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Tag: National Defense Authorization Act

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.

CTA and Small Businesses

In January, Congress enacted the 2021 National Defense Authorization Act. It includes amendments to the U.S. Anti-Money Laundering Act, the most noteworthy of which is the Corporate Transparency Act (CTA). (JDSupra, March 22, 2021)

The most significant elements of the CTA to know now:

  • CTA legislation requires “beneficial” business owners to report specific information to the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN). A beneficial owner directly or indirectly controls at least 25 percent of the company. Beneficial owners must report their full name, date of birth, current address, and unique identification number. This information will help  prevent the formation of shell companies and money laundering as well as terrorist organization funding.
  • Unless exempt, all privately held businesses in the U.S. are subject to the CTA reporting requirements.
  • CTA becomes effective 1 January 2022. Businesses formed after that time must submit reports within two years.  All business changes are required to be reported within one year.
  • Businesses should add beneficial owner information collection into their operations especially when there are multiple qualifying beneficial owners, as reporting/update deadlines can be cumbersome.
  • Failure to report or update beneficial owner information may include civil penalties up to $500 per day until the violation is corrected as well as criminal fines up to $10,000 and imprisonment for up to two years. (ibid)

The good news is that business entities have almost a full year to get their CTA reporting controls in place, to meet the 1 January 2022 effective date.

Have some CTA regulation reporting questions? Give us a call.

 

Alliant 2 is Out/Polaris is In

After a year of protests and federal court hearings, the Government Accountability Office has canceled its $15 billion Alliant 2 Small Business contract. GAO is calling the replacement contract “Polaris.” A GSA spokesperson said, “Polaris will not only guide small businesses through the federal market, it will also help GSA customer agencies through the acquisition of IT service-based solutions, and give GSA a chance to improve our offerings and set the agency on a solid course for the future.” (GSAblogs.gsa.gov, October 1, 2020)

Administration sees the industrial base broadening by:

  • Pricing Strategy: GSA plans to increase its pool of qualified small businesses that serve federal agencies. GSA will employ Section 876 of the Fiscal Year 2019 National Defense Authorization Act, allowing contract awards to qualifying contractors without consideration of prices for hourly services. Focus on price competition ultimately takes place at the task order level.
  • On-ramps: Allows for an expanded industrial base as technology changes and for vendors to be considered on the GWAC following an initial award period.
  • Opportunity Expansion: An increased opportunity for HUBZone and woman-owned businesses.
  • Embracing Technology to Maximize Efficiency: Polaris will provide agencies with access to emerging technology providers, especially those offering artificial intelligence, automated technologies, blockchain, 5G implementation, cybersecurity, and cloud. (ibid)

The vendor evaluation strategy will be similar to that used in the Veterans Technology Services 2 and Alliant 2 contracts. Both were guided by industry comments. FAS may utilize an online proposal submission tool to speed up Polaris contract awards, as well as a modified evaluation strategy. (Federal Computer Week, October 5, 2020)

Questions about the Polaris evaluation strategy and how your company might do business on the platform? Give us a call.

Practical Applications on the Chinese Tech Ban

On 23 July, the Defense Department released a memo explaining requirements for companies and contractors when the ban of telecommunications equipment made by Huawei and other China-based companies goes into effect. (Federal Computer Week, July 27, 2020)

Beginning 13 August, no contracts will be issued or extended to contractors using technologies or services and equipment made by Hikvision, ZTE or those listed in section 889(a)(1)(B) of the National Defense Authorization Act (NDAA) for Fiscal Year 2019. Any contract, task/delivery order, and off-the-shelf items purchased after 13 August must include language invoking regulation for the ban. Additionally, indefinite delivery contracts are required to be modified. (ibid)

There is a waiver process, however, pursuable by agencies. According to Alan Dhvotkin PSC executive vice president and counsel, the waiver “will most likely begin with issues identified by the telecommunications provider to its federal agency customer. The federal agency then asks for an ODNI review, which will conduct a risk assessment.” A granted waiver lasts two years and may be requested at any time. (Federal Computer Week, July 22, 2020)

Have questions or need a waiver? Give us a call.

 

New E-Commerce Platform

The 2018 Defense Authorization Act requires the government to utilize a new e-commerce platform. Well, after several protests, several solicitation rewrites, and the COVID-19 pandemic, we now have the proof-of-concept phase, with three vendors: Amazon Business, Overstock.com, and Fischer Scientific will allow access to their e-commerce sites with micropurchases of $10,000 or less. By awarding a contract to three vendors, GSA hopes to ensure pricing competition and high service levels. (Federal News Network, June 29, 2020)

During the 30 day proof-of-concept phase, agencies receive access to order from vendors’ e-commerce platforms for testing and stakeholder feedback. Participating agencies include Veterans Affairs, Justice and Labor, the Environmental Protection Agency, and GSA. Additional agencies may join in the coming months.

However, contractors are still questioning the apparent two sets of rules for micropurchases; those made under e-commerce and those made from other platforms, such as GSA Advantage. They believe transparency to be vital as well as understanding the pilot parameters. Remaining questions include e-marketplace conflict of interest issues, restriction on platform provider uses of third party transactional data, and how country of origin and counterfeit products are handled.” (ibid)

Not sure how government agencies ordering from e-commerce platforms will affect your ability to do business with them? Give us a call.