Actions foreshadow uniform cybersecurity regulations for federal contractors

Two recent Executive Agency actions lay the groundwork for a FAR cybersecurity clause in 2016.

  • Government contractors should expect an amendment to the Federal Acquisition Regulation in 2016 that mandates cybersecurity clauses and standards.
  • Companies can prepare now by comparing new government standards to their existing system protections.
  • As part of this process, companies should not just be reviewing the capabilities of their information systems, but also their written information assurance policies, training materials, and employment and third-party agreements.

cyber securityFederal government contractors handling Controlled Unclassified Information (CUI) should take notice of two recent executive agency actions. Combined, they lay the groundwork for a new cybersecurity clause to be added to the Federal Acquisition Regulation (FAR) in 2016.

Keep reading this article at: http://www.jdsupra.com/legalnews/actions-foreshadow-uniform-45314/

For more information on this topic, see: www.gtpac.org/tag/controlled-unclassified-information

New proposal would alter FAR subcontracting plan requirements

The Federal Acquisition Regulation (FAR) requires most large business contractors to have a plan approved by the government to subcontract a certain amount of their work to the various types of small business contractors (i.e., SDB, WOSB, SDVOSB, etc.). In the last few years, we have seen a noticeable increase in activity related to these subcontracting plans.

The FARSBA changed its subcontracting rules in July 2013 and since then has stepped up its audits to determine how well contractors are complying with their subcontracting plans. The FAR, which has lagged behind the updated SBA regulations, is now poised to catch up in several respects based on proposed changes released on June 10, 2015.

Keep reading this article at: http://www.pilieromazza.com/blog/change-of-plans-new-proposal-would-alter-far-subcontracting-plan-requirements

Interested parties may submit written comments on this proposed rule.  Comments must be received on or before August 10, 2015 by mail to the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F. Street NW., 2nd Floor, Washington, DC 20405.  Cite FAR case 2014-003.  

Comments also may be sent via the Federal eRulemaking portal by searching “FAR Case 2014-003.”  Select the link “Comment Now” that corresponds with “FAR Case 2014-003.” Follow the instructions provided on the screen. Please include your name, company name (if any), and “FAR Case 2014-003” on your attached document.

Federal contractors to be burdened with additional disclosure requirements if Government has its say

The U.S. Labor Department (DOL) and three federal agencies (the Department of Defense, the General Services Administration and NASA) recently issued two proposed documents relating to the implementation of Executive Order 13673, better known as the Fair Pay and Safe Workplaces Executive Order.

If enacted, these proposals would be problematic and burdensome for federal contractors; those who wish to have their voices heard on the matter have a July 27, 2015 deadline to submit comments on both documents.

The FARThe three contracting agencies issued a proposed rule amending the Federal Acquisition Regulations (FAR) intending to ensure federal agencies contract with only those contractors that they find to be “responsible sources,” i.e. those with a satisfactory record of integrity and business ethics. Under the proposed rule, affected contractors and subcontractors will be required to:

  1. disclose labor law violations within the past three years;
  2. notify workers performing under the contract how their pay is being calculated each pay period;
  3. notify independent contractors that they are being treated as such; and
  4. refrain from entering into certain pre-dispute arbitration agreements with employees or independent contractors.

The document also outlines how contracting officers, in consultation with “agency labor compliance advisors” – new positions created by the Order – will determine whether a contractor is a “responsible source.” If not, the proposal provides rules on how they can become one (e.g., requiring certain remedial measures, including a compliance agreement) or whether the contractor will instead be referred for suspension and debarment.

Keep reading this article at: http://www.mondaq.com/unitedstates/x/404154/

Protest deadline not met because debrief not required

Yet another unwary government contractor has been turned away by GAO because it failed to file its protest on time. Unsuccessful offerors that contest evaluation issues (rather than solicitation defects) have 10 days to file protests at GAO.

GAO-GovernmentAccountabilityOffice-SealThat generally applicable 10-day deadline is tolled when a “debriefing” is required in FAR Part 15 (and certain Part 16) procurements. But that tolling rule doesn’t apply when the FAR only requires that the agency provide an “explanation” to disappointed offerors (e.g., in FAR Parts 8, 12, and 13 procurements)—and does not mandate a “debriefing.” GAO’s decision in Gorod Shtor illustrates this rule by dismissing the protest of an offeror that fell into this bid protest trap.

Gorod Shtor wanted to sell drapery making and installation services for the U.S. embassy in Moscow. Gorod Shtor submitted a proposal for an IDIQ contract with the Department of State. Importantly, the RFQ was issued as a commercial item acquisition (under FAR Part 12) in which simplified acquisition procedures were applied under FAR Subpart 13.5. Award was to be made on a lowest-priced, technically acceptable basis.

