Following Congressman Davis’ remarks, the morning panels will begin with the return of the popular “Rogers Awards,” which will cover recent procurement-related legal matters. Next up is the Acquisition Policy Expectations session, which features an interagency panel of Procurement Executives, including Angela Billups, Executive Director, Office of Acquisition and Logistics, VA; Paul Courtney, Chief Procurement Officer, DHS; Jeff Koses, Senior Procurement Executive, GSA; and John Tenaglia, Director, Defense Pricing and Contracting (DPC), DoD. GSA Federal Acquisition Service (FAS) Commissioner Sonny Hashmi is invited to deliver the second Keynote Address of the day on his vision for FAS in the new fiscal year and thoughts on customer service for both industry and agency partners.
After lunch, attendees can choose to attend the Expectations for FAS Procurement Programs Panel consisting of GSA FAS Assistant Commissioners Laura Stanton, Office of IT Category; Charlotte Phelan, Office of Enterprise Strategy Management; Tiffany Hixson, Office of Professional Services and Human Capital Categories; and Erv Koehler, Office of General Supplies and Services, or the Cyber Expectations Panel covering the latest cybersecurity requirements impacting contractors such as CMMC and Section 889. We will then move into the afternoon Business Intelligence Panels, where participants will have several sessions to choose from. Attendees can expect to be informed on GSA systems, the cloud marketplace, e-commerce, legislative updates from the Hill, policies impacting small businesses, the latest developments on contract vehicles such as SEWP, OASIS+, Alliant, and CIO-SP, and more. The full day one draft agenda can be viewed here.
November 17 – Healthcare Focus
Officials from the Defense Health Agency (DHA), Defense Logistics Agency (DLA), Department of Health and Human Services (HHS), and VA are invited to participate in the second day, which focuses on healthcare procurement. We are excited to announce that Michael Parrish, VA Principal Executive and Chief Acquisition Officer, is confirmed to deliver the Keynote Address. Mr. Parrish will provide his priorities and initiatives for fiscal year 2023, as well as outline next steps for VA supply chain modernization.
Phil Christy, OALC Deputy Executive Director, VA and Andrew Centineo, Executive Director, Procurement and Logistics, VHA will share insights on VA programs and policies during the first panel, the Expectations for VA Logistics and Procurement. Participants can then look forward to learning from agency executives and industry leaders during the Expectations for DHA, DLA, and VA Policy and Healthcare Legal Panels. We are fortunate to have Moshe Schwartz, President of Etherton and Associates, wrap up the networking lunch by providing his insights on the healthcare supply chain and legislation. The afternoon Business Intelligent Panels will dive into a number of topics, such as the medical supply chain, the DLA MSPV and ECAT programs, VA MSPV-Gen Z and T2, DHA pharmacy operations, and more. View the full agenda for day two here.
Ask the PMO – Stop by to ask your questions in person!
Register for the Fall Training Conference here. For questions about the conference or sponsorship opportunities, please contact Matt Cahill, Vice President of Membership & Marketing, at mcahill@thecgp.org. We look forward to seeing you in just a few weeks for another informative conference!
Networking Breakfast and Reception
Please join us for an hour each morning for breakfast and networking, and then make sure to stick around at the conclusion of the afternoon breakout sessions as both days will end with an in-person networking reception to allow for participants to connect with one another and continue their discussions on key acquisition topics from the day.
Registration and Sponsorship Opportunities
Register for the Fall Training Conference here. As a friendly reminder, Keystone Members receive unlimited complimentary registrations; Executive Members receive five complimentary registrations; and Premier Members receive two complimentary registrations.
Additionally, this is a fantastic opportunity to help support the Coalition while also getting name and brand recognition for your company. We have a wide variety of sponsorships available for all budgets and would truly appreciate your support!
Thank you to our current sponsors for Day 1: Raytheon, Gold Sponsor; GDIT, Gold Sponsor; Sheppard Mullin, Silver Sponsor; The Gormley Group, Silver Sponsor, and The Center for Procurement Advocacy, Lunch Sponsor. Thank you also to our Day 2 sponsors: AvKARE, Title Sponsor; McKesson, Gold and Lunch Sponsor; and The Center for Procurement Advocacy, Breakfast Sponsor.
If you need assistance with event registration or have sponsorship questions or commitments, please contact Matt Cahill, Vice President of Membership & Marketing, at mcahill@thecgp.org or 202-315-1054.
