Friday Flash 12/16/22

TDR: Common Sense Policy Supporting the MAS Marketplace!

This is the second in a series of blogs focusing on the policy and program value of TDR.

Over the last 30 years, GSA’s Multiple Award Schedule (MAS) program has evolved from exclusively focusing on static, contract-level pricing to driving pricing, performance, and best value through competition at the task and delivery order level for agency specific requirements. Over the course of this evolution, it has become apparent that the Commercial Sales Practices (CSP) and Price Reduction Clause (PRC) are relics of a bygone era.

The CSP and PRC made sense at a time when the MAS program was a closed, mandatory-for-use program, had a limited number of contractors, and contract-level pricing reigned supreme as MAS contract terms severely limited/restricted the ability of contractors to lower prices and compete for agency requirements. Today, the CSP and PRC are inconsistent with a dynamic MAS marketplace structured to drive competition and value at the task order level, and as such, can be viewed as anticompetitive.

To provide perspective on the significant evolution of the MAS program towards its present-day policy and management focus on competition, transparency, and best value at the task order level, set forth below is a chronology of the strategic and operational enhancements that have been implemented since the mid-1990’s.

The 1990’s – Pro Competition Advances

  • Mandatory to Non-mandatory: Up until the mid-1990’s, the MAS program was a mandatory source for federal agencies, essentially serving as governmentwide requirements contracts. GSA modified MAS contract terms, and the Federal Acquisition Regulation (FAR) followed suit, making the MAS a non-mandatory use source. The policy goal was to establish a wholly competitive marketplace whereby customer agencies could utilize other sources if the MAS program could did not meet their needs. Since this change the MAS program has grown in customer usage and its ability to meet the unique missions of GSA’s customer agencies.
  • Continuous Open Seasons: GSA expanded the timeframe for submitting new offers from 1-2 months, with a closing date for receipt (the original open season) each year, to a continuous open season model with no closing date, allowing for the submission of offers every business day of the year. Continuous open seasons eliminated a barrier to entry into the market, providing agencies ongoing access to offerings from the commercial market, and in so doing, incented small business participation, competition, and innovation. This change resulted in a significant increase in the number of contractors, including all socio-economic categories.
  • Evergreen: In conjunction with continuous open seasons, GSA also modified the term of MAS contracts, allowing for a five-year base year with three five-year options. Prior to this change, MAS contracts in most cases had a one-year base term with a set of one-year option periods, for a total contract term of up to five years. This change increased contract coverage for customer agency usage.
  • Streamlined Ordering Procedures (Best Value): FAR 8.4 was amended to streamline the ordering procedures allowing for competitive comparisons and pricing flexibility for contractors responding to customer agency order quantities/requirements. The revised regulations also allowed for best value trade-off decisions for orders, listing a set of factors agencies could consider when conducting trade-off analysis for order selection. The update to FAR 8.4 significantly decreased the number of separate, repetitive RFPs. It also reduced procurement cycle time from an average of 260 days to an average of approximately 30 days.
    • Price discounts at the order level: The ordering procedures and underlying contract terms (Price Reduction Clause) also were modified to allow MAS contractors to offer price reductions/discounts from their MAS contract-level pricing in response to customer agency order level requirements. The revised ordering procedures and contract terms created a competitive, order-level market where none existed previously. This change prompted higher task order discounting and increased competition.
    • Blanket Purchase Agreements: The revised ordering procedures and contract terms also authorized customer agencies to establish Blanket Purchase Agreements (BPAs) at the order level for recurring requirements. This new flexibility allowed agencies to leverage recurring requirements to enhance competition, pricing, and value at the order level. The establishment of BPAs significantly streamlined ordering time for recurring requirements.
  • Services and solutions: The scope of the MAS contracts expanded to include commercial services and solutions, including professional services. As part of this expansion, GSA established services ordering procedures that included notice and competition requirements for customer agencies seeking quotes in response to services statements of work. This change in scope led to an increased ability for the MAS to meet customers’ agency requirements. Services now represent over 60% of MAS sales.
  • GSA Advantage: GSA launched GSA Advantage, an electronic catalog hosting MAS contract items, including associated pricing, delivery terms, and product descriptions. GSA Advantage provided a new, transparent channel for customer agencies conducting market research in advance of order placement. Not only is GSA Advantage a key market research tool, but it also provides customer agencies with the ability to place orders directly with MAS contractors. The launch of GSA Advantage was the first Government e-commerce system which continues to grow every year.
  • eBuy: GSA launched eBuy, an electronic Request for Quote (RFQ) tool. eBuy provides customer agencies with the ability to post RFQs seeking quotes from MAS contractors. In turn, MAS contractors can view the RFQ posting and respond directly to customer agencies with their quotes. This change increased transparency and significantly streamlined large agency requirements.

