Friday Flash 11.06.20

The Election Explained

In less than two weeks, Coalition members will be treated to a post-election breakdown at the Coalition’s 2020 Fall Training Conference: Focusing On The Business Of Government. This virtual event takes place on November 17 – 18, and it features the Honorable Tom Davis, Partner at Holland & Knight, who will speak to members on both days of the event, providing detailed analysis and insights into one of the most consequential elections in our nation’s recent history.

An attorney and procurement expert by training, Tom is a former Member of Congress representing Virginia’s 11 Congressional District. After serving in local government and private practice in Virginia, Tom spent 14 years in the House of Representatives, during which, he chaired the Committee on Oversight and Government Reform. While in office, he crafted over 100 bills that ultimately were enacted.  Members will remember his work on the Services Acquisition Reform Act (SARA), which created the SARA review panel, on which, our very own Roger Waldron served, as well as the Federal Information Security Management Act (FISMA).  Tom also served as a director on the Metropolitan Washington Airports Authority (MWAA), and he currently is the Rector (chairman of the Board of Visitors) at George Mason University, where he serves a distinguished professor of Public Policy at the Schar School of Policy and Government.

Tom chaired the National Republican Congressional Committee from 1999 to 2002, and he possess a virtually unparalleled knowledge of politics and Capitol Hill. We are privileged to have the opportunity to hear him speak on both days of the event, providing details on the election in sessions entitled, “What Happened this Election and What Does It Mean?”  On the first day, Tom will review how the election results will impact government programs, policies, and operations. In particular, Tom will address the budget pressures post-COVID and the procurement challenges facing the agencies in the new year. On the second day, Tom’s discussion will include a briefing on what happens next with COVID legislation, how the election results will impact spending priorities. Tom also will address opportunities for reform.  As you can see, Tom is being very generous with his time and expertise, and we greatly appreciate his participation in these important sessions for our members.

After reviewing our current AGENDA, please click here to REGISTER. Thank you to our generous sponsors, including Title Sponsors, AvKARE and First Nation Group; Gold Sponsors, CACI, Golden State Medical Supply, SheppardMullin, and The Gormley Group; and Silver Sponsors, 3M, AvMEDICAL, BD, Ricoh, and SAIC.

Attend the 2020 Fall Conference for the Latest Developments from GSA, VA, DoD and More

We are less than two weeks away from the Coalition for Government Procurement’s 2020 Fall Training Conference: Focusing On The Business Of Government.  This virtual training event will take place on November 17-18 and we encourage you to check out the AGENDA - we are proud of the wide variety of topics available and speakers participating. 
 
Tom Davis, Partner at Holland & Knight and former 14-year Member of Congress representing Virginia’s 11 Congressional District, will be our Keynote Speaker on both days! His discussion both days will be, What Happened this Election and What Does It Mean? Government contractors across all industries will benefit from hearing his insights regarding the impact the election results with have on the federal government’s overall policy priorities, with a particular focus on procurement. His remarks on the second day, however, include a briefing on what the election results mean for the healthcare industry. 

The Coalition also is happy to announce that GSA Administrator Emily Murphy will be interviewed by Jason Miller of Federal News Network on 11/18! Among many topics, Administrator Murphy will be taking a retrospective look at evolution of GSA’s leading procurement programs over the last three years and how the agency is positioned for future growth and support in the federal market. 
  
Numerous panel discussions and topics will be also be available for your choosing, including: a Legal Panel and Healthcare Legal Panel; Section 889, Cyber, and Supply Chain Issues and Updates; a Policy Panel; GSA Systems and Consolidation Update; The DoD and VA Partnership Panel; VA Logistics and Procurement Panel; GSA Leadership Panel; and more! 

Both days will conclude with your pick of a wide variety of Business Intelligence Sessions, including on day one: Office Products; Industrial Products; Furniture; Services, IT; DLA MSPV and ECAT Programs; VA Pharmaceuticals; Non-Expendable Equipment Program; and on day two, VA MSPV Program; VA Federal Supply Schedules; Prosthetics and Biologics; DoD Pharmaceuticals; GAO Insights on VA Medical Supply Chain – MSPV and FSS; Update from the SSAC; GWAC/MAC; and Global Supply/4PL. 
 
