Tag Archives: Government Regulations

Pentagon To Unveil New Acquisition Structure

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Pentagon Reorganization

“DEFENSE NEWS”

“The Pentagon is scheduled to deliver its new acquisition structure to Congress,  a major step toward redesigning how the building researches and procures equipment.

The 2017 National Defense Authorization Act instructed the Pentagon to devolve the undersecretary of acquisition, technology and logistics, or AT&L, into two separate jobs: undersecretary for acquisition and sustainment, or A&S; and a new undersecretary for research and engineering, or R&E, essentially a chief technology officer.

Those changes are expected to be in place by Feb. 1, 2018.

Congress purposefully allowed time for the Department of Defense to come up with its own road map on how the split should occur, which the department is supposed to deliver to Capitol Hill on Aug 1[2017].

Sources say there were discussions about delaying that delivery, in order to allow newly installed Deputy Secretary of Defense Patrick Shanahan a chance to weigh in. However, all indications are that the department intends to hit its Tuesday deadline.

It is important to note that this report will not be the final say in the issue. Its purpose is to inform Congress of how the department will split the duties of AT&L and the broad organizational strategy, but does not need to detail the nuts and bolts of currently shared services. That also means that Shanahan and Ellen Lord, the longtime Textron executive-turned-AT&L nominee who may be confirmed this week, will have a chance to continue to give input going forward.

An interim, two-page memo to Congress was delivered March 1, which contained few details about how the building is approaching the question of devolving AT&L into the new offices.

Congress, meanwhile, is trying to balance out how to give senior leaders a chance to weigh in and making sure the DoD meets the Feb. 1 deadline. And while the report will be happily received in Congress, there is skepticism about what the DoD will actually deliver and how closely it will hew to Congress’ vision of how the new structure should look.

Bill Greenwalt, a longtime defense acquisition expert who spent two years as a staffer on the Senate Armed Services Committee where he had a central role crafting McCain’s acquisition changes, emphasized that the Pentagon’s thoughts are recommendations and that Congress will have final say.

“I think it will be a back and forth between the Congress and administration in terms of how to make this work,” he told Defense News. “The key thing for Congress is R&E should be driving innovation. A&S should be providing the oversight structure. The boxes shouldn’t be transferred around, it should be a cultural shift.”

SCO, DIUx likely folded under R&E

While the majority of the changes to the AT&L structure will entail a reshuffling of offices already under central control, there are two notable offices that may be brought in house, whether they desire it or not.

The Strategic Capabilities Office, or SCO, and the Defense Innovation Unit Experimental, or DIUx, were two pet projects of former Secretary of Defense Ash Carter. The SCO is focused on finding innovative solutions to near-term challenges, while DIUx is charged with creating ties between the DoD and the commercial technology sector.

Notably, both offices have existed as quasi-independent entities. DIUx actually started as a report inside the AT&L structure before being relaunched a year ago following a lack of progress in its mission; it then became a direct report to Carter. The SCO, meanwhile, was created by Carter during his time as deputy secretary of defense and was formally introduced to the world by Carter during the fiscal 2017 budget rollout.

With Carter gone and Congress seeking to improve innovation inside the building, there is pressure from the Hill to see those groups folded into the new R&E portfolio. In a May 18 interview, Mary Miller, acting assistant secretary of defense for research and engineering, said SCO and DIUx “would naturally fit in the USDR&E, that’s the intent.”

“If we set this undersecretary up as we believe we will, as we’re hoping this turns out to be and it will be a select-in to this whole new culture we’re establishing, we don’t need to have special groups that were set up just to be different, because that will be the undersecretary mission,” Miller said during the interview.

Greenwalt said that if the Pentagon crafts the R&E spot “right,” groups like DIUx, SCO, the various rapid capabilities offices and perhaps the Defense Advanced Research Projects Agency should all fall under its control.

When it was pointed out to him that regardless what the Pentagon says, Congress could step in and demand those groups fall under R&E’s control, Greenwalt smiled. “Right. That’s the back and forth,” he said. ”We’ll have to see how it works.”