The 2000’s – Solidifying Advances in Competition

  • Task/Delivery Order Competition: Congress passed legislation mandating certain competitive notice requirements for the placement of orders under the MAS program. These competition requirements were incorporated in FAR 8.4 as a comprehensive update to the MAS ordering procedures. Among the key requirements, customer agencies must provide notice and an opportunity to compete for all MAS contractors for task orders exceeding the simplified acquisition threshold or, alternatively, notice can be provided to less than all MAS contractors so long as it is provided to as many such contractors as practicable to reasonably ensure receipt of at least three offers. These competition requirements promoted acquisition transparency.
  • eBuy: The comprehensive re-write of the order procedures specifically cited eBuy as a method for providing notice to all MAS contractors for purposes of task order competition. Providing notice through eBuy further increased the transparency of agency requirements.
  • Blanket Purchase Agreements: The comprehensive re-write also addressed competition and notice for BPAs. This continued regulatory support for MAS BPAs transformed competition, pricing, best value at the order level. Today BPAs account for approximately half the dollar volume under the MAS program, close to $20 billion of the $40 billion in annual purchases through the program. This change significantly increased BPA competition under the MAS.
  • Small Business Set-asides: Congress authorized small business set-asides at the order level, allowing customer agencies to focus market research and subsequent RFQs on small business MAS contractors. In turn, customer agencies receive credit towards their socio-economic goals for orders placed with small businesses. The authorization of set-asides at the order level promotes small businesses while enhancing agency customer access to the commercial market. The positive impact is clear: through focused competition among small businesses, the MAS program consistently exceeds 30 percent of annual purchases/spend going to small businesses. The authorization of small business set-asides increased opportunities for small business contractors.
  • Order Level Materials: GSA implemented Order Level Materials (OLMs), providing MAS contractors the ability to include ancillary items as part of a total service solution in response to customer agency statements of work. OLMs enhance competition and increase efficiency by providing flexibility to include miscellaneous, non-contract items as part of an overall best value solution to meet customer requirements. The availability of OLMs streamlined buying solutions for customer agencies.
  • Schedules Consolidation: Over the last four years, GSA worked with MAS contractors to consolidate their MAS contracts, eliminating unnecessary barriers to entry. Consolidating MAS schedules eliminated unnecessary, duplicative paperwork for contractors and GSA. It also promoted transparency and competition for customer agencies, reducing complexity and enhancing market research opportunities. The consolidation of the MAS enables users to have access to industry’s full line of services and products under one MAS contract.

These MAS advances/enhancements have been built upon each other, resulting in a program that is structured to deliver best value commercial services, solutions, and products through transparent competition for BPAs, task orders, and delivery orders. The updated MAS contract structures, regulations, systems, practices have created a dynamic, competitive MAS marketplace. The changes are important because customer agencies care about competition and value at the order level. Competition has driven the growth of the program. In the early 1990s, before GSA began its journey towards MAS competition, transparency and best value, the MAS program accounted for approximately $3 billion in annual purchases. In FY22, the MAS program accounted for approximately $40 billion in purchases by customer agencies. The significant growth in the program reflects the value customer agencies and MAS contractors place in flexibility, transparency, competition, and best value at the order level.