Thank you to our generous sponsors, including Title Sponsors, AvKARE and First Nation Group; Gold Sponsors, CACI, Golden State Medical Supply, SheppardMullin, and The Gormley Group; and Silver Sponsors, 3M, AvMEDICAL, BD, Ricoh, and SAIC 

 

Last Chance to Submit a 2020 EIP Award Nomination

Thank you to everyone who submitted nominations this year for the 2020 Excellence in Partnership (EIP) Awards which will be announced during our two-day virtual Fall Conference on Nov 17-18.   

The EIP Awards honor individuals and organizations in the acquisition community who have made significant contributions to the procurement system by delivering best value and meeting agency missions. Historically, these awards have recognized individuals, organizations, and contractors involved in procurement with GSA, VA, DOD, DHS, and other government agencies.     

This year’s category awards include:   

  • Lifetime Acquisition Excellence Award     
    • Presented to an individual in the contracting community (government or industry) for demonstrating a life-long commitment to advancing “common sense in government procurement.”     
  • Acquisition Excellence Award     
    • Presented to an organization or individual (government or contractor) for outstanding performance in meeting the mission-critical needs of a Federal agency through a government contract.      
  • Excellence in Innovation Award     
    • Presented to an organization or individual (government or contractor) for creating innovative solutions and/or an innovative process for a Federal agency that improves and facilitates mission performance.      
  • Advocating for Veterans Award     
  • Presented to an organization or individual (government or contractor) for promoting and executing a successful program that supports veterans.     

Click here to submit your nomination for a 2020 EIP Award. Nominations are due by Friday, November 6, 2020. If you have questions or need assistance regarding the EIP Awards, please contact Michael Hanafin at mhanafin@thecgp.org. 

 

GSA Releases Federal Marketplace Strategy Update

This week, the General Services Administration released an update on their Federal Marketplace (FMP) Strategy. The Fall 2020 release contains the latest developments concerning GSA’s key initiatives including the Commercial Platforms Initiative, Schedules Consolidation, and Catalog Management. 

  • Commercial Platforms Initiative – GSA launched the proof of concept in August 2020 with three e-marketplaces. 
  • Schedules Consolidation – Phase III of the consolidation is underway which is focused on merging contracts for existing contract holders. 
  • Catalog Management – GSA is set to release the Verified Products Portal in November that will host authoritative product content from manufacturers and wholesalers. 

GSA Publishes RFI on SIP Replacement

As a part of the Federal Marketplace Strategy, the General Services Administration (GSA) seeks to modernize its catalog management infrastructure and develop the Common Catalog Platform (CCP), with the intention of replacing the Schedule Input Program (SIP).  As a next step in this effort, GSA has released a Request for Information (RFI) for MAS contractors to collect feedback on its catalog management infrastructure and develop requirements for the future CCP. The RFI asks for input on current and future state of catalog management infrastructure to better inform CCP requirements. The RFI is intended for MAS contract holders who directly engage in catalog management activities. See the GSA Interact post about the RFI here. 

 

COFC Bid Protest Decision on SDVOSB and AbilityOne  

The Court of Federal Claims (COFC) released a decision in a bid protest of a Department of Veterans Affairs (VA) contract for prescription eyeglasses. The contract involves a dispute between service-disabled veteran owned small businesses (SDVOSB) and the AbilityOne program. The case involves the interpretation of the AbilityOne program and the Veterans Benefits Act of 2006, and the Court finds that the preference for SDVOSB overrides the preference for the AbilityOne program. The court granted the protest of the SDVOSB and granted a permanent injunction for the VA transitioning the contract to the AbilityOne program. 

 

GSA Considering CMMC Requirement for Polaris GWAC 

Federal Computer Week reported that General Services Administration’s (GSA) next generation small business Governmentwide Acquisition Contract (GWAC), Polaris, will include Cybersecurity Maturity Model Certification (CMMC) requirements. Polaris will target woman-owned and HUBZone small businesses, but is not limited to those firms, as GSA wants to expand its industry partner base. GSA has already included CMMC requirements into Streamlined Technology Application Resource for Services (STARS) III request for proposals (RFP). There is expected to be a draft RFP for Polaris released in December. 