The Agency’s award notice informed the disappointed offeror that the contract was awarded to a competitor, which Gorod Shtor believed did not meet certain RFQ requirements. The notice also stated “[i]f you desire a debriefing, please refer to FAR [] 52.212-1(l)” which lists the types of information to be provided by a debriefing but does not create a right to a debriefing. Gorod Shtor requested a debriefing and was informed of “the reasons why the agency had found the vendor to be technically unacceptable.”

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=402044

Administration moves ahead with federal contractor labor law guidance

The Obama administration proposed guidance that requires prospective contractors to disclose labor law violations from the past three years before they can get a contract. But a contractor advocacy group isn’t happy about it.

Dept. of LaborOn May 28, the Labor Department issued proposed guidance and the Federal Acquisition Regulation Council issued a proposed rule to help agencies implement an executive order signed by President Obama in July 2014.

The order is meant to ensure those contractors who “repeatedly violate the rights of their workers and put them in danger, don’t get contracts and thus can’t delay important projects and waste taxpayer money,” a fact sheet that was released with the order says.

Keep reading this article, including objections raised by an industry group, here: http://www.fiercegovernment.com/story/administration-moves-ahead-federal-contractor-labor-law-guidance-psc-pushes/2015-05-28

Georgia Tech’s June courses offer insights into federal contracting

The Contracting Education Academy at Georgia Tech is offering two courses in June 2015 that offer essential insights into the federal contracting process, from both a government and a contractor point-of-view.

  • Contract Planning in the FAR – CON 090-2 – covers how the federal government plans acquisitions, conducts market research, describes agency needs, and sets priorities for the acquisition of commercial and non-developmental items.  Students learn: the policies and procedures for acquisition planning; the policies pertaining to required and preferred sources of supplies and service; how to determine the appropriate type of contract, contracting technique, and terms and conditions; what socioeconomic programs apply; how to publicize a solicitation; and how to judge a contractor’s qualifications.  Details for registering for this June 1 – 5, 2015 course can be found here: https://pe.gatech.edu/courses/con-090-2-contract-planning-far.
  • Contracting Officer Representative and the Contingency Contracting Environment – COR 206/222 –  provides a comprehensive review and instruction on the role and responsibilities of the Contracting Officer Representative (COR), including ethical situations and cultural differences a COR may experience while deployed in a contingency operation.  Students learn how to: review contract terms and conditions; understand each party’s role and responsibility in contract administration; document and obtain approval for contract changes and modifications; monitor contract expenditures; conduct contract close-outs; and manage ethical and legal issues in the contingency contracting environment.  Details for registering for this June 8 – 12, 2015 course can be found here: https://pe.gatech.edu/courses/cor-206222-contracting-officer-representative-course-and-contingency-contracting-environment.

DAU logoAcademy identifier - gold & black w-white bkgrndThe Contracting Education Academy at Georgia Tech is an approved equivalency training provider to the Defense Acquisition University (DAU) and provides continuing education training to acquisition and government contracting professionals as well as to business professionals working for government contractors or pursuing opportunities in federal contracting.

 

GSA ‘turns the lights on’ at Acquisition.gov

Web designers will tell you that it’s important for a website to look like someone lives there, that it’s not a smattering of links and pages that look as if no one is home. Well, here at GSA we have turned the lights on at acquisition.gov.

Since September, GSA has been working to transform acquisition.gov into a more comprehensive, user-friendly hub for contracting officers (COs), one that allows them to electronically search past and present versions of the Federal Acquisition Regulation  (FAR) and GSA Acquisition Manual (GSAM), and stay-up-to-date on the latest developments in federal acquisition.  In addition, the new website organizes other acquisition resources (i.e. Supplemental Regulations, Acquisition Systems, Training) into clear, comprehensive categories – providing easy access to the resources that COs use most often.

Acquisition.gov photo
The General Services Administration (GSA) re-launched the Acquisition.gov website on April 13, 2015.

 

Are you looking for every instance of the phrase “collective bargaining” in the FAR or GSAM? Just type those words in the search engine and you’ll get just that. Do you want to know what Part 25, Subpart 10, Section 8, and Subsection 2 said in 1996? No problem. Search the “Archives” by “FAC Number” (Federal Acquisition Circular) and “Effective Date.” Do you want to know about the latest change in federal acquisition? Check out the website’s snazzy new rotating feature block, multimedia library, and “News and Announcements” section.