FAS Commissioner Emphasizes Importance of Defining Critical Software
FedScoop reported on GSA Federal Acquisition Service (FAS) Commissioner Sonny Hashmi’s presentation at the recent ACT-IAC’s Imagine Nation ELC 2022 event, during which he stated that a priority for the Federal IT community should be identifying critical software components in order to help address supply chain risks. Hashmi spoke on the importance of having a clear definition of critical software, adding that it “keeps us secure and operating.” Currently, GSA, the National Institute of Standards and Technology (NIST), and the Cybersecurity Infrastructure Security Agency (CISA) have been working to create clear cyber supply chain guidance for industry. CISA and the OMB are collaborating to create a “common form” for Federal agencies to use to ensure that vendors are selling technology that meets NIST security standards.
In May 2021, NIST published an initial definition of critical software following an executive order on the subject. NIST defined critical software as “any software that has, or has direct software dependencies upon, one or more components with at least one of these attributes:
- is designed to run with elevated privilege or manage privileges;
- has direct or privileged access to networking or computing resources;
- is designed to control access to data or operational technology;
- performs a function critical to trust; or,
- operates outside of normal trust boundaries with privileged access.”
President Biden Signs Law to Change Anti-Human Trafficking Provisions in Federal Contracting
President Joe Biden signed a law last Monday that will change how agencies respond to human trafficking by Federal contractors and subcontractors, reports GovExec. Introduced by Senator James Lankford (R-OK) and co-sponsored by Senator Joni Ernst (R-IA), the End Human Trafficking in Government Contracts Act of 2022 requires that Federal agencies, upon receiving an Inspector General report substantiating allegations that a contractor has engaged in human trafficking, refer the contractor to the agency’s suspension and debarment official, which could result in the contractor being suspended or debarred, stopping them from doing business with the Federal government. Agencies previously had the discretion to decide whether a suspension/debarment referral was warranted.
As under previous anti-trafficking legislation, responsibility for violations flows upwards: if the Inspector General determines that a subgrantee, subcontractor, or agent of a subgrantee or subcontractor committed a violation, the mandatory referral affects the prime contractor. Additionally, the act requires that, within 90 days of enactment, the Office of Management and Budget (OMB) report to Congress on the act’s implementation.
Under the existing Federal Acquisition Regulation (FAR), all Federal contracts must include the Combating Trafficking in Persons clause, which forbids contractors, subcontractors, and their agents from engaging in trafficking practices, including coercion, debt bondage, charging recruitment fees, or sex trafficking. For overseas service or supply contracts (except for commercially available off-the-shelf items), contractors must implement anti-trafficking compliance plans if the contract’s value exceeds $550,000.
Implementing these provisions and similar agency-specific anti-trafficking regulations remains a challenge. In a 2021 report, the Government Accountability Office (GAO) found that contracting officers and contracting officer representatives in the Department of Defense (DoD), Army, and Navy were not consistently aware of their responsibility to prevent trafficking and that DoD reporting regarding trafficking in persons was incomplete. The DoD Office of the Inspector General has also conducted multiple investigations into compliance failures and trafficking violations in recent years, including in a public report on trafficking connected to military operations in Kuwait.
Imaging Committee Meets with IWAC Leadership
On October 26, the Coalition’s Imaging Committee met with Kristine Stein, Business Development Director of the Integrated Workplace Acquisition Center (IWAC) and John Breen, Projects Branch Chief at IWAC. The meeting included a discussion of Cybersecurity Supply Chain Risk Management (C-SCRM) requirements and accommodating the office of the future. To access the slides from the meeting, click here.
For more information on the meeting or questions about the Imaging Committee, please contact Joseph Snyderwine at JSnyderwine@thecgp.org.
GSA Administrator Speaks on Tests of Coworking Spaces Coming in November
GSA Administrator Robin Carnahan announced that the agency will be rolling out new coworking spaces to test new concepts in physical space design, reports Meritalk. During ACT-IAC’s Imagine Nation ELC 2022 event, Carnahan spoke on how GSA is looking to shape the federal footprint so that the space needs of agencies are met in terms of providing a collaborative environment. The goal of the tests is both to create spaces that maximize the in-person benefits of collaboration and to test new products that will meet the needs of these spaces. The test of the coworking spaces will occur during the week of November 14 in Washington, D.C.; Denver; and San Francisco.
Legal Corner:
New Software Development Security Attestation and Related False Claims Act Liability for Commercial and Non-Commercial Software Developers and Suppliers
Could Careless Coders Face False Claims Liability?
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.
By Stephen Ruscus, Partner, BakerHostetler and Brian Craig, Counsel, BakerHostetler
Key takeaway
Software producers at all levels in the federal supply chain should prepare to attest that their software development practices comply with NIST standards supported by artifacts that demonstrate secure software development and the software’s bill of materials.