Greenwalt isn’t the only one who thinks those outside groups should come inside. Frank Kendall, whose tenure of four-plus years as AT&L ended with the Obama administration, believes that for the R&E spot to work, it must include all the research groups scattered around the department.

“It would have basic research, 6.1, 6.2 and 6.3, it would have DARPA, it would have SCO and DIUx, it would have the existing office that does experimentation,” Kendall said in April, adding that he had provided that recommendation to Deputy Secretary of Defense Bob Work.

Andrew Hunter, an analyst with the Center for Strategic and International Studies, noted that the Senate clearly has been leaning toward putting SCO, DIUx and DARPA into the R&E portfolio. But that may be an imperfect fit, he warned.

“DARPA, by mandate, deals with that leap-ahead tech, 6.1, 6.2, 6.3 work, research that is early stage. Once it gets to prototypes, that’s no longer DARPA territory. SCO is on the other end,” Hunter said. “Both have a fit in the R&E position. But it seems the department is heading towards having R&E have more of an early stage focus, so they might come to a different answer.”

Leadership questions

While the future of the R&E office is uncertain, the A&S job appears to be more stable — in part because its leadership seems intact.

Lord, the former Textron executive, has already gone through a confirmation hearing for the AT&L job, during which she reaffirmed she would be sliding over to A&S once the AT&L office goes away in February.

The Senate’s version of this year’s defense authorization bill would require Lord to be reconfirmed for the A&S job, but given how little headwind she faced in her confirmation hearing, the assumption is she would easily be reconfirmed for the new title.

Which brings up the question of who her counterpart would be. It is understandable that no names have been put forth for the job, as the White House and Pentagon have been focused on filling existing roles, plus the R&E job does not exist. But waiting too long to put forth a nominee could have “risk,” Hunter said.

“You might not be able to get the quality person you want because of how it is cast. The earlier you name a person, the more they have a chance to shape the structure of the office,” he added. “However you slice the piece, what used to be one really powerful job is now two jobs, each of which is slightly less powerful — so how appealing are they for someone who wants to put their stamp on the future?”

http://www.defensenews.com/pentagon/2017/07/31/pentagon-to-unveil-new-acquisition-structure-on-aug-1/

 

 

 

Senate Attempt to Reduce Contract Protests Ignores Root Cause

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“WASHINGTON TECHNOLOGY” By Stan Soloway

“There are things that can be done to reduce the negative effects and frequency of protests. And they start with enhanced transparency—before, during and after award.

The current Senate proposal fails to consider protests in the context of the broader procurement regime and its innumerable government-unique requirements.”


“When it comes to federal procurement, the frequency and expectation of protests has had a palpable, costly, and sometimes deleterious effect on the process and those competing in it. Most companies now add an extra six to 12 months to their revenue projections in order to account for possible protests.

There is good reason to believe (including surveys) that “low price/technically acceptable” (LPTA) procurement strategies are, with some frequency, driven by a desire to avoid protests, since protesting such procurements is near impossible.

And, of course, there have been cases where incumbents, having lost a re-competition, submit a protest and, as a result, effectively get a contract extension while the protest is decided.

All of these represent unintended and undesirable impacts of the protest process. As a result, many have believed for some time that significant remedial action is needed. This includes the Senate Armed Services Committee, which, for the second year in a row, has included provisions in the defense authorization bill that would require losing protestors to reimburse the government for the costs of a protest when none of the plaintiff’s allegations are sustained.

The legislation would also require the withholding of all profits from incumbent contractors who lose a recompetition and file a protest. The funds would only then be released if some portion of the protest is sustained. If it is fully rejected, the money would be paid to the company that won the competition over which the protest was filed.

Some, including my friend and former federal procurement administrator Steve Kelman would go even further. He has at times argued we should consider doing away with protests altogether since no such equivalent exists in the commercial sector. Unfortunately, sympathetic as I am to the issues driving these views, we are putting the cart before the horse.