Acquisition.gov Transformation At A Glance:

Improved Searchability  

  • FAR/GSAM Current —  COs can now search the most current version of the FAR and GSAM using keywords and an electronic table of contents. To learn more about how to search the current version of the FAR, see the media section on the home page.
  • FAR/GSAM Archives — COs can now search past versions of the FAR and GSAM by “FAC Number” and “Effective Date.” The archives go back to 1996.

To learn more about how to search past versions of the FAR, see the media section on the home page.

Real-Time Updates  

  • News and Announcements — Includes the latest press releases and blogs about federal acquisition.
  • Rotating Feature Block — Features recent changes to the FAR.
  • Multimedia Library — Includes instructional videos, speeches, and other public commentary from leaders in federal acquisition.

Additional Resources

  • Supplemental Regulations — Includes links to supplemental federal regulations for all agencies.
  • Training — Features links to training and continuous learning institutes, as well as professional organizations connected to the federal acquisition process.
  • Acquisition Systems — Includes links to other frequently-used acquisition resources like FedBizOps and the Federal Procurement Data System.

Check out the acquisition.gov transformation here. If you have questions about the transition or suggestions on how to further transform the site, email acquisition_gov.systemadmin@gsa.gov.

Source: http://gsablogs.gsa.gov/gsablog/2015/04/13/gsa-turns-the-lights-on-at-acquisition-gov/

FAR prohibitions on human trafficking take effect Mar. 2, 2015

The Federal Acquisition Regulation (FAR) Council has published the a  final rule implementing Executive Order 13627 and title XVII of the National Defense Authorization Act of 2013, requiring contractors on federal contracts to certify, both prior to award and annually, their human trafficking compliance and monitoring.  The Final Rule prohibits contractors from:

  • engaging in severe forms of human trafficking during the period of performance of the contract,
  • procuring commercial sex acts during the period of performance of the contract,
  • using forced labor in the performance of the contract,
  • destroying, concealing, confiscating or otherwise denying employees’ access to identity or immigration documents,
  • engaging in fraudulent or misleading recruitment practices,
  • employing recruiters that violate the labor laws of the country where the recruitment takes place,
  • charging recruiting fees,
  • failing to provide return transportation to an employee who is not a national of the country where the work is to take place, subject to limited exceptions,
  • providing housing, if required, that fails to meet host country safety or housing laws, and
  • failing to provide a written work document, if required.

The Final Rule is broadly applicable to all Federal contractors and subcontractors, regardless of contract type or dollar amount, including contractors providing commercial items, commercially-available off-the-shelf items, or goods on General Service Administration (GSA) Federal Supply Schedules (FSS).  In addition, certain contractors providing goods and services abroad will be required to make new certifications and implement compliance plans.  Failure to comply may result in financial penalties, termination for default, suspension or debarment, and potential litigation, including false claims suits.

This Final Rule will be effective on March 2, 2015.  The FAR Council has recommended that Contracting Officers to include the Final Rule in Indefinite Delivery/Indefinite Quantity (IDIQ) contracts with task orders remaining after March 2 through bilateral modification, so both new and existing contracts will be subject to the Final Rule after that date.

To supplement and implement the new FAR provisions in Department of Defense (DoD) contracts, DoD is issuing a final rule in the form of its Defense Federal Acquisition Regulation Supplement (DFARS) at Subpart 252.235-7004.  In addition, DoD Procedures, Guidance and Information (PGI) can be found at PGI 222.17.  Included is a sample checklist for auditing compliance: CTIPs_Audit_Checklist_10_May_2011.

IG reports continued weaknesses in small business reporting and 8(a) program

The Office of the Inspector General (IG) of the U.S. Small Business Administration reports on 11 weaknesses in a range of SBA programs.  Two of the “challenges” identified in the Oct. 17, 2014 report pertain directly to small business participation in federal contracting:

  • Procurement flaws allow large firms to obtain small business awards, and allow agencies to count contracts performed by large firms towards their small business goals.
  • The SBA needs to modify the Section 8(a) Business Development  Program so more firms receive business development assistance, standards for  determining economic disadvantage are justifiable, and the SBA ensures that firms follow 8(a) regulations when completing contracts.

SBA - IGThe IG’s full document, entitled “Report on the Most Serious Management and Performance Challenges Facing the Small Business Administration In Fiscal Year 2015″ can be downloaded here, but the text of the IG’s finding on the two point just cited appears below.

Procurement Reporting

The Small Business Act established a Government-wide goal that 23 percent of the total value of all prime contracts be awarded to small businesses each fiscal year. As the advocate for small business, the SBA should strive to ensure that only small firms obtain and perform small business awards. Further, the SBA should ensure that procuring agencies accurately report contracts awarded to small businesses when representing their progress in meeting small business contracting goals.