In sum, TDR responds to, and reflects, this reality. It focuses on transactions at the order level, the most relevant, actionable data for GSA, customer agencies, and MAS contractors. Although the PRC once served a predominant purpose, today, to a large extent, it simply is disconnected from the program. For this reason, GSA is correct to expand TDR as an option across the entire program to support category management, enhance competition, and deliver best value.

Coalition Holds Briefing on OASIS+ RFP

The Coalition held a virtual meeting on this Thursday, December 15 on the OASIS+ draft Request for Proposal (RFP) with Tiffany Hixson, Assistant Commissioner for the Office of Professional Services and Human Capital Categories. The slides from Tiffany’s OASIS+ briefing are posted here.

As part of its work on OASIS+, the Coalition plans to submit comments based on member feedback. The deadline for feedback is close of business, Wednesday, December 21, 2022. Please submit all feedback or questions on the working group to the Coalition’s Joseph Snyderwine at jsnyderwine@thecgp.org.

Congress Averts Shutdown, Sets Sights on Omnibus Bill

On Thursday afternoon, the Senate passed a continuing resolution funding the government through December 23, which provides Congress additional time to pass an omnibus spending bill which would fund the Federal Government through September 30, 2023. According to Roll Call, Senate Appropriations Chairman Patrick J. Leahy (D-VT) announced that negotiators had “reached a bipartisan, bicameral framework” after both parties agreed to a $787 billion topline. Similar statements were released by House Appropriations Chair Rosa DeLauro (D-CT) and Senate Appropriations ranking member Richard Shelby (R-AL). Senator Shelby expects the final legislation to be finished on December 23, averting a government shutdown over the holidays.

2023 NDAA Passes Senate

Politico reports that the Senate passed the FY2023 National Defense Authorization Act (NDAA) late Thursday evening in an 83-11 vote. The yearly defense spending bill passed the House 350-80 last week and now heads to President Biden’s desk, where it is expected to be signed into law. The bill appropriates $857.9 billion to national defense, an increase of $45 billion over the President’s initial budget request.

Prior to passing the bill, the Senate rejected two amendments that, had they passed, would have required returning the bill to the House. The first, from Senators Ron Johnson (R-WI) and Ted Cruz (R-TX), would have reinstated service members who were separated for refusing to comply with the Department of Defense’s (DoD) COVID-19 vaccine mandate. As passed, the bill ends the mandate for current service members. The other failed amendment, from Senator Joe Manchin (D-WV), would have accelerated the permitting process for new energy infrastructure.

Among the bill’s appropriations are a 4.6 percent pay raise for military services members and the DoD workforce; $800 million for security assistance to Ukraine ($500 million more than the Biden administration requested); and authorizations for additional munitions, aircraft and vehicles, including five F-35A fighters, 15 Arleigh Burke-class destroyers, and the Columbia-class submarine program. On the policy side, the bill sets manpower levels for the armed services, requires the creation of a joint force headquarters for the U.S. Indo-Pacific Command in that region, and allows DoD more latitude to grant contractors price adjustments to combat inflation.

GSA Releases Commercial e-Commerce Platforms RFP

On Tuesday, December 13, the General Services Administration (GSA) released the final Request for Proposal (RFP) to expand its Commercial Platforms program. Conceived as part of the 2018 NDAA, the program is designed to allow Government Purchase Card holders to buy commercial items through existing e-commerce platforms. Participating platforms must implement additional features for government users that aid market research, prevent the purchase of prohibited items, and provide other important compliance and pricing information. The program can also only be used to buy up to $10,000 worth of items per order, the threshold for Federal micropurchases.