 

Submit Your Input on the Polaris Small Business GWAC Today 

This week, GSA’s Polaris team met with members of the IT/Services Committee to gather industry input on the acquisition strategy for the future Polaris Small Business GWAC.  The Coalition sincerely appreciates GSA for reaching out to members on their next generation small business government-wide IT contract.  The specific questions that GSA has requested member feedback on are: 

  1. GSA would like feedback on previous GWAC source selection strategies (Alliant 2, Alliant 2 Small Business, VETS 2, 8(a) STARS III). How was your experience with the scorecard approach utilized on Alliant 2, Alliant 2 Small Business and VETS 2; including opinions on the scoring criteria used. 
  2. GSA is also looking for feedback on the potential use of NDAA 2019 Section 876 authority, which will allow GSA to award Polaris without consideration of price. From an industry perspective, are there any concerns relating to the use of this authority (such as with the master contract award or possible impact on post-award task order competitions or performance)? 
  3. GSA understands that many industry partners may hold a GWAC in addition to other IDIQs. What are some of the main factors that go into contractor’s decisions about which contract vehicle to market for a specific opportunity? What do you recommend GSA do with Polaris to make it a more appealing choice for both you and your customer? 
  4. Considering your experience with GWACs and other IDIQs, are there pain points with contract administration you’d like GSA to consider changing in Polaris? 
  5. For an effort such as this, how much lead time does industry generally need to prepare after the Draft RFP is released? 

Members may send their input on these questions to Aubrey Woolley at awoolley@thecgp.org and we will share the consolidated feedback to GSA. 

 

FPDS.gov to Require Multifactor Authentication in Early December 

The General Services Administration (GSA) posted a notice on Interact that the Federal Procurement Data System (FPDS) will be implementing multifactor authentication (MFA) through login.gov on December 5, 2020. After this date, all FPDS users with an individual account will be required to use MFA to access the site. Organizations will no longer be able to use one account for multiple users, as individual accounts will be required by login.gov. Users can create a login.gov account here, and should use the same email address as their FPDS.gov account. Users must also have a working phone number to receive a security code. The U.S. government requires use of MFA for all federal government websites. For more information about MFA, click here. 

Legal Corner: What You Need to Know About the Presiden’ts September 22 “Divisive Ideology” Executive Order

By Sheppard Mullin’s GovCon Team*

On September 22, 2020, the President of the United States issued an Executive Order (“EO”) banning federal contractors from conducting training “based on race and sex stereotyping,” as well as training that “portrays certain races as oppressors.” The EO targets “divisive ideologies,” and explains that it became necessary “to combat a radical ideology that has infiltrated diversity training throughout American institutions.” “Federal contractors,” the EO states, “will not be permitted to inculcate such views in their employees.” In light of the extensive efforts contractors have been making to promote diversity and inclusion in their organizations, we offer the following Q&A to help navigate what is most definitely an unprecedented EO.

What Does The EO Ban?

A. The EO bans the training of “divisive concepts.” The EO defines divisive concepts to include any notions that:

(1) one race or sex is inherently superior to another race or sex;

(2) the United States is fundamentally racist or sexist;

(3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

(4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;

(5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex;

(6) an individual’s moral character is necessarily determined by his or her race or sex;

(7) 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;

(8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or

(9) 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 term “divisive concepts” also includes any form of race or sex “stereotyping” or any form of race or sex “scapegoating.”

While the definition does not include a comprehensive list of banned training concepts, reading between the lines, and coupling that reading with (a) the examples the White House Fact Sheet provides and (b) the terms the OMB has highlighted as “red flags,” it would appear the following concepts are likely to draw the attention of the Department of Labor:

  • Implicit or explicit bias
  • Historical underpinnings of sexism or racism
  • Affirmative action based on race or sex
  • Blame or responsibility for racism or sexism
  • The singling out of any race or sex as having received any special treatment or privileges
  • The assignment to a race or sex of a stereotype or “character traits, values, moral and ethical codes, privileges, status, or beliefs” 
  • Protecting any class of persons based on their race or sex

These concepts are most likely to draw the attention of DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) if the training materials and/or communications surrounding the training include words on the DOL dirty-words list: “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.” According to the DOJ, “when used in the context of diversity training, these terms may help to identify the type of training prohibited by the E.O.”

Does The EO Ban All Diversity and Inclusion (“D&I”) Training?

A. No. We suspect most of a contractor’s D&I training will be unaffected by the EO. The White House Fact Sheet accompanying the EO notes that diversity training is permitted where “no one feels marginalized because of his or her race or sex.” While that admittedly is an impossibly vague and unhelpful standard, the EO itself makes clear it does not

prevent agencies, the United States Uniformed Services, or contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order.