What happened
On September 14, 2022, the Office of Management and Budget issued guidance establishing timeframes for requiring all federal agencies to only use software provided by developers (producers) who can attest in writing to complying with the NIST-specified secure software development framework (NIST SP 800-218) and NIST software supply chain security guidance. OMB’s actions implement President Biden’s May 12, 2021 Executive Order requiring NIST to identify practices that enhance the security of the software supply chain.
OMB’s memorandum could have far-reaching implications for developers and federal suppliers. “Software” for this purpose includes firmware, operating systems, applications, and application services (e.g., cloud-based software), as well as products containing software. OMB’s memorandum implies that this attestation requirement is meant to ripple through the supply chain so that all software used on agency information systems or affecting agency information – from laptops and servers to printers and IOT connected devices – could need an attestation.
Federal agencies are directed to obtain an attestation – either from the Software producer or, potentially, for critical software, from a third-party assessor. Although the form of the attestation is not final, the OMB directive indicates it will include a statement attesting that the software producer follows secure development practices and tasks.
Where a software producer cannot provide an attestation with respect to all specified development practices, software producers will be required to identify those practices to which they cannot attest, document practices they have in place to mitigate those risks, and develop a Plan of Action & Milestones. In support of the attestation, agencies can also request artifacts that demonstrate conformance to secure software development practices, as needed. Agencies may also request a software bill of material (SBOM) and require that the SBOM be provided in a format approved by the National Telecommunications and and Information Administration (see the NTIA SBOM website for more information on SBOMs).
Pursuant to OMB’s memorandum, agencies are required to develop processes to communicate requirements to vendors within 120 days. Agencies are required to collect attestation letters for critical software within 270 days and collect attestation letters for all software subject to the requirements within 360 days of publication of the OMB memorandum. OMB’s memorandum establishes a process through which an agency may request an extension for its compliance as well as a process through which an agency can seek a waiver of specific requirements in exceptional cases for a limited duration.
Importantly, as written, the requirement for conformance with federal standards and the related attestation and compliance risk will flow down to commercial software developers and suppliers whose software is ultimately installed on the agency’s information systems or otherwise affecting the agency’s information, including because it is on private contractor systems that processes, stores, or transmits government information.
False Claims Act liability
The attestation will require an affected company’s careful analysis of its software development practices against the applicable requirements, and responsibility should not be taken lightly. On October 6, 2021, Deputy Attorney General Monaco announced a new Civil Cyber-Fraud Initiative that will use the False Claims Act to pursue companies who receive federal funds when they knowingly fail to follow required cybersecurity standards; furnish deficient cybersecurity products/services; or misrepresent cybersecurity practices. “Knowingly” in this context includes actual knowledge but could also include deliberate ignorance and even reckless disregard for the truth or falsity of information. So, for example, a developer who certifies compliance with the NIST software development standards without first verifying that the standards were followed may have acted with reckless disregard to the truth or falsity of this claim. The False Claims Act also includes a unique whistleblower provision, which allows private parties to assist the government in identifying and pursing fraudulent conduct and to share in any recovery, and protects whistleblowers from retaliation for alerting the government to false claims.
Next Steps
The implementation timeline will vary depending on factors which include the type of Software involved and software development update schedules. In the meantime, each software producer should be reviewing software development practices against the NIST standard and guidance to identify gaps in their practices. Where software producers identify practices to which they cannot attest, they should develop an action plan to close the gaps and document practices they have in place to mitigate risks until they can close the gaps.
Author Information
Stephen Ruscus is a partner with BakerHostetler and serves as the firm’s Government Contracts practice leader.
Brian Craig is Counsel with BakerHostetler and is an experienced cybersecurity and government contracts attorney. He was previously the general counsel for Lockheed Martin Europe.
Section 889 Updates:
Prohibition on Use or Delivery of Chinese Telecommunications and Video Surveillance Products and Services: The Potential Link Between Section 889 of the 2019 NDAA and Section 1260H of the 2021 NDAA
Last week, we covered the Department of Defense’s update to its list of companies associated with the military of the People’s Republic of China and its potential compliance implications vis-a-vis Section 889. To provide further context and expand on possible compliance implications, we are publishing comments from Isias Alba, a partner at member law firm PilieroMazza, in lieu of our usual Healthcare Corner. The comments herein are provided courtesy of PilieroMazza and do not necessarily reflect the views of The Coalition for Government Procurement.
Over the past few days, PilieroMazza received a number of inquiries related to our recent posting entitled DOD Releases New List of Section 889 Banned Entities. In that post, we discussed how DOD recently released a new list of entities determined by DOD to be deemed “Chinese Military Companies.” This release was not made under Section 889 of the 2019 NDAA but instead under Section 1260H of the 2021 National Defense Authorization Act (NDAA). This caused confusion related to the potential intersection of the two laws and whether one impacts the other. Below, we offer further clarification.
