Friday Flash 12.3.21

FAR & Beyond:  Build Procurement Back Better

Just last month, the Biden Administration released its vision for the President’s Management Agenda (PMA). The PMA focuses on three priorities: (1) strengthening and empowering the Federal workforce; (2) delivering excellent Federal services and improved customer experience; and (3) and managing the business of Government to Build Back Better.  Significantly, under Priority 3, the Biden Administration highlights the role of the acquisition system in building back better.  The PMA seeks to foster “lasting improvements in the Federal acquisition system to strengthen the U.S. domestic manufacturing base, support American workers, lead by example toward sustainable climate solutions, and create opportunities for underserved communities.”

Given the Coalition’s mission of promoting common sense in government procurement, it is gratifying to see the Administration’s recognition of the central role the Federal acquisition system plays in meeting customer agency missions on behalf of the American people.  As Federal senior executives ask the acquisition system and their industry partners to do more to support the Build Back Better initiative, it will be critical to identify quick fixes, reforms, policies, and strategies that increase the efficiency and effectiveness of the acquisition system for customer agencies and contractors.  Recognizing the value offered by the private sector here, to be effective, as noncommercial requirements are added to the acquisition system, approaches must be developed to reduce burdens on that sector.  Obsession with what Professor Steve Schooner has long called, “the tyranny of low price,” is not in the long-term best interests of customer agencies, industry partners, and the nation.

As the Federal government and its industry partners work together to act on opportunities to improve the efficiency and effectiveness of the acquisition system, today marks the beginning of a series of Build Procurement Back Better blogs.  These blogs will highlight potential quick fixes, reforms, policies, and strategies that can reduce burdens, clarify procedures and policies to promote cost-effective best value solutions for customer agencies and their industry partners.

The initial focus of the Build Procurement Back Better blogs will be interagency contracting and GSA’s governmentwide acquisition programs.  With regard to GSA’s Multiple Award Schedules (MAS) program, start with the foundation, specifically, the MAS RFP and a confusing and contradictory statement/instruction regarding price analysis.

Section III of the MAS solicitation’s instructions to offerors (Refresh 9):

Applicable to both product and service offers.  GSA’s pricing goal** is to obtain equal to or better than the offeror’s Most Favored Customer (MFC) pricing under the same or similar terms and conditions.  GSA seeks to obtain the offeror’s best price based on its evaluation of discounts, terms, conditions, and concessions offered to commercial customers.  However, offers that propose Most Favored Customer pricing that is not highly competitive will not be determined fair and reasonable and will not be accepted.  The U.S. Government Accountability Office has specifically recommended that “the price analysis GSA does to establish the Government’s negotiation objective should start with the best discount given to any of the vendor’s customers.”

**This requirement does not apply to offerors/contractors that will be participating in TDR.

See SCP-FSS-001 Instructions Applicable to All Offerors

There are multiple points to unpack in this statement/instruction. The first sentence addressing the pricing goal generally reflects the underlying General Services Acquisition Regulation (GSAR) governing MAS price negotiations.  To provide full context to the sentence, however, the best practice would be to include the citation to the applicable regulation, GSAR 538.270.  The second sentence stating the goal of obtaining the offeror’s best price to commercial customers unfortunately contradicts the first sentence and the underlying GSAR.  Worse, the third sentence essentially inserts a new price analysis requirement that the negotiated prices must be “highly competitive” to be fair and reasonable. To the best of our knowledge, there is no regulatory definition of “highly competitive,” but in any case, pursuing this goal is especially challenging when MAS contracts only provide a $2500 guaranteed minimum with the subsequent opportunity to compete for work at the task order level.  Competition takes place at the task order level, as statutorily and regulatorily intended, and it is at that point where requirements are definitized sufficiently to allow for meaningful competition.  Further, the final sentence including a Government Accountability Office (GAO) quote is confounding.  GSA is responsible for implementation and management of its MAS pricing policy, not GAO.  Moreover, the GAO statement is provided without any context, leaving stakeholders to wonder about its origin and utility.  There is not even a citation or further reference to the report that included the statement, which is especially troubling as the GAO statement/quote contradicts the first sentence of the instructions, along with the underlying GSAR price regulations.