The EO also makes clear that “[n]othing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts [identified in the EO] in an objective manner and without endorsement.”

That being said, the EO will impact some of the initiatives some contractors currently are undertaking to provide programs that discuss diversity, inclusion, racial justice, implicit bias, and explicit bias. The EO is written very broadly and very vaguely, and likely will be read to cover some training many companies currently are providing, especially some implicit bias / unconscious bias training.

My D&I training discusses the implicit and unconscious biases all people have. Will that training be impacted by the EO?

A. Of all the training likely to be impacted by the EO, implicit/unconscious bias training is at the top of the list. Indeed, the term “unconscious bias” is on the list of OMB’s dirty words, i.e., words that “may help to identify the type of training prohibited by the E.O.”

According to DOL, unconscious or implicit bias training is banned if it suggests that people may be unconsciously biased by virtue of their race or sex. As that pretty much describes what most/all implicit bias training is about, it’s not easy to visualize what compliant implicit bias training would look like.

Here is the actual language from the DOL memorandum: 

Unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously. Training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.

Walking the line between training that is “designed to inform” and training that implies that an individual may be unconsciously biased will be no easy task. 

The task is further complicated because the rule prohibits suggesting “either that the United States is an inherently racist country or that any race or ethnicity is inherently racist.” Here again, suggesting that people are unconsciously biased against certain races comes rather close to suggesting people are inherently racist.

This background notwithstanding, there does seem to be some room to maneuver so long as one maneuvers carefully. One approach is to discuss implicit bias as something that impacts every human being, regardless of race, as opposed to a given race, sex, or ethnicity. That would not seem to run afoul of the rule as written, although it still could put up a red flag.

When Does The EO Go Into Effect, And How Will It Find Its Way Into My Contracts?

A. Much of the EO is effective immediately. For example, DOL’s compliance hotline is up and running, and as of October 7, DOL already has received and started investigating complaints against unnamed contractors. Section 4 of the EO, which requires agencies to utilize the new contract clause, however, takes effect 60 days from the date of the EO. The EO eschews the statutory rulemaking process, and therefore the contract clause can appear in new awards on this expedited timeline (60 days as opposed to 12+ months). That means, beginning November 21, 2020, Contracting Officers will be required to insert the contract clause in new contracts. The plain text of the EO does not require Contracting Officers to modify existing awards, but agencies may choose to do so nonetheless.

Interestingly, the EO does not direct the FAR Council to engage in a rulemaking to develop a new FAR clause. Instead, it directs “all Government contracting agencies” to include “in every Government contract” the specific language from Section 4. Given the lack of a new FAR clause, it’s likely contractors will see this language inserted into their contracts as an agency-level clause (though the mechanics of implementation are up to each agency).

Finally, keep in mind that while the most burdensome elements of the EO kick into effect on November 21, 2020, the DOL OFCCP maintains the right to conduct investigations into pre-November 21 activities pursuant to its existing investigative authority under EO 11246.

Does The EO Apply To Me? Who Does It Cover? Are There Any Exceptions?

A. The EO likely does apply to you. The EO states that all contracts are covered except those “exempted in a manner provided by” Section 204 of the Equal Employment Opportunity Executive Order. (E.O. 11246, Sept. 24, 1965) DOL has not released guidance on the exemptions applicable here, but under its Section 204 authority, DOL has exempted the following classes of contracts (among others) from the Equal Employment Opportunity requirements:

  1. Transactions of $10,000 or less;
  2. Contracts for work outside the United States (and performed by employees not recruited in the United States);
  3. Contracts with State or local governments; or
  4. Contractors who are religious entities.

Remember, though, if this clause makes its way into even one Federal award, it applies company-wide. Also, as discussed below, it is likely the clause will flow down to subcontractors from primes. Therefore, it’s unlikely any government contractor (whether typically a prime contractor, subcontractor, or lower tier subcontractor) will avoid its reach. Even companies that never have accepted a single Federal contract clause previously may see this prohibition soon.

Does The EO Flow Down To My Subs? Will I See It Flowed Down By My Primes?

A. Yes and yes. Prime contractors are required to include the clause in “every subcontract or purchase order” with every subcontractor andvendor. This language represents unprecedented reach for a government procurement clause. Typically, government contractors only are required to flow down contract clauses to subcontractors, not vendors; and certain subcontractors (e.g., commercial item subcontractors) only have to accept a limited number of flowdowns. Clearly, this EO was drafted to reach as many companies as possible.