In September 2014, we issued a report that identified over $400 million in FY 2013 contract actions that may
have been awarded to ineligible firms. We also identified over $1.5 billion dollars in contract actions for
which the firms were in the 8(a) or HUBZone programs at the time of contract award, but were no longer in
these programs in FY 2013. Previous OIG audits and other Government studies have shown widespread
misreporting by procuring agencies, since many contract awards that were reported as having gone to small
firms have actually been performed by larger companies. While some contractors may misrepresent or
erroneously calculate their size, most of the incorrect reporting results from errors made by Government
contracting personnel, including misapplication of small business contracting rules. In addition, contracting
officers do not always review the on-line certifications that contractors enter into Government databases
prior to awarding contracts. The SBA should ensure that procuring agencies accurately report contracts
awarded to small businesses when representing their progress in meeting small business contracting goals,
and that contracting personnel are reviewing on-line certifications prior to awarding contracts.

The SBA revised its regulations to require firms to meet the size standard for each specific order to address a
loophole within General Services Administration Multiple Awards Schedule (MAS) contracts, which contain
multiple industrial codes that determine the size of the company. Previously, a company awarded an MAS
contract could identify itself as a small business on individual task orders awarded under that contract, even
though it did not meet the size criteria for the applicable task. Thus, agencies received small business credit
for using a firm classified as small, when the firm was not small for specific orders under the MAS contract. In
addition, the SBA submitted a final rule to the Federal Acquisition Regulations (FAR) Council to implement the
changes made to its regulations in the FAR. The SBA also updated its standard operating procedure (SOP) to
ensure consistency in conducting its surveillance reviews to assess Federal agencies’ management of their
small business programs and compliance with regulations and applicable procedures.

While the SBA has made substantial progress on this challenge, we are working with the Agency to verify that
the surveillance reviews were conducted in a thorough and consistent manner.

                                                                                               ***

8(a) Program

The SBA’s 8(a) Business Development (BD) Program was created to assist eligible small disadvantaged
business concerns to compete in the American economy through business development. Previously, the
SBA did not place adequate emphasis on business development to enhance the ability of 8(a) firms to
compete, and did not adequately ensure that only 8(a) firms with economically disadvantaged owners in
need of business development remained in the program. Companies that were “business successes”
were allowed to remain in the program and continue to receive 8(a) contracts, causing fewer companies
to receive most of the 8(a) contract dollars and many to receive none.

The SBA has made progress towards addressing issues that hinder its ability to deliver an effective 8(a)
BD Program. For example, the SBA expanded its ability to provide assistance to program participants
through its resource partners—small business development centers, service corps of retired executives,
and procurement technical assistance centers. In addition, the SBA has taken steps to ensure business
opportunity specialists assess program participants’ business development needs during site visits. The
SBA also revised its regulations, effective March 2011, to ensure that companies deemed “business
successes” graduate from the program. These regulations also establish additional standards to address
the definition of “economic disadvantage.” Agency officials stated that the rule-making process served
as an adequate proxy to objectively and reasonably determine effective measures for economic
disadvantage, and were not aware of any reliable sources of data to determine economic disadvantage.

However, for the second consecutive year, the SBA has not completed updating its SOP for the 8(a) BD
Program to reflect the March 2011 regulatory changes. In addition, we continue to maintain that the
SBA’s standards for determining economic disadvantage are not justified or objective based on the
absence of economic analysis. In December 2011, the SBA awarded a contract to develop and deploy a
new IT system by December 2012 to assist the SBA in monitoring 8(a) program participants. However,
the new system has not been deployed, and its delivery date and capabilities are undetermined at this
time.

8(a) subcontracting limitations: Compliance oversight lacking

Compliance with the limitations on subcontracting are not adequately being monitored by the contracting officers responsible for 8(a) contracts, according to a recent GAO report.

After reviewing a representative sample of ten 8(a) contracts, the GAO determined that contracting officers effectively monitored subcontracting limit compliance on two of those contracts.  In other cases, agency contracting officers failed to effectively monitor compliance, even in situations presenting a heightened risk of potential violations–such as where ineligible incumbents were serving as subcontractors.

The GAO report documents “confusion” among contracting officers regarding their obligations to ensure compliance with subcontracting limits.  Some contracting officers were confused about what sba-logothe FAR, Small Business Act, and SBA partnership agreements require.  Other contracting officers seemed to assume that their CORs were primarily responsible for ensuring compliance with the subcontracting limits – although all 10 of the CORs in question “stated that contracting officers have not delegated this responsibility to them and they do not take steps to monitor the amount of subcontracted work.”

Keep reading this article at: http://smallgovcon.com/statutes-and-regulations/8a-subcontracting-limitations-compliance-oversight-lacking/