A positive, quick fix for GSA would be to revise and clarify this language.  Given its confusing, contradictory, it is no wonder that one of the consistent observations regarding the MAS process is the lack of consistency from acquisition center to acquisition center and even from contracting officer to contracting officer within an acquisition center.  Addressing this language consistent with the underlying regulation, however, would be only a first step.  The harder work, focusing on the management, training, and education of the MAS acquisition workforce supporting contract negotiation and administration, would have to follow.   In this regard, whether through direct engagement, forums, or reverse industry days, Coalition members look forward to working with GSA on improving the efficiency and effectiveness of the MAS program.  Working together we can Build Procurement Back Better.

­­2021 EIP Award Nominations Now Open!

The Coalition for Government Procurement is pleased to announce that nominations are now open for the 2021 Excellence in Partnership (EIP) Awards.

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

We are seeking nominations from qualified candidates in the award categories below from both government and industry:

Lifetime Acquisition Excellence Award

Presented to an individual in the contracting community for demonstrating a life-long commitment to advancing “common sense in government procurement.” Awards will be made in the following subcategories:

  • Department of Defense
  • Civilian agency
  • Industry

Acquisition Excellence Award

Presented to an organization or individual for outstanding performance over the year in meeting the mission-critical needs of a Federal agency through a government contract. Awards will be made in the following subcategories:

  • Department of Defense
  • Civilian agency
  • Industry

Sustainability/Green Excellence Award

Presented to an organization or individual that has made outstanding sustainability contributions in support of the Federal government’s goal to address climate change. Awards will be made in the following subcategories:

  • Department of Defense
  • Civilian agency
  • Industry

Advocating for Veterans Award

Presented to an organization or individual for promoting and executing a successful program that supports veterans. Awards will be made in the following subcategories:

  • Department of Defense
  • Civilian agency
  • Industry

Click here to submit your nomination for the 2021 EIP Awards before the January 31, 2022 deadline. Awardees will be named this March and recognized at our Spring Training Conference in May. If you have any questions, please contact Michael Hanafin at mhanafin@thecgp.org.

 

Congress Passes CR to Fund Government through Feb. 18

Late Thursday, the Senate averted a government shutdown by passing a continuing resolution that funds Federal agencies through February 18, 2022. The Senate passed the bill in a 69-28 vote following the passage of the bill by the House earlier on Thursday. The President has until midnight tomorrow to sign the bill. The extended deadline will provide appropriators with more time to negotiate the 12 full-year government spending bills for the 2021 fiscal year beginning October 1. According to Bloomberg Government,”[t]he funding extension puts agencies on autopilot, freezing in place program funding levels and forbidding new contracts, with few exceptions…”

Top Priorities in the President’s Management Agenda 

Federal News Network reported that the Biden Administration recently laid out its vision for the President’s Management Agenda (PMA). The agenda highlights certain values that the Administration will follow in its implementation of the PMA including equity, dignity for all Americans, accountability to the American people, and a dedication to achieving results. These values will be the driving force behind its priorities which are: strengthening and empowering the federal workforce; delivering excellent, equitable, and secure Federal services and customer experiences; and managing the business of Government to “build back better.” 

To strengthen the Federal workforce, the Administration underscored four strategies: 

  • Strategy 1: Attract and hire the most qualified employees, who reflect the diversity of our country, in the right roles across the Federal Government. 
  • Strategy 2: Make every federal job a good job, where all employees are engaged, supported, heard and empowered, with opportunities to learn, grow, join a union and have an effective voice in their workplaces through their union and thrive throughout their careers. 
  • Strategy 3: Reimagine and build a roadmap to the future of federal work informed by lessons from the pandemic and nationwide workforce and workplace trends. 
  • Strategy 4: Build the personnel system and support required to sustain the Federal Government as a model employer able to effectively deliver on a broad range of agency missions. 