The current RFP comes after three providers—Amazon Business, Fisher Scientific, and Overstock—participated in a pilot version of the program with customers from more than 25 agencies. The pilot achieved $11.7 million in sales in its first year and customer satisfaction ratings of 90 percent. The release of the RFP will now allow other providers to participate through five-year contracts, with a one-year period of performance and four option periods. GSA plans to award multiple no-cost contracts based on a two-phase competition in order to build a competitive marketplace and meet agencies’ demand for greater use of e-commerce. Questions regarding the RFP must be submitted to GSA no later than January 5, 2023, and first-phase proposals are due on January 27.

DoD Awards Cloud Services Contract, Task Orders to Start Within Two Weeks

Federal News Network reports that the Department of Defense (DoD) has awarded its enterprise cloud services contract to Google, Microsoft, Amazon Web Services, and Oracle. The $9 billion, 5.5-year Joint Warfighting Cloud Capability (JWCC) vehicle, composed of four individual IDIQ contracts for each vendor, will allow DoD to purchase cloud services at all classification levels. Although it will not abrogate existing DoD cloud procurement vehicles, it is expected to centralize cloud buying. Speaking at a defense industry event last Thursday, Lauren Knausenberger, the Chief Information Officer of the Air Force, said that the Air Force will have to wait to use JWCC until it can build a “front door,” but that the contract would eventually decrease cloud computing prices, improve interoperability, and make up an expanding portion of Air Force cloud buy.

JWCC replaces DoD’s previous cloud vehicle, the Joint Enterprise Defense Infrastructure contract (JEDI). Structured as a single-vendor contract, DoD canceled JEDI last July amidst protests from multiple excluded vendors and, according to the department, changes in the cloud marketplace which made it obsolete. DoD officials have described JWCC itself as a bridge that will cover the department’s cloud needs until it can establish a longer-term vehicle that will undergo full and open competition.

Previously, JWCC was expected to include a novel automated system for assigning task orders to vendors, housed in the Defense Information Systems Agency (DISA), based on services, prices, and requirements. Last Friday, however, DoD announced that the vehicle would allow vendors to submit traditional bids at the task-order level. While officials believe the change will create greater competition and better pricing, it will increase the time between order receipt and the start of work from a few days to weeks or months. Officials stated that JWCC would begin accepting task orders before December 23.

GAO Evaluates Cybersecurity of Healthcare IoT and Medical Devices

On December 1, the Government Accountability Office (GAO) published a report on cybersecurity related to the nation’s critical infrastructure, including Internet of Things (IoT) and operational technology (OT) devices and systems. IoT can be defined as “technologies and devices that allow for the network connection and interaction of a wide variety of ‘things.’” OT refers to “programmable systems or devices that interact with the physical environment.” Attacks against IoT and OT infrastructure pose significant risk to national security, as illustrated by ransomware attacks that targeted healthcare and other services during the COVID-19 pandemic.

The IoT Cybersecurity Improvement Act of 2020 included provisions for GAO to report on IoT and OT cybersecurity efforts. The report focuses on Federal IoT and OT cybersecurity initiatives, as well as actions that lead agencies took to enhance cybersecurity efforts. It also identifies guidance for addressing IoT and OT cybersecurity. In the report, GAO reviewed three critical infrastructure sectors: healthcare and public health, energy, and transportation systems.

The Department of Health and Human Services (HHS) and Food and Drug Administration (FDA) representatives stated that medical devices are considered critical IoT and OT for the healthcare and public health sector. HHS and FDA cybersecurity efforts were primarily focused on medical devices, with FDA leading medical device risk assessments for IoT and OT. The HHS Assistant Secretary for Preparedness and Response (ASPR) works closely with FDA, the Cybersecurity and Infrastructure Security Agency (CISA), and the Federal Bureau of Investigation (FBI) to communicate threat information related to IoT medical devices through a weekly newsletter, as well as cyber bulletins and briefings in response to specific cyber threats. The Center for Devices and Radiological Health within FDA developed guidance on the cybersecurity of IoT medical devices that the agency oversees. The guidance includes a Medical Device Safety Action Plan, a Playbook for Threat Modeling Medical Devices, and pre- and post-market guidance for management of cybersecurity for manufacturers of medical devices.

