What Brand is Your Telcom and Video?

Section 889 of the FY 2019 National Defense Authorization Act was passed to fight national security and intellectual property threats to the United States.  The legislation includes two prohibitions Part A and Part B. (GSA Section 889 Industry Focused Flyer, GSA.gov, July 16, 2020)

Part A, which became effective on August 13, 2019 bans telecommunications/video surveillance equipment made by the following companies:

  • Huawei Technologies Company
  • ZTE Corporation
  • Hytera Communications Corporation
  • Hangzhou Hikvision Digital Technology Company
  • Dahua Technology Company

Part A can be found in the Federal Acquisition Regulation (FAR) at FAR subpart 2.1.

Part B, effective 13 August 2020, prohibits the government from contracting with any organization that uses equipment or services of any of the companies listed under Part A. Part B applies, whether or not that usage is in performance of work under a Federal contract. In other words, if you use any of the banned companies in the fulfillment of a  non-government contract, you will be prohibited from working with the government. All contractors must verify whether they do or do not use prohibited telecommunications/video surveillance equipment or services. Part B has been added to the Federal Acquisition Regulation (FAR) at FAR subpart 4.21. (ibid)

GSA recommends companies to complete an in-depth review of all in-house technology to rule out using banned companies in Part A . If prohibited equipment or services are being used, companies that wish to continue doing business with the government must eliminate them. GSA does not take responsibility for changes contractors make, unless done so by a modification to a current contract.

However, two possible waiver procedures with extremely high standards are available. This is to ensure waivers are not used to get “around” the prohibitions.

GSA is modifying all solicitations, Indefinite Delivery Vehicles (IDVs), GWACs, and other IDIQ contracts, to include Section 889 Part B requirements immediately. These requirements will be added to GSA’s existing non-IDV contracts as those contracts have their periods of performance extended.

GSA is hosting the following events so that industry may obtain additional guidance:

  1. The GSA Office of Small Business Utilization webinar on Section 889, July 30, 2020, 2:00 p.m. EST, registration may be found here.
  2. GSA recorded virtual webinar August 12, 2020, at 1:00 p.m. EST, registration forthcoming. This webinar will include leaders from GSA’s business lines explaining how they are implementing Section 889 into their business lines and panelists will answer pre-collected questions. (Questions may be sent to gsaombudsman@gsa.gov to arrive by COB August 5, 2020.) (ibid)

GSA recommends that vendors study the tools and publications to aid their understanding and compliance, as provided in Acquisition.gov.

Not certain if your contract is affected by Section 889 Part B and if so, what you can do? Give us a call.

Pilot Programs to Decrease Bid Cycle Time

Selling to the government can be a difficult and lengthy process for the most patient of vendors. The buying process in private industry might take a week or two whereas federal buying can take a year or more. Added to that, the costs associated with bidding on government contracts, with no guarantee of a contract, often makes doing business with the government less than appealing. Unfortunately, this makes many companies with innovative products and services steer clear of working with the government.

Now two agencies, the Department of Homeland Security (DHS) and the Internal Revenue Service (IRS), are introducing programs to address costly and time-consuming barriers. (Washington Technology, June 2, 2020)

DHS created the Procurement Innovation Lab; its mission to diminish barriers to competition while opening up the competition to nontraditional companies and by creating multiple awards from a single solicitation. Within the lab, teams test Federal Acquisition Regulation (FAR) flexibilities. Working with the Department of Defense GSA, DHS created the Commercial Solutions Opening Pilot. This affords participants greater latitude when purchasing innovative products below $10 million. (ibid)

DHS is also working to greatly reduce the lengthy proposal process through a phased proposal model. Phase one might involve a lightweight proposal of five pages or possibly a 30-minute phone interview. Then DHS would advise the vendor on how competitive their idea is and let the vendor decide whether it makes sense to move forward with a proposal. Additionally, DHS is working to receive oral presentations and product demonstrations using a paperless process. This allows vendors an opportunity to showcase their wares, and gives the government insight into those vendors they might award contracts to.  The phased proposal allows many vendors the opportunity to engage with the government when otherwise they would not be able to afford to do so. It allows the government to stay on top of innovative solutions that they otherwise might have missed out on. (ibid)

The IRS wants to phase in a pilot program as well. Their goal is to work with non-traditional small businesses to rapidly prototype and test emerging technologies. Project phasing will help to circumvent locking into a single vendor’s solutions as new (and often better) solutions are made available. (ibid)

Questions about the DHS and IRS programs and how you might prepare a lightweight proposal? Give us a call.

Speedy Payments? Yes Please.

The Federal Acquisition Regulation (FAR) is changing to allow government contracting small businesses to get paid within 15 days of invoicing. Furthermore, the Department of Health and Human Services (HHS), the Department of the Treasury (Treasury), the Department of Homeland Security (DHS) and the General Services Administration (GSA) are working together to issue a memorandum that authorizes the expedited payments in advance of the updated changes to the FAR. (JDSUPRA, May 14, 2020)

Contractors should contact their government Contracting Officer to facilitate those payments. For example, a DHS Small Business Innovation Research (SBIR) recipient currently paid within 30 days of invoicing may be eligible for a contract modification to accelerate payments upon the exercise of any options under that contract. (ibid)

The National Defense Authorization Act for Fiscal Year 2020, Section 873, requires agencies to establish an accelerated payment date for certain contracts with a goal of payment 15 days after an invoice is received, if a specific payment date is not established by the contract. The change will be implemented via an applicable FAR revision.