How Will The Government Audit/Investigate Compliance?

A. The OFCCP has set-up a hotline (both phone and e-mail) to receive complaints alleging violations of the EO. The hotline allows for both firsthand complaints as well as third-party complaints. Upon receipt of a Complaint, the OFCCP immediately will investigate the allegations in accordance with its “standard procedures.” However, unlike other audits performed by the OFCCP, an investigation for violations of this EO likely will be fairly swift as it will be heavily focused on documents reflecting training given and/or available to employees. Additionally, it will not be as data driven as other OFCCP audits; instead, it will be focused on how the complainant subjectively feels and/or how others felt when receiving the training. 

DOL’s enforcement here likely will align with the Agency’s broader efforts to scrutinize companies’ heightened focus on diversity and inclusion programs. To get a sense of what those broader efforts look like, take a look at DOL’s actions with regard to Microsoft.

What Are The Risks Of Non-Compliance?

A. The EO establishes harsh penalties for non-compliance, and provides no way to gauge the level of due process that will be built into the penalty scheme. According to the EO, “. . . In the event of the contractor’s noncompliance with the requirements of paragraphs (1), (2), and (4), or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order of September 22, 2020, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts . . . .” The EO goes on to direct the OIG to conduct audits to ensure compliance with the EO’s provisions.

The EO Called for the Issuance of a Request for Information (RFI). Should I respond?

A. The EO called for the OFCCP to publish “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.” The RFI went public October 22, 2020. According to the RFI, “there are no adverse legal consequences for choosing not to participate in this request for information.” The RFI gives companies and individuals until December 1, 2020 to respond.

To incentivize contractors to share their training materials with the Government, the RFI promises “compliance assistance as requested to Federal contractors and subcontractors that voluntarily submit such information or materials.” The RFI also promises that the OFCCP

will, consistent with law, exercise its enforcement discretion and not take enforcement action against Federal contractors and subcontractors that voluntarily submit information or materials in response to this request for information . . . , provided that such contractor or subcontractor promptly comes into compliance with the Executive Orders as directed by OFCCP.

However, if the Government decides a contractor’s training materials are not compliant and the contractor fails to take prompt corrective action, the “OFCCP may take enforcement action against the contractor or subcontractor if OFCCP later receives the contractor or subcontractor’s materials through a separate source, such as a neutrally scheduled audit, in connection with a complaint, or if submitted by an employee in response to this RFI.” Neither the RFI nor the underlying EO provides any standards by which the OFCCP will evaluate the materials it receives through the RFI process.

In short, in an effort to convince companies to self-disclose, the RFI creates a race to the OFCCP’s steps between employees and employers. While being the first to share training materials could prevent an enforcement action, it also could put a target on the submitter’s back. And if the contractor does not agree with the OFCCP’s recommendations, the contractor could find itself in a tough spot.

It’s hard to assess whether companies will take OFCCP up on its offer of possible “enforcement discretion” with regard to potentially violative in-house training. Making matters worse, although the EO states OFCCP will treat materials submitted as confidential per Exemption Four to the Freedom of Information Act “to the maximum extent permitted by law,” nothing precludes the DOL from taking the position that the training materials submitted do not meet the legal definition of “trade secrets and commercial or financial information” warranting protection under Exemption Four. Unfortunately, looking at the 24 comments on the RFI published to date provides no meaningful insight. Instead, rather than addressing the substantive issues of the RFI, all 24 simply complain about “critical race theory” generally, which, interestingly, is not even a term mentioned in the EO or the RFI.

CONCLUSION/PATH FORWARD

Every contractor and subcontractor currently is struggling to evaluate what to do about the Executive Order, if anything. Obviously, companies are in a tough spot here. The EO will make it harder to meet the demands of employees, customers, and other stakeholders that we all take meaningful action to right unfairness and injustice. In this complicated context, here is a list of potential steps (in no particular order) a prime contractor or subcontractor might take to mitigate risk.