GAO found that while HHS has ongoing risk assessment activities related to medical devices, the department “has not conducted a sector-wide risk assessment specific to IoT and OT.” GAO recommended that HHS conduct this broader assessment. However, HHS noted that the organization responsible for risk management assessments does not have the capacity to expand its IoT missions outside of medical devices.

FITARA 15.0 Scores Released

The hearing for the 15th edition of the House Oversight and Reform Committee’s FITARA (Federal Information Technology Acquisition Reform Act) Scorecard occurred on December 15, reports Meritalk. The scorecard grades the twenty-four largest federal government agencies for improvements in IT and cybersecurity.
This year, the scorecard added a grade for the transition to the General Services Administration’s (GSA) Enterprise Infrastructure Solutions (EIS) communications services contracts. Most agencies received a failing grade in that category, which set the pass/fail standard at a 90 percent completion rate. All agencies received an overall passing grade with seven agencies improving their grade and the others holding steady.

VA Developing “Infrastructure 2.0 Plan”

Federal News Network reports that the Department of Veterans Affairs (VA) is working on a plan to update its network of healthcare facilities nationwide. The plan is being referred to as “Infrastructure 2.0.” As a part of this effort, the VA is updating its market assessments that were the basis of the original recommendations made to the Asset and Infrastructure Review (AIR) Commission. The VA is updating their market assessments because they were conducted in 2019 and do not reflect changes in how veterans receive healthcare following the COVID-19 pandemic, as well as the expansion of coverage under the PACT Act. The PACT Act is projected to bring 3.5 million additional veterans into the VA network of care.

Shereef Elnahal, VA Undersecretary for Health, stated that the new plans will reflect the expansion of the VA’s footprint and will focus on expanding and updating existing facilities as opposed to closures. Elnahal expects the new infrastructure plan to be released for review by Congress in the first half of 2023.

VA CIO Recruiting IT Talent to Support EHR Modernization

Fedscoop reports that the VA is aggressively recruiting tech personnel to help with its Electronic Health Records (EHR) modernization effort. Speaking to reporters on Friday, VA Chief Information Officer (CIO) Kurt DelBene said that the VA plans to hire 1000 employees within its Office of Information Technology. DelBene particularly emphasized the importance of hiring product managers who would provide support as the VA transitions to a new Electronic Healthcare Records system, a $16 billion project expected to extend through at least 2028.

Since deployments began in 2020, the system has experienced numerous challenges, including unexpected outages, issues with data management, and serious patient safety issues at a VA facility in Spokane, WA. In October of this year, the department announced that further new deployments of the system would be paused through at least June 2023 while outstanding issues were resolved. To attract and retain workers, the VA plans to offer remote work and an increased salary rate, which DelBene said he expects the Office of Management and Budget to approve by January 2023.

Legal Corner:

Inflation Relief Is Coming for DoD Contractors

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 Kevin Barnett, Lauren Brier and James N. Rhodes, PilieroMazza

As PilieroMazza has reported, rising costs due to inflation have been one of the most significant issues facing contractors with fixed-price contracts for the past year. Although the Department of Defense (DOD) and General Services Administration (GSA) have taken some steps to ameliorate the situation, those solutions have left contractors wanting. But true relief may be in sight. Congress included a provision in the National Defense Authorization Act (NDAA) for Fiscal Year 2023 that would authorize DOD contractors to receive contract adjustments for inflation-related cost increases.
The NDAA is the annual legislation that authorizes funding and programs for the DOD, and it is often used as a vehicle to pass federal procurement policy. It has been passed each year since 1960, and it appears that this year will be no different. Earlier this week, the House and Senate Armed Services Committees released a compromise version of the NDAA.

This version resulted from the “conferencing” process, where differences between the House and Senate versions of a bill are ironed out. The House passed the bill yesterday, and the Senate is expected to pass the bill in the coming days.