The Administration’s strategies to improve the customer experience provided by the Federal Government include:  

  • Strategy 1: Improve the service design, digital products, and customer-experience management of Federal High-impact Service Providers by reducing customer burden, addressing inequities and streamlining processes. 
  • Strategy 2: Design, build, and manage government service delivery for key life experiences that cut across federal agencies. 
  • Strategy 3: Identify and prioritize the development of federal shared products, services, and standards that enable simple, seamless, and secure customer experiences across high-impact service providers. 

And in its final priority, managing the business of Government, the Administration has two broad strategies in mind:  

  • Strategy 1: Foster lasting improvements in the federal acquisition system to strengthen the U.S. domestic manufacturing base, support American workers, lead by example toward sustainable climate solutions, and create opportunities for underserved communities. 
  • Strategy 2: Build capacity in federal financial management and through federal financial assistance to catalyze American industrial strategy, address climate-related risks and deliver equitable results. 

 

DoD May Incentivize Early Adoption of CMMC 2.0

Federal News Network reported that the Department of Defense (DoD) is considering financial rewards and other incentives for contractors to improve their network security practices in preparation for the Cybersecurity Maturity Model Certification (CMMC) 2.0. During The Coalition for Government Procurement’s Fall Training Conference in November, Stacy Bostjanick, Director of CMMC Policy, said that “some of the things that we’re looking at is the potential of if a company can demonstrate that their networks are secure, then they could possibly garner a higher profit margin. Another area that we’re looking at is increasing the use of evaluation criteria for contracts where it doesn’t necessarily have to be a CMMC certification, but we will assess people’s network security as part of a source selection evaluation, so it would still be a factor in garnering award prior to CMMC becoming effective through rulemaking.” DoD is also looking to incentivize companies that complete an assessment by a CMMC Third Party Assessment Organization. 

CMMC 2.0 was announced earlier this month. The changes introduced in CMMC 2.0 will help to reduce costs and complexity for small and medium-sized contractors. According to DoD, the rulemaking process for the new model could take anywhere from nine to 24 months to complete. 

 

LaPlante Nominated for DoD Undersecretary for Acquisition and Sustainment 

Fedscoop reported that President Biden has nominated William LaPlante to serve as Undersecretary for Acquisition and Sustainment at the DoD. La Plante has over three decades of experience in military procurement and policy. He had previously served as Assistant Secretary for Acquisition, Technology, and Logistics at the Air Force during the Obama Administration. The DoD Undersecretary for Acquisition and Sustainment serves as the main staff assistant and advisor to the Secretary of Defense for all matters related to military procurement. If LaPlante is confirmed by the Senate, he will fill a vacancy that was created in 2020 when Ellen Lord left the position. 

 

 

GSA Publishes Fall 2021 MAS Industry Newsletter 

The Multiple Award Schedule Program Management Office (MAS PMO) recently announced its publication of its Fall 2021 newsletter. The newsletter includes the latest updates and information for industry. Articles that can be found in this quarter’s edition cover information about Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors, the retirement of the Vendor Education Center, Catalog Management Updates, and the 2022 FAST Conference & Monthly Training Series. It also includes various MAS program updates.  

To view the Fall 2021 MAS Industry Newsletter, click here 

 

Save the Dates: GSA 2022 FAST Conference, June 21-23

GSA announced in their most recent MAS quarterly newsletter the dates of the 2022 Federal Acquisition Service Training (FAST) three-day Conference. According to GSA, the three-day marquee conference FAST2022 is scheduled for June 21 – 23, 2022. The conference theme is Data to Insights, Insights to Action, and Action to Impact. GSA is interested in industry’s ideas on topics to be covered at the conference. Please send your input to fast.event@gsa.gov.

Beginning in February, the FAST 2022 Virtual Monthly Conference series will start. The monthly sessions will focus on improving requirements development.

To receive updates on the FAST 2022 Monthly Series and the three-day Conference, register here. Updates can also be found on the FAST Overview webpage, which can be found here.

  

GAO Testimony on VA Supply Chain Modernization

On November 18, the Government Accountability Office (GAO) released the testimony from the Modernizing VA’S Medical Supply Chain: Progress Made? hearing, which discusses the challenges the Department of Veterans Affairs (VA) has with supply chain modernization and acquisition management. In 2019, GAO added VA acquisition management to its High-Risk List because the VA had challenges with acquiring goods and services, specifically medical supplies. During the hearing, GAO focused on many of the challenges the VA had with the Medical-Surgical Prime Vendor (MSPV) program.