  • Develop a long-term plan to review current training to identify potentially violative components.
  • Evaluate the language used to described your programs. Again, here are the terms the DOL claims will “help to identify the type of training prohibited by the E.O.”: “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.” While these terms are not banned, they clearly will signal a potential non-compliance to an agency reviewer.
  • Review current training and related communications to identify “red flag” words, and consider replacing those words with equally impactful, non-red-flag words. For example, consider focusing on fairness, equity, and inclusion for all rather than focusing on a specific group.
  • Review your hotline and hotline communications to incorporate language that encourages potentially aggrieved employees to notify the Company in the first instance rather than going straight to the Government. Just remember, do not suggest in any way that they do not have the right to go to the Government directly.
  • Ensure required posters are hung appropriately.
  • Ensure unions are notified appropriately.
  • Craft flow-down language for subcontractors and vendors.
  • Craft a flow-down representation for vendors delivering diversity/inclusion training through which those vendors can represent their training meets the requirement of the Executive Order.
  • Evaluate the pros and cons of responding to the OFCCP’s RFI.
  • Evaluate ongoing programs to provide opportunities to under-represented classes of employees.
  • Evaluate implicit/unconscious bias training to ensure it focuses on the inherent biases of all people as opposed to people of a certain race, gender, or ethnicity.

These steps will not eliminate risk, but they should reduce the likelihood a company ends up on the receiving end of a DOL OFCCP hunt for “divisive ideologies.”

*This article was prepared by Sheppard Mullin attorneys Jonathan Aronie, Townsend Bourne, Denise Giraudo, Fatema Merchant, Anne Perry, and Ryan Roberts. For more information, please visit us at https://www.sheppardmullin.com/governmentcontracts. NOTE to any Government official reading this article: The observations herein are offered as part of a larger academic discussion, in an objective manner, and without endorsement. No one should feel “discomfort, guilt, anguish, or any other form of psychological distress on account” of this article.

 

Off the Shelf: Section 889, CMMC, and the NDAA 

This week on Off the Shelf, Jon Etherton, president of Etherton and Associates, provided a briefing on key procurement policy provisions in the Senate and House versions of the National Defense Authorization Act (NDAA). 

Etherton outlined the current status of NDAA negotiations between the House and Senate and the process leading to the conference, and also shared his thoughts on current state of play regarding current implementation of Section 889 and CMMC. 

Finally, Etherton outlined the Congressional timelines and politics of the continuing resolution, the budget and the potential impact of the election. 

Click here to listen to the full show. 

 

DoD Extends Telework Capability into 2021 

Federal Computer Week reported that the Department of Defense (DoD)  has extended its telework tool, Commercial Virtual Remote (CVR) until June 2021. According to John Sherman, DoD’s principal deputy Chief Information Officer (CIO), DoD plans to make the CVR a permanent capability by summer 2021. DoD is currently working to create an Office 365 with higher security capabilities. Currently, the CVR has a cloud security level of Impact Level 2, but the new capability will need to be an Impact Level 5. Impact Level 5 allows communication between access levels and with users outside of the DoD Information Network and allows users to bring their own approved devices. DoD originally released the CVR to accommodate telework, due to the COVID-19 pandemic, but DoD is now planning a long-term capability for telework. 

DoD Reinforces Commitment to CMMC-AB 

According to Fedscoop, the Department of Defense (DoD) implemented a statement of work (SOW) in a no-cost contract issued to the Cybersecurity Maturity Model Certification Accreditation Body (CMMC-AB). Discussions over the contents of the SOW have been on-going since the summer. The SOW replaces the initial memorandum of understanding (MOU), which outlined the relationship between DoD and the CMMC AB. Responsibilities and authorities have been the center of the negotiations surrounding the SOW. According to a DoD spokeswoman, the document is in the final stages of signature. Katie Arrington, lead CMMC Official and DoD Chief Information Security Officer for Acquisition and Sustainment, vowed to make the SOW fully transparent once it is fully executed.  

Space Development Agency’s Award Demonstrates FAR Flexibility 

On November 3, Federal News Network reported on the Mission Systems Engineering and Integration (MSE&I) contract award by the Department of Defense’s (DoD) new Space Development Agency (SDA). According to SDA Deputy Director Ryan Frigm, this contract award process showed how flexible and speedy the Federal Acquisition Regulation (FAR) can be in these situations. The total time from final request for proposals to contract award took only three and a half months. The award is one of four contracts that SDA is planning to give to build Tranche 0 of the National Defense Space Architecture, which will improve the military’s ability to track threats and transmit data to battlefields.  

 

Seeking Member Feedback on CMMC Interim Rule  

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 send your input to Sean Nulty at   snulty@thecgp.org by Friday, November 13.