Section 822 of the NDAA, entitled “Modification of Contracts to Provide Extraordinary Relief Due to Inflation Impacts,” would amend the law on extraordinary contractual relief (ECR), Public Law 85-804, to give the Secretary of Defense temporary authority to modify the fixed-priced contracts of contractors facing increased costs solely due to inflation.

In doing so, Congress has committed to providing DOD with the authority to offer inflationary relief on fixed-price contracts. In its Joint Explanatory Statement, Congress explained that “[i]n order to support a robust [defense industrial base], we believe [DOD] needs additional temporary authorities to respond to the effects of recent and current inflation levels. We believe these authorities coupled with funding to mitigate inflation impacts will enable the [DOD] to provide a measure of relief to the [defense industrial base] where appropriate.” In addition, the NDAA requires DOD’s Under Secretary of Defense for Acquisition and Sustainment to issue guidance implementing this new authority within 90 days, which, depending on how quickly the NDAA is passed, should be sometime in March 2023.

In the meantime, the proposed legislation lays out the framework of the authorized inflationary relief:

  • Limited to DOD Contractors: The proposed legislation extends the new authority solely to the Secretary of Defense. This means that contractors for civilian agencies will not be able to benefit from this expanded authority without additional Congressional intervention.
  • Relief Available to Subcontractors: The proposed legislation authorizes prime contractors to seek relief for increased costs borne by subcontractors. And, if a prime contractor does not seek such relief, subcontractors are allowed to seek the available relief directly with DOD.
  • No Consideration Required: The proposed legislation explicitly prohibits DOD from requesting additional consideration from contractors seeking relief under this expanded authority. This means that a contracting officer could not demand new delivery dates or other accommodations in exchange for the inflationary relief, for example.
  • Limited Time Period: The bill only grants the expanded authority until the end of next year—December 31, 2023.
  • Discretionary: While the proposed legislation says that DOD “may” grant contractors inflationary relief, it does not mandate it. DOD’s forthcoming guidance will be crucial in defining the scope and process of determining eligibility for the inflationary relief.
  • Raises ECR’s Monetary Thresholds: Previously, the authority to adjust contracts under Public Law 85-804 required any adjustment over $50,000 to be approved at or above the level of an Assistant Secretary or his Deputy. The NDAA proposes raising that threshold to $500,000. Likewise, the proposed legislation increases the Congressional notification threshold from $25 million to $150 million.

Many significant open questions remain. From a procedural perspective, the proposed legislation does not explain how contractors should go about applying for such relief. DOD’s forthcoming guidance will need to answer this question.

More significantly, the legislation raises some questions about what costs are eligible for relief. When describing the costs that are eligible for reimbursement, the legislation parrots the phrase cost increases “due solely to economic inflation.” This could present significant evidentiary issues if DOD tries to untangle any specific causes of inflation (i.e., COVID-19, war in Ukraine, and other supply chain issues) from economic inflation itself.

Along the same lines, the legislation allows—but does not require—DOD to consider increases to indirect costs. Instead, it says only that such indirect costs of performance may be recoverable “as the Secretary of Defense determines appropriate.” This determination will be significant for any contractors who purchase supplies in bulk to be used across several contracts.

PilieroMazza attorneys are here to help ensure that you can effectively use all available tools to mitigate the negative impacts of inflation on your current and future government contracts. If you have questions, please contact Kevin Barnett, Lauren Brier, or James Rhodes, the authors of this client alert, or another member of the Firm’s Government Contracts or Government Contract Claims & Appeals practice groups.

Healthcare Corner:

“Medical Device Cybersecurity from a VHA Perspective: Why Cybersecurity Impacts ALL of Us” Webinar, January 25

Join a webinar with the Veterans Health Administration (VHA) on medical device cybersecurity hosted by AMSUS-SM and the Coalition for Government Procurement. The webinar will cover how to initiate the cybersecurity approval process, terminology and roles, and what contractors can expect during the VHA’s process. Our guest speakers will be Robert Steldt, Chair of the Medical Device Security Working Group and Healthcare Technology Manager, VISN 12 at the VA along with Megan Friel, Acting Director of the Office of Healthcare Technology Management.