In 2017, GAO found that the VA’s implementation of the MSPV program lacked an overarching strategy, stable leadership, and medical center buy-in. Since those findings, VA has made improvements in providing stable leadership for the program, but according to GAO, the VA still needs to develop a clear strategy for supply chain management.  

In July 2021, VA created a plan to address their acquisition management challenges, but the GAO believes that the plan still lacks:  

  • An identification of the scope of VA’s supply chain and how existing programs and initiatives will be included in its overall supply chain modernization effort; 
  • Specific actions for how the initiatives in the action plan will be completed; 
  • Target completion dates for specific actions within each initiative; 
  • Performance metrics that will be used to demonstrate progress; 
  • In some cases, which position or what office is responsible and accountable for ensuring the initiatives are completed; or 
  • Resources. 

In the past six years, VA has implemented 29 of 51 of the GAO’s recommendations. The VA is continuing to make strides in addressing the supply chain management challenges by conducting an agency-wide supply chain assessment which is scheduled to be completed by the end of 2022.   

 

DHA Summit on ATOs Rescheduled for Jan. 13

The AMSUS-SM Technology Working Group and The Coalition for Government Procurement are partnering to host a summit with the Defense Health Agency. The topic will be DHA’s Risk Management Framework and how to achieve an Authority To Operate (ATO) which is required for Military Treatment Facilities to purchase certain medical equipment. We had previously announced that the meeting would be held Tuesday, Dec. 7. However, upon DHA’s request, the virtual meeting is being rescheduled for Thursday, January 13 from 10:30 am- 12:30 pm EST. The agenda and additional details will be released in the coming weeks. If you have any questions, please contact Aubrey Woolley atawoolley@thecgp.org or 202.315.1053. 

  

 

Legal Corner: New Task Force FAQs Address Contractor Vaccine Mandate Enforcement, Accommodations

Jason N. Workmaster, Alex L. Sarria & Sarah Barney

Miller & Chevalier

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.

On November 1, 2021, the Safer Workplace Task Force (Task Force) released new Frequently Asked Questions (FAQs) on contractor compliance with the workplace safety and vaccination requirements mandated by President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (Executive Order). The Executive Order requires covered contractors, covered contractor employees, and those working at covered contractor workplaces to comply with vaccination, masking, and physical distancing protocols, absent an accommodation for disability or religious reasons. Our previous alerts have covered the Executive Order in more detail and the subsequent Task Force guidance and may be helpful for understanding key definitions and nuances in the new FAQs.

A brief timeline highlights where the new FAQs fit in to the broader picture of the Executive Order:

  • September 9, 2021: The Biden administration releases the Executive Order, indicating that federal contractors will soon be subject to employee vaccination, masking, physical distancing, and compliance monitoring requirements via a forthcoming Federal Acquisition Regulation (FAR) clause.
  • September 24, 2021: The Task Force releases guidance for federal contractors and subcontractors (Guidance) setting out key definitions for covered contractors, covered contractor employees and workplaces, and mandating vaccination for any covered contractor employee working on or in connection with a covered contract or working at a covered contractor workplace.
  • September 30, 2021: The FAR Council issues a class deviation clause requiring compliance — as early as December 8, 2021 — with Task Force Guidance for covered contracts and “strongly encourag[ing]” the inclusion of the clause in non-covered contracts.
  • November 1, 2021: The Task Force releases new FAQs on contractor compliance, accommodations, and the scope of covered contractor workplaces.