While we believe the requirement for DOD to report Chinese Military Companies under Section 1260H is separate and apart from Section 889, there is a risk that DOD could view the Section 1260H list as being tantamount to a finding that firms on that list who manufacture telecommunications and video surveillance equipment are entities “owned or controlled, or otherwise connected to, the government of a covered foreign country [China]” under Section 889.
Specifically, Section 889(D) states that it applies to “telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country [China].” This language mirrors that of Section 1260H in a number of ways.
First, as with Section 889, Section 1260H(c) states that the “[S]secretary [of Defense] may consult with the head of any appropriate Federal department or agency in making the determination [as to whether a company is a Chinese Military Company].” This is similar to Section 889(D) where the Secretary of Defense is to meet with the Director of National Intelligence and the Director of the Federal Bureau of Investigation to make the determination of whether entities should be placed on the list.
Further, companies are deemed to be “Chinese Military Companies” under Section 1260H(B) if they are an entity that is “(i) (I) directly or indirectly owned, controlled, or beneficially owned by, or in an official or unofficial capacity acting as an agent of or on behalf of, the People’s Liberation Army or any other organization subordinate to the Central Military Commission of the Chinese Communist Party; or (II) identified as a military-civil fusion contributor to the Chinese defense industrial base; and (ii) engaged in providing commercial services, manufacturing, producing or exporting.” This could be interpreted by DOD as being nearly identical to the direction given by Congress under Section 889 that companies should be covered by the telecommunications and video surveillance ban if they are “an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country [China].”
Thus, while the list PilieroMazza reported on in our October 10th blog—issued by DOD pursuant to Section 1260H of the 2021 NDAA—is not directly attached to Section 889, we believe that a risk exists that the DOD could, based on the analysis above, use that list as a basis for supplementation of the firms covered by Section 889. While DOD never released any information directly related to Section 889, it does routinely issue updates to the Section 1260H list. Thus, if the entities on the 1260H list produce telecommunications or video surveillance equipment, they could be considered by DOD to be “an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country [China]” under Section 889.
While it is not guaranteed that DOD will make such a connection, PilieroMazza believes it is important for government contractors to understand the possible link and be aware of the risks if they are using telecommunications or video surveillance equipment from companies listed on the Section 1260H list published by the DOD.
If you have questions about Section 889 compliance and its impact on your business, please contact Cy Alba, the author of this blog, or another member of PilieroMazza’s Government Contracts or Cybersecurity & Data Privacy practice groups.
A View From Main Street
This week’s A View From Main Street features guest author Ken Dodds of Live Oak Bank. The comments herein do not necessarily reflect the views of The Coalition for Government Procurement.
Is it Time to Rethink Joint Ventures and Multiple Award Contracts?
There are reports that most of the awards under CIO-SP4 small business went to mentor protégé joint ventures involving large businesses. There are also reports about protests involving Polaris small business, alleging the solicitation is too restrictive with respect to mentor protégé joint ventures. There are stories involving joint ventures with 30+ firms that come and go, each paying an access fee to the joint venture to individually perform their own orders under the joint venture. There are also stories about firms that specialize in submitting joint venture offers for small business multiple award contracts (MACs), with no intention of performing any work under the contract, but instead with the intent of selling the contract as an asset to unsuccessful offerors.
Perhaps it is time to consider legislation prohibiting joint ventures in connection with small business MACs. Under SBA’s rules, joint ventures do not jointly perform the contract. Joint ventures are unpopulated. The joint venture is a pass-through entity subcontracting work to the joint venture partners. At the time of offer and award of these MACs, offerors do not know what skills or capabilities they will need to perform individual orders that will be competed and awarded over a span of ten years into the future. Perhaps it would be better to evaluate the individual small businesses for purposes of contract award, and then evaluate the prime and its selected subcontractors at the time of each order. Procuring agencies using point systems for contract evaluation purposes would have to set point total requirements at levels that actual small businesses could attain.
Mentors could still participate in these contracts as subcontractors to the protégé, and while agencies have discretion to decide how to evaluate subcontractor past performance and experience, the law could require that contracting officers consider the mentor subcontractor’s past performance and experience in connection with an order competition. The protégé prime would benefit by receiving prime contract past performance in its own name and unquestioned control of the contract and the relationship with the Government. If necessary, the law could allow for a 40/60 split of work between the small prime and large business mentor subcontractor on orders under MAC small business contracts.