Presenter: Robert Steldt, Healthcare Technology Manager, VISN 12 and Megan Friel, Acting Director, Office of Healthcare Technology Management

Moderator: Alan James, MBA, HCISPP, CC, Senior Government Account Manager, Stryker

Date: Wednesday, 25 January

Time: 12:00 – 1:00 pm EST

Virtual Platform: GoToWebinar

Target Audience: AMSUS-SM and Coalition Members

Fee: $0

Register Now!

A View From Main Street

By Ken Dodds, Live Oak Bank

The following blog does not necessarily represent the views of the Coalition for Government Procurement.

SBA and FAR Updates

Size Standard Increases

SBA establishes size standards that define small businesses for all federal government program purposes, absent specific statutory authority or approval by SBA.[1] SBA must review these size standards every five years.[2] SBA must also examine the impact of inflation on monetary-based size standards at least once every five years.[3] Effective December 19, 2022, SBA will raise many of the revenue-based size standards.[4] For example, computer services (541511, 541512, 541519) will go from $30M to $34M, computer facilities management services (541513) will go from $32.5M to $37M, administrative management and general management consulting services (541611) will go from $21.5M to $24.5M, engineering services (541330) will go from $22.5M to $25.5M and the exceptions will go from $41.5M to $47M.

Economic Disadvantage Threshold Increases

SBA uses three tests to determine whether a person is economically disadvantaged for purposes of certification as an 8(a) Participant or Economically Disadvantaged Women-Owned Small Business (EDWOSB): net worth, adjusted gross income (AGI) and total assets.[5] These same tests are used for self-certification as a Small Disadvantaged Business.[6] Effective December 19, 2022, the net worth test (excluding ownership interest in the applicant, equity in the primary residence, and retirement accounts) will increase from $750k to $850k. The AGI test, averaged over the three preceding years, will increase from $350k to $400k. The total assets test (excluding retirement accounts) will increase from $6M to $6.5M.[7]

Service-Disabled Veteran-Owned Small Business Certification

On January 1, 2023, SBA will begin certifying firms as Service-Disabled Veteran-Owned (SDVO) small business concerns (SBCs) for all SDVO set-aside and sole source contract awards. Self-certified SDVO SBCs have one year to apply for certification.[8] Firms already certified by the VA must recertify within 120 days of their three-year anniversary date of certification, except that SBA intends to extend the recertification requirement for one year for firms that have to recertify in 2023.[9] In a positive development, a minority owner’s right of first refusal under normal commercial circumstances will no longer be deemed to violate the unconditional ownership requirements.[10] This policy change should also apply to 8(a) and WOSB.

DOD Class Deviation for Joint Ventures

On October 26, 2022, DOD issued a class deviation concerning verification of small business and socioeconomic joint venture eligibility.[11] On October 28, 2022, FAR clauses 52.212-3 and 52.219-1 were amended to require small and socioeconomic joint ventures to enter the name and unique entity identifier for each party to the joint venture.[12] However, SAM has not yet been updated to reflect these changes, so contracting officers shall require hard copy representations until SAM is updated.

Do you have a topic you wish to be covered or a question on how Live Oak Bank can support your business? Email me at ken.dodds@liveoak.bank.

[1] 15 USC 632(a); 13 CFR 121.101.

[2] Section 1344 of Pub. L. 111-240, 124 Stat. 2504 (September 27, 2010).

[3] 13 CFR 121.102(c).

[4] 87 FR 69118.

[5] 13 CFR 124.104, 127.203.

[6] 13 CFR 124.1001(b).

[7] 87 FR 69118.

[8] 13 CFR 128.200(c) (January 1, 2023).

[9] 87 FR 73400; 13 CFR 128.306 (January 1, 2023).

[10] 13 CFR 128.202(b)(3) (January 1, 2023).