The new FAQs build on previous recommendations about compliance with the vaccination mandate, the process for granting accommodations, and the scope of covered entities. Further, they address the relationship between contractor accommodations and federal workplaces. The key takeaways are as follows:

  • Good Faith Effort: The new FAQs establish a “good faith” standard for a contractor’s efforts to come into compliance with the Guidance. This is a significant development, as it indicates that the government is not taking a bright-line approach to enforcement for contractors who are attempting to become compliant. However, this also means that the approaches or perspectives of contracting officers working with contractors who are facing challenges with compliance may be difficult to predict and may produce varying outcomes. At this point a contractor’s most proactive approach is to be working diligently toward compliance and retain an open dialogue with their agency costumers — including keeping contracting officers aware of the status of compliance on an ongoing basis.
  • Timing of Requests for Accommodations and Accommodation Criteria: Requests for accommodations do not need to be resolved by the time covered contractor employees begin work on a covered contract as long as the employees requesting accommodations comply with workplace safety protocols for unvaccinated individuals. If an accommodation is denied, contractors should establish a timeline for the employee to promptly become fully vaccinated. Furthermore, the FAQs direct covered contractors to the Centers for Disease Control recommendations regarding accommodation requests or vaccination delays based on pre-existing conditions, pregnancy, and participation in clinical trials.
  • Requirements for Employees with Accommodations in Federal Workplaces: Covered contractor employees who have received accommodations from a covered contractor and are working at a federal workplace should comply with the federal agency’s requirements for unvaccinated individuals, including masking, physical distancing, and testing. Notably, agencies may determine that, due to the nature of a project or federal workplace, vaccination is the only appropriate workplace safety protocol. In such circumstances, even employees with accommodations may not work at those federal workplaces. Because of this, contractors should put their respective agency customers on notice when they grant an employee an accommodation.
  • Employee and Contractor Noncompliance: For covered contractor employees who refuse to be vaccinated and have not been provided an accommodation, contractors should determine the appropriate method of enforcement. Contractors can utilize their traditional processes for enforcing workplace requirements or model their approach after the federal agencies, starting with a period of education and counseling, followed by disciplinary measures and, in the face of noncompliance, removal. For contractors who are noncompliant (as opposed to contractors who are making a good faith effort to become compliant but are not yet compliant), significant actions, including termination of a contract, should be taken by a contracting officer.
  • Prior Access to Documentation: For the purposes of documenting compliance with vaccination requirements, contractors can consider prior access to an employee’s documentation or access via a state’s immunization database sufficient.
  • Affiliates: The employees of a covered contractor’s corporate affiliate are considered covered contractor employees if those employees work at a covered contractor workplace. If a covered contractor’s employees are working on or in connection with a covered contract at a workplace controlled by a corporate affiliate, the workplace is considered a covered contractor workplace.

While the FAQs address several areas of concern for covered contractors, questions remain about the practical considerations of compliance and enforcement, as well as the live issues pertaining to the relationship between the Executive Order and state bans on vaccination mandates. We will continue to monitor and report on the developments in COVID-19-related requirements for contractors and subcontractors.

 

Healthcare Spotlight: VA Reassessing Supply Chain Modernization Program

Federal News Network reported that the VA announced in a recent hearing that it is reassessing the future of its current medical supply chain modernization program. The announcement comes after a recent Inspector General (IG) report found certain challenges that were uncovered after the deployment of Defense Medical Logistics Standard Support (DMLSS) at its first site in North Chicago. The IG stated that the system was not able to meet 40% of high-priority business needs that VA staff at the initial site identified as essential for the supply chain management system to be successful. The VA’s Deputy Inspector General, Leigh Ann Searight stated that the inability of DMLSS to meet the needs of the staff in North Chicago “forced staff to develop workarounds just to maintain day-to-day operations. Notably, DMLSS did not meet any of Lovell’s data and information sharing requirements, could not adequately perform routine healthcare technology management functions and lacked key functions to maintain accountability of IT equipment.”   

The goal of the supply chain initiative for the VA is two-fold: to modernize its inventory management system and to move to DLA’s existing contract vehicle and away from its current set of vendors. But a Federal Claims Court decision “all but halted the move” of DLA’s existing contract vehicle, moving Congress to question the purpose of further deploying DMLSS. In response, the VA reiterated it is reevaluating DMLSS as part of a broader review concerning its supply chain and acquisition projects. Mike Parrish, Principal Executive Director for VA’s Office of Acquisition, Logistics and Construction, said that “Once VA completes that review, the department will develop a new analysis that describes its requirements for a modern medical supply chain management system. Then we’ll determine the technology solution.” 