VA Receives Almost 113,000 Disability Claims Under New Burn Pit Legislation
Federal Times reports that the Department of Veterans Affairs (VA) thus far has received 113,000 disability claims under the Promise to Address Comprehensive Toxics (PACT) Act. The law, signed by President Biden in August, allows Vietnam, Gulf-War, and post-9/11-era veterans suffering from several medical conditions connected to the use of burn pits (a waste disposal method known to produce toxic compounds), including cancer, respiratory illnesses, and radiation-related illnesses, to claim up to $4,000 in compensation. The VA expects to process the claims early next year, with payments to begin in the spring, although officials warn that the high case load may cause a backlog in processing new claims. The Act also expands eligibility for veterans to enroll in the VA’s healthcare system.
New Study to Examine American Rescue Plan’s Role in Advancing Equitable Outcomes
On October 20, GSA announced that it awarded a contract to the American Institutes for Research (AIR) to “examine the role of the American Rescue Plan (ARP) in advancing equitable outcomes across a range of Federal, state, and locally implemented programs.” The contract is supported by OMB, the Office of Evaluation Sciences (OES), and the ARP Implementation Team. Additionally, OES will conduct evaluations of up to ten ARP programs to complement AIR’s study.
The ARP, signed in March 2021, is intended to help citizens, communities, and small businesses recover from the impact of the COVID-19 pandemic. The ARP also included many components designed to respond to the pandemic’s disproportionate impacts on underserved individuals and communities. The study will span multiple years and look at how selected ARP programs contribute towards achieving equitable outcomes. The study will be used to build evidence on equitable implementation of ARP-funded programs.
President Biden Signs BRIGHT Act into Law
On October 17, President Joe Biden signed the Bulb Replacement Improving Government with High-efficiency Technology Act, or BRIGHT Act, into law. The bill, introduced by Senator Gary Peters (D-MI), requires GSA to procure the most life-cycle cost effective and energy efficient lighting products and to publish online guidance on the efficiency, effectiveness, and economy of these products. The requirement applies to any new procurement opportunity and ongoing maintenance of existing lighting fixtures. In addition to energy and life-cycle cost efficiencies, the law requires that GSA consider the compatibility of the lighting with existing equipment, possible interference with productivity, aesthetics of the lighting system, and other factors deemed appropriate by the Administrator.
Congressional Research Service Releases Comprehensive Report on SBIR and STTR
The Congressional Research Service, Congress’ in-house public policy research agency, has released a comprehensive report on the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs. SBIR and STTR work in tandem to direct federal research and development funding from Federal agencies to small businesses. SBIR requires Federal agencies with R&D budgets of at least $100 million to set aside a portion of their funds for funding R&D by US small businesses, and STTR requires those agencies with R&D budgets of more than a billion dollars to set aside funds for an agency-run commercialization program. Small businesses participating in the programs go through a three-phase process, where they receive monetary awards to assist them with early-stage R&D and prototyping (Phase I) and continued development (Phase II), and then may pursue an unfunded third commercialization phase.
The CRS report provides a detailed overview and history of the programs, and then reviews key issues with the programs, including research security, the eligibility of small businesses funded by venture capital, and agency and Small Business Administration/agency compliance. This September, lawmakers renewed both SBIR and STTR through 2025, adding new disclosure requirements that are intended to prohibit funding from flowing to small businesses that have ties to foreign countries of concern, including the People’s Republic of China.
Proposed NDAA Amendment Would Provide Free Cyber Training for Veterans and Military Spouses
According to NextGov, a proposed amendment to the 2023 National Defense Authorization Act (NDAA) would provide free cyber training to veterans and military spouses. The amendment is modeled after the Federal Cybersecurity Workforce Expansion Act, a bill that was introduced in June 2021. A report by the Senate Homeland Security Committee on that act noted the risk to national security of the ongoing dearth of qualified cybersecurity employees.
The program would be of no cost to eligible veterans and military spouses and would provide evidence-based training that would qualify for credit toward a degree at a higher education institution. The House passed its version of the 2023 NDAA in July, and the Senate expects to pass a version following the midterm elections.
NIST Announces Formation of the Internet of Things Advisory Board
The National Institute of Standards and Technologies (NIST) announced the formation of the Internet of Things (IoT) Advisory Board, a group appointed by the Department of Commerce to advise the Internet of Things Federal Working Group. NIST created the board in accordance with the National Defense Authorization Act of 2021. The board will advise Federal employees on policies that may inhibit or promote the IoT, the benefits IoT can provide to the United States, IoT opportunities and challenges for small businesses, and IoT-related international opportunities. For more information on the purpose of the board, the Federal Register notice is posted here.