[11] https://www.acq.osd.mil/dpap/policy/policyvault/USA002015-22-DPC.pdf

[12] 87 FR 58219.

Coalition Seeking Comments on Proposed GHG Rule

On Monday, the Coalition held a briefing on the Federal government’s proposed rule on greenhouse gases and climate risk provided by Paul Freeman, Partner with Crowell & Moring. We are now collecting feedback from our members on the rule to help us prepare comments and represent the voice of Federal contractors.
We ask that all members submit their initial feedback before close of business next Tuesday, December 20 by emailing Aubrey Woolley at awoolley@thecgp.org.

The proposed rule, entitled “Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk,” would require certain Federal contractors to report greenhouse gas emissions and climate-related financial risks, and to set targets to reduce emissions. The rule would require all contractors with more than $7 million per year in Federal obligations to report direct greenhouse gas emissions (Scope 1 emissions) and emissions from their power consumption (Scope 2 emissions) on an annual basis. Contractors with more than $50 million in obligations would be additionally required to report value chain emissions (Scope 3 emissions), submit an annual public climate disclosure that identifies climate-related risks to their enterprise, and set science-based targets to reduce greenhouse gas emissions.

For those with further questions about the rule, please contact Ian Bell at ibell@thecgp.org.


GSA Seeking Feedback on Alliant 3 Draft RFP

On October 19, GSA posted its Alliant 3 draft RFP on SAM.gov. The draft solicitation remains open for comment through January 6. The Coalition plans to submit feedback to GSA in response to the draft RFP. For those interested, please provide any comments and questions on the draft RFP to Michael Hanafin at mhanafin@thecgp.org by close of business on December 16.

Join the NASA SEWP VI Working Group

The Coalition is forming a NASA SEWP VI Working Group to engage with NASA on the procurement vehicle and its future. The Working Group will hold meetings with key NASA SEWP VI personnel and develop consensus feedback on any draft documents. If you are interested in joining the Working Group, please contact Michael Hanafin at mhanafin@thecgp.org.

Seeking Member Testimonials About the Value of Coalition Membership

The Coalition is compiling its 2022 Year in Review to keep members informed about our impact on Federal procurement, and we want to make sure to represent our most important constituency–you! If you have a story about how the Coalition has benefited you or your organization that we can include in the review, please contact Aubrey Woolley at awoolley@thecgp.org.

Register for the AFCEA Bethesda Health IT Summit, Jan 17-18

The Coalition is proud to sponsor AFCEA Bethesda’s 15th Annual Health IT Summit, Collaborating for a Resilient Health IT Ecosystem. The Summit will have two days of agency focused panels held on Tuesday and Wednesday, January 17 and 18. Each day will be a unique opportunity to learn, engage, and connect with key government agencies including HHS, CMS, DHA, VA, NIH, CDC, and FDA on the most important healthcare IT challenges facing government and industry today.

Technology provides an environment for collaboration, cooperation, and coordination among key players in the healthcare system, including government agencies, private-sector partners, and academia. The pandemic has created a rare opportunity to transform and modernize a sprawling healthcare system that has been stubbornly slow to change. At a time when the average life expectancy of Americans has declined for three consecutive years, transforming healthcare means better outcomes and healthier Americans. For that to happen, we must work together.

Coalition members can register here.

Register for DHS Strategic Industry Conversation VIII

On February 8, 2023, the Department of Homeland Security (DHS) will host its eighth annual Strategic Industry Conversation, “Mission Success through Collaboration.” This all-day event will take place at the Washington Hilton, 1919 Connecticut Ave. NW, in Washington DC. The event is not tied to any specific procurement actions, but is intended to bring officials from DHS procurement, such as DHS Industry Liaisons and Small Business Specialists, together with industry partners. There will be sessions on customer experience initiatives, category management at DHS, sustainability, and information technology. Registration is complementary (limited to two persons per company) and ends January 25, or when 500 individuals have registered. To register, please click here.