According to Federal News Radio, an assessment of the department’s supply chain operations is due to Parish sometime in mid-December and will “identify how multiple, ongoing modernization initiatives — which include the electronic health record (EHR) modernization and financial management initiatives — relate and interact with each other. From there, the department will develop a comprehensive supply chain strategy with a new set of metrics and goals. 

 

DoD Considers New Chief Data and AI Officer Position 

Fedscoop reported that DoD is considering creating a new Chief Data and Artificial Intelligence Officer position responsible for overseeing the Joint AI Center (JAIC), the Office of Chief Data Officer (CDO), and the Defense Digital Service (DDS). According to defense officials, discussions about the position are ongoing and no decisions have been made. Currently the JAIC reports directly to the Deputy Secretary, the CDO reports directly to the Chief Information Officer, and the DDS reports directly to the Secretary of Defense. The new role would mean that these three sub-agencies report to one centralized official. The reorganization effort is meant to streamline reporting methods for the DoD offices responsible for data, AI, and technology innovation.   

 

IGs Submit Semiannual Reports to Congress 

Twice a year, Federal agencies’ Office of Inspector General (OIG) submit semiannual reports to Congress that highlight the successes, improvements, and challenges for agencies during the previous six-month period.   These reports cover April 1, 2021 to September 30, 2021.  

General Services Administration 

In GSA OIG’s report, OIG found some of the management challenges in FY21 included improving contract administration; enhancing government procurement; managing cybersecurity risks; and managing the impact of COVID-19. OIG completed preaward audits and postaward audits. OIG found the following from the audits: 

  • 18 contractors either overcharged GSA customers or overstated their proposed labor rates. 
  • 14 contractors did not submit accurate, current, and complete information. 
  • 8 contractors either did not comply with price reduction provisions or did not have effective price reduction provisions. 
  • 6 contractors assigned employees who were unqualified for their billable positions to work on GSA schedule task orders. 
  • 6 contractors did not follow other terms and conditions of their contracts. 
  • 5 contractors did not adequately accumulate and report schedule sales for Industrial Funding Fee payment purposes and/or did not correctly calculate and submit their Industrial Funding Fee payments. 

Department of Defense 

In DoD OIG’s 2021 semiannual report, some of the management challenges included reinforcing the supply chain while reducing reliance on strategic competitors; increasing agility in DoD’s acquisition and contract management; and developing an adaptive and modern workforce. The OIG completed audits of four different operating areas, including acquisition, contracting, and sustainment including an audit of other transactions (OTs) awarded through consortiums. The audit found that DoD did not properly track OTs awarded through consortiums and OTs awarded through consortiums lacked oversight, which hindered effectiveness.  

Small Business Administration 

In the Small Business Administration (SBA) OIG’s 2021 semiannual report to Congress, the SBA OIG identified four key goals for FY 2018-2022, which are to:  

  • Support small business revenue and job growth. 
  • Build healthy entrepreneurial ecosystems and create business friendly environments. 
  • Restore small businesses and communities after disasters. 
  • Strengthen SBA’s ability to serve small businesses.  

Since 2020, SBA has been responsible for providing pandemic relief funding to small businesses through the Paycheck Protection Program (PPP) and Economic Injury Disaster Loans (EIDLs). There were many reports of fraudulent activity and OIG has provided the SBA with ways to manage the fraud.  

 

Off the Shelf: Government Contractors and the COVID-19 Vaccine Mandate 

This week on Off the Shelf,  Miller & Chevalier’s Jason Workmaster shared his insights and analysis on the implementation of the COVID-19 vaccine mandate for government contractors. 

Workmaster outlined key considerations contractors should focus on as they navigate the mandate. 

He also discussed recent developments in Civil False Claims Act enforcement, including the recent launch of the Justice Department’s cyber fraud initiative and the ongoing efforts of the anti-collusion task force. 

Turning to contracting matters, Workmaster shared his thoughts on the impact and implications of GSA’s Transactional Data Reporting expansion. He also discussed recent Buy American developments and the impact of the recent Court of Claims bid protest decision on the Department of Veterans Affairs’ Medical/Surgical Prime Vendor program. 

Listen to the full episode here. 