Other formal additions to the FAR include 52.212-5 (Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial items), FAR 52.213-4 (Terms and Conditions – Simplified Acquisitions (Other Thank Commercial Items)), and FAR 52.244-6 (Subcontracts and Commercial Items.) (ibid)

This is great news for small businesses looking to decrease hardships produced by the COVID-19 pandemic.

Questions about the FAR changes and the expedited payment memorandum? Give us a call.

Emergency Rules

Government ontractors and small businesses should be aware of increased opportunities during the current COVID-19 national emergency. The government is permitted, during a national emergency, to set aside solicitations to allow awards “only to offerors residing or doing business primarily in the area affected by …[a] major disaster or emergency.” Contractors can verify if they fall into this category by reviewing Federal Acquisition Regulation 52.226-3(d). (Law360.com, April 13, 2020)

A national emergency declaration allows the government to (restrict) certain solicitations to small businesses in certain areas. These solicitations are either a set-aside or an evaluation preference is given to small businesses. (ibid)

During national emergencies, large contractors should look to team with small businesses, or to current teaming agreements already in place. In addition, contractors who are at the ready to produce/provide goods or services may be called on to contract with agencies to battle COVID-19. (ibid)

Micro purchase thresholds are another acquisition procedure government agencies may use during a national emergency. These allow for a simplified acquisition methodology for specific items or services required under emergency situations, such as the COVID-19 national emergency. (ibid)

State and local governments may also procure under the Stafford Act, wherein state governors request financial relief via federal grants that allow procurement under their own procedures. The Stafford Act authorizes federal contracts for “debris clearance, distribution of supplies, reconstruction, and other major disaster or emergency assistance activities.” In 2006 the Local Community Recovery Act amended the Stafford Act mandating local organizations to be given preference when using full and open competition. The FAR was also amended to align with the Local Community Recovery Act. Under the act, if a contractor does not meet all of the Recovery Act stipulations there are other factors that may be considered. (Contractors may self-certify that they are local.) (ibid)

Other streamlining acquisition procedures are available under federal supply schedule contracts, multi-agency blanket purchase agreements, and multi-agency indefinite-delivery contracts. Additionally, there is an easing of the requirement that a contractor be registered in SAM.gov at the time an offer is submitted to the government. (ibid)

The emergency declaration allows state and local governments to purchase from all GSA schedules. It also encourages accelerated payments to small business contractors.  (ibid)

Additional modified procedures to facilitate swift responses are:

  • Relaxation of qualifications requirements
  • Use of sole-source contracts
  • Use of oral requests for proposals
  • Use of letter contracts
  • Interagency acquisitions
  • Awards to small disadvantaged businesses
  • Retroactive overtime approvals
  • Waivers of bid guarantees when an emergency exists
  • Use of protest overrides where necessary for a contracting process to continue

In order to track procurements related to COVID-19, GSA added a National Interest Action (NIA) code to SAM.gov. To find information on the site, simply type COVID-19 2020 in the search bar. (ibid) Contractors can register with SAM.gov under the disaster response registry, and be sure to monitor the portals most closely aligned to the goods or services you provide.

Have questions about the many opportunities available under the current national emergency? Give us a call.

New Cybersecurity Certification Requirements

The Office for the Under Secretary of Defense and Sustainment (OUSD (A&S)) recently released its Cyber Security Maturity model Certification (CMMC). DoD stakeholders, University Affiliated Research Centers (UARCs), Federally Funded Research and Development Centers (FFRDCs) and the Defense Industrial Base (DIB) all had a hand in developing the CMMC model. This model measures cybersecurity maturity using five levels (from basic to advanced) and aligns a set of processes and practices with the type and sensitivity of the information to be protected and any associated threats to that information. (CMMC Model v1.0, January 30, 2020)

DoD’s CMMC enhances the protection of:

  • Federal Contract Information (FCI) provided or generated by the government, but not intended for public release
  • Controlled Unclassified Information (CUI), which requires safeguarding or dissemination consistent with laws, regulations and government-wide policies. (ibid)

The CMMC model includes the safeguarding requirements for FCI spelled out in FAR clause 52.204-21 and the security requirements for CUI stated in the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171 per DFARS clause 252.204-7012 [3,4,5].

Included in the CMMC model is a certification piece verifying the implementation of cybersecurity maturity measure processes and practices. This is intended to deliver assurance to the DoD that contractors and subcontractors can sufficiently protect CUI at a level equal to the risk. (ibid)

To obtain a full overview of the CMMC Model, domains, practices, and processes, please review the Cybersecurity Maturity Model Certification.

Have questions about the effect on your current contract or one in works? Give us a call.