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Federal Contracting

New Emissions Rule right around the corner

The White House proposed the Federal Supplier Climate Risks and Resilience Rule on November 10. With the new rule, larger Federal contractors will face new requirements to report data on their specific greenhouse gas emissions to protect the Federal Government’s supply chains from climate-related financial risks. (MeriTalk November 11, 2022)

According to the White House the rule, “would require major Federal Contractors to publicly disclose their greenhouse gas emission and climate-related financial risks and set science-based emissions reduction targets.” (ibid)

The White House said, “under the proposed rule, the largest suppliers including Federal contractors receiving more than $50 million in annual contracts would be required to publicly disclose specific Scope 1, Scope 2, and relevant categories of Scope 3 emissions, disclose climate-related financial risks and set science-based emissions reduction targets. Federal contractors with more than $7.5 million but less than $50 million in annual contracts would be required to report Scope 1 and Scope 2 emissions. All Federal contractors with less than $7.5 million in annual contracts would be exempt from the rule. Small businesses with over $7.5 million in annual contracts would only be required to report Scope 1 and Scope 2 emissions under the proposed rule.” These disclosures and rules help to contribute to President Biden’s Federal Sustainability Plan. (White House Fact Sheet November 10, 2022)

The types of emissions that require disclosure are direct emissions, indirect emissions from purchased energy, and indirect value chain emissions. (MeriTalk November 11, 2022)

The White House said, “the proposed rule leverages widely-adopted third-party standards and systems that many Federal contractors already use when disclosing their emissions and setting emissions reduction targets, including the DCP environmental reporting system, the Task Force on Climate-Related Financial Disclosures (TCFD) Recommendations, and the Science Based Targets Initiative (SBTi) criteria.” (ibid)

The proposed rule is issued through public comment by the Federal Acquisition Regulatory Council (FARC) and amends the Federal Acquisition Regulation (FAR). (ibid)

Questions concerning the new Emissions Rule and the reporting requirements? Give us a call.

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A Technology “Schedule” in the making

The Small Business Research program is in place for companies to use to develop state-of-the-art technologies. GSA is working to build a contract, much like the GSA Schedule platform, to give agencies access to these technologies. The idea is to shorten the time between a prototype of a new technology and the time it takes to get it to government users. (Washington Technology October 28, 2022)

Federal users lose out on many technologies because they never advance to phase two of the program. According to Jim Ghiloni, acting innovation sector director and IDIQ labs group manager at the General Services Administration (GSA), phase three becomes a challenge because it requires agencies to fund further development work to take advantage of new technology. Ghiloni recently said GSA is working on a government-wide contract vehicle that gives agencies access to these emerging technologies. (ibid)

Ghiloni is working on the business case to present to GSA while market research is ongoing. A draft solicitation is expected in the spring of 2023. Ghiloni plans for the vehicle to be in place by the fall of 2023. (ibid)

The plan is for the contract to look a lot like the GSA Schedule program. Here’s how it would work:

  • Companies finish phase two of an SBIR contract with technology ready to sell
  • Submit a proposal to get a spot on the vehicle
  • Market technology to government agencies (ibid)

All SBIR contracts have three phases. The first phase is developing proof of concept. The second phase is ongoing research and development to prove the technology is commercially viable. Phases one and two of an SBIR contract are funded by the SBIR program. For a company to move to phase three, an agency buyer is needed to commercially develop the technology. To date, this has been difficult because there has not been a mechanism for agencies to use to fund the third phase. (ibid)

Ghiloni hopes to make it easy for agencies to start taking advantage of emerging technologies while at the same time, drawing new entrants to the government marketplace. (ibid)

Is your small business developing an emerging or new technology? Give us a call.

GSA steps up in the nick of time

GSA temporarily lifted restrictions on economic price adjustments (EPAs) in its contracts in March of this year, to fight inflation. With prices still rising, the agency this month extended the flexibilities through March 2023 and said officers can now make adjustment decisions without the need for approval from a more senior official. (Federal Times September 20, 2022)

As more and more contractors feel the crushing effects of supply chain shortages, price volatility, rising costs, and fixed income impact, a need for immediate relief for contractors couldn’t come quickly enough. The latest memo takes power that was tied up in the request and approval process and puts it into the hands of contractors and procurement officers to evaluate, make decisions and keep business uninterrupted. (ibid)