 

Proposed Rule: Using the Social Costs of GHG Emissions in Federal Procurement

On October 15, the FAR Council issued a proposed rule providing notice to contractors about plans to amend the FAR to ensure that major Federal procurements minimize the risk of climate change. On May 20, President Biden signed Executive Order (EO) 14030, Climate-Related Financial Risk. The EO states that the Federal Government should manage climate-related financial risk within its procurement activity. This proposed rule looks to ensure that Federal procurements minimize the risk of climate change by requiring the social cost of greenhouse gas emissions to be considered in procurement decisions, and by giving preference to bids and proposals from suppliers with a lower social cost of greenhouse gas emissions. The social cost is an estimate of monetized damage from increases in greenhouse gas emissions.   

The FAR Council is seeking public comments on a list of questions in the proposed rule such as “how can greenhouse gas emissions, including the social cost of greenhouse gases, best be qualitatively and quantitatively considered in Federal procurement decisions?”  

The Coalition will be submitting comments through the Green Committee which are due by December 14, 2021. Please send any comments or questions about the proposed rule to Aubrey Woolley at awoolley@thecgp.org by COB Dec. 6.  

 

DOL Releases Minimum Wage Final Rule

The Department of Labor (DOL) announced on November 22 that the “Increasing the Minimum Wage for Federal Contractors” final rule has been published. The final rule implements Executive Order 14026, which raises the minimum wage that is paid by contractors to their workers that are performing work “on or in connection with covered Federal contracts to $15.00 per hour, beginning January 30, 2022; and beginning January 1, 2023, and annually thereafter.” It also established the standards and procedures for the final rule’s implementation and enforcement of minimum wage protections of E.O 14026. 

 

GSAR Final Rule Updating References to Commercial Items

On December 2, GSA issued a final rule amending the GSAR to separate the definition of “commercial item” into the definitions of “commercial product” and “commercial service,” matching similar actions that were taken in the FAR. A final rule was published in the FAR on November 4, 2021 that implements Section 836 of the Fiscal Year 2019 National Defense Authorization Act which separates these definitions. This GSAR amendment does not expand or shrink the products or services that the Government can procure using GSAR part 512, and also does not change terms and conditions that vendors must comply with. Additionally, the amendment does not add any new solicitation provisions or contract clauses. The final rule also replaces all instances of “non-commercial” and “noncommercial” with “other than commercial” in order to have language consistent between the FAR and GSAR. There are other minor editorial changes made to the GSAR for consistency with the FAR. This final rule is effective on January 3, 2022.\

 

Comments on NIST Cybersecurity Draft Due December 10 

The National Institute on Science and Technology (NIST) published the second draft of Special Publication (SP) 800-161 Revision 1, Cybersecurity Supply Chain Risk Management Practices for Systems and Organizations, for public comment. The updated draft includes incorporates feedback received from the first round of public comments. The first public draft was released in April 2021 before the May Executive Order on Improving the Nation’s Cybersecurity. The EO directed multiple agencies, including NIST, to enhance cybersecurity with a focus on the security integrity of the software supply chain.  

Notable changes in the second version include making the implementation guidance more consumable for different audiences by revising the structure of the document and adding Audience Profiles. The following two new appendices were added as well: 

  • APPENDIX E: A Federal Acquisition Supply Chain Security Act of 2018 (FASCSA) appendix, which provides additional guidance tailored to federal executive agencies related to supply chain risk assessment factors, assessment documentation, risk severity levels, and risk response.    
  • APPENDIX F: A Response to Executive Order 14028’s Call to Publish Preliminary Guidelines or Enhancing Software Supply Chain Security appendix, which seeks to provide a response to the directives outlined within Section 4(c) of the EO by outlining existing industry standards, tools, and recommended practices within the context of SP 800-161 Revision 1, as well as any new standards, tools, and recommended practices stemming from the EO and recent developments in the discipline. 

The deadline for comments on the draft has been extended to December 10, 2021. The template for comment submissions and instructions can be found here. The Coalition is considering submitting comments.  If you have comments on the draft that you would like the Coalition to consider for submission, please contact Tom Sisti at tsisti@thecgp.org.