“Inflation and uncertain economic market conditions erode scarce contracting dollars, cause severe hardship on federal partners, and discourage new entrants from pursuing federal acquisition,” said GSA in the memo announcing the extension. “The acquisition workforce has both the authority and the tools to take action to mitigate the impact of inflation in federal contracts.” (ibid)

Contractors no longer have to hold their contracts for a minimum of a year before submitting price increases. The new guidance also temporarily does away with the limit of three increases per year and the 30-day waiting period between requests. (ibid)

Contractors might consider the following:

  • Request adjustments to contracts if non-price changes to the terms offer some relief to the problems caused by inflation.
  • Determine whether their current situation with once-in-a-generation inflation warrants contractual relief.
  • File a formal request to the contracting officer even if the chances of success are low, so DOD can obtain quantitative data on the scope of the issue.
  • Encourage contracting officers to amend solicitations to include EPA clauses when preparing bids. (JDSupra September 21,2023))

Is your current contract not keeping up with inflation? Give us a call, we can help.

Primes are on the line

On August 22, 2022, the Small Business Administration (SBA) will start providing small businesses with additional ways to show past performance ratings. Past performance ratings are necessary to compete for prime federal contracts. (FEDSCOOP July 25, 2022)

The SBA published a new final rule in the Federal Register that gives small businesses two additional methods to prove qualifying past performance. The first is a joint venture where the small business was part of the joint venture, performing contract work. The second is the subcontracting plan performed by a first-tier subcontractor, under a prime contract. (ibid)

The rule executes Section 868 of the National Defense Authorization Act of fiscal 2021. The goal is to make it easier for small business subcontractors to secure past performance ratings needed to compete for prime contracts. It allows subcontractors to request ratings from contracting officers and prime contractors they have worked with in the past. (ibid)

“SBA believes that, by implementing this rule, the government will be able to attract new small business prime contractors. This will enhance competition in government contracting and provide agencies with increased access to innovative products and services,” according to the SBA. (ibid)

The rule removes the timeline requirement on past performance ratings. The rule allows agencies to use their discretion and gives subcontractors a minimum of 30 calendar days after a performance period’s completion to request ratings from prime contractors. This will keep subcontractors from having to wait until their contract work is complete to request ratings. (ibid)

The requirement to respond to subcontractors’ requests is included in primes’ subcontracting plans, a failure to comply may lead to contract termination, withholding of award fees, lower past performance ratings for subcontracting, liquidated damages, and possibly debarment for “willful or repeated” cases. (ibid)

The SBA has added to the final ruling that subcontractors should notify the contracting officer in the event that the prime contractor fails to submit the requested rating within the rule’s prescribed timeframe. All past performance evaluation factors should align with those of the Contractor Performance Assessment Reporting System (CPARS). (ibid)

The SBA is adding to the final rule that the prime contractor shall use the five-scale rating system – Exceptional, Very Good, Satisfactory, Marginal, and Unsatisfactory. (ibid)

Are you a small business trying to obtain past performance ratings? Give us a call.

LGBTQI small businesses getting a fair shake

One of GSA’s and the Biden administrations’ goals is to increase the diversity of businesses that work with the federal government. To make that goal a reality, the General Services Administration (GSA) is collaborating with the LGBT Chamber of Commerce to enhance access to GSA contracting for LGBTQI-owned small businesses. (Federal Soup July 7, 2022)

GSA announced that they are working with the LGBT Chamber of Commerce to collaborate on an awareness-building campaign to increase information about GSA programs and services with LGBTQI-owned small businesses per a memorandum of understanding with the National LGBT Chamber of Commerce. (ibid)

GSA Administrator Robin Carnahan said, “we need everyone’s ideas and products to make America stronger, including the vibrant communities of LGBTQI-owned businesses throughout the country. We’re4 thrilled to be working more closely with NGLCC and its network to get the work out about how they can help us meet our mission and bring value to the government.” (ibid)

The LGBT Chamber of Commerce has memoranda of understanding with many other federal agencies. In addition, the organization has a national presence and a network of local affiliate chapters. Both will receive communications via the new effort. (ibid)

According to Justin Nelson, co-founder, and president of the National LGBT Chamber of Commerce, “diversity is good for the business of government. The American Dream must be open to every American, including the 1.4 million LGBTQ business owners that help power the national economy.” (ibid)

This is another effort to use the government’s purchasing power to accomplish the Biden administration’s equity, diversity and inclusion goals. (ibid)

Would you like to know more about this program or other efforts such as set-asides for Black-owned, Latino-owned or other minority-owned businesses? Give us a call.