First and foremost, we have to remember that protests exist principally to ensure that the outcome of a procurement is in the best interests of the taxpayer. Hence, when mistakes are made, it is in the government’s, and taxpayer’s, interest to take corrective action.

Second, the federal acquisition regulation makes clear that all bidders on a federal procurement must be treated fairly. To the extent the government fails to follow its own rules or stated procurement strategy, remediation is required. There is no such requirement in the commercial world.

Third, even if a protest is dismissed in its entirety one cannot make the leap to assuming nefarious intent on the part of the protestor. That’s like saying everyone who loses a lawsuit was being frivolous in filing it. Obviously that’s not always the case.

For these reasons, and more, the Senate language is the wrong answer. But that does not mean a problem doesn’t exist and that some meaningful action is not possible. Quite the contrary.

Ironically, the proposed legislation includes a crucial part of the answer. In addition to the provisions cited above, it would also mandate quality, detailed debriefings for all significant procurements.

We learned in the 1990s that good debriefings result in far fewer protests. In fact, the data is clear that many companies use the protest process as a means of discovery; of trying to understand why they lost a given competition. In the years immediately following the added emphasis on debriefings, the number of protests dropped significantly.

As but one good example, the IRS had a policy of sharing in a debriefing all information that might otherwise be released during a formal protest (with appropriate redactions). And they executed numerous, significant procurements without a single protest. To its credit, the Senate committee would require that the IRS’s debriefing policy become the norm.

The bill would also require release of the government’s internal, written source selection criteria, which could and should be done anyway. Taken together, these two important steps toward greater transparency could have a very substantial effect. It should also be noted that the IRS was also particularly good in its pre-award communications to bidders, which undoubtedly also facilitated effective and credible competitions. Yet, such communications remain all too inconsistent.

Assigning motive is always a slippery slope. And much of what we think we know remains based on presumption rather than good data. Thus, it would also be helpful if there were better data on the frequency and nature of incumbent protests. How often are they actually sustained, in whole or in part? Is it possible to measure the frequency with which incumbents file protests focused on issues that, while valid, are so minor they would not result in a changed outcome?

Yes, it could reduce the number of protests. But it might well do so for the wrong reasons and based on the wrong assumptions.”

https://washingtontechnology.com/articles/2017/07/25/insights-soloway-bid-protests.aspx

About the Author:

Stan Soloway

Stan Soloway is a former deputy undersecretary of Defense and former president and chief executive officer of the Professional Services Council. He is now the CEO of Celero Strategies.

Pentagon Product Acquisition Focus Must Be On Requirements Document

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“DEFENSE NEWS” By Gen. John Michael Loh (retired)

“The most important, yet most overlooked product in the defense acquisition system is a succinct operational requirements document.

The Defense Department’s acquisition process is so overloaded with Office of the Secretary of Defense as well as Joint Staff bureaucracy, unqualified personnel, multiple reviews and councils, and duplication of the service’s requirements organizations, the requirement gets lost.”


“The operational requirements document, or ORD, is the foundation of the acquisition process from concept development through system development.That series of processes — the Joint Capabilities Integration and Development System, or JCIDS — in place since 2003, adds little value and never focuses on the ORD as the centerpiece.In fact, the requirements document isn’t called the “requirements document” in JCIDS. As the lengthy JCIDS process proceeds at a snail’s pace, what substitutes for a requirements document goes by various names like “initial capability document,” then, the “capability development document,” then the “capability production document,” without having a clear owner for each. An end-to-end ORD just doesn’t exist in JCIDS.

Instead of the top-down, JCIDS-based requirements process, the requirements process should be bottom-up with single ownership by the service’s major operating commands throughout. Putting together and managing an airtight, bulletproof ORD should be the first priority and main focus of activity during concept development leading to milestone one. After milestone one, the ORD should stay in the forefront of every decision and remain unchanged. That is the way the system worked before JCIDS.

We need to learn from the past and get back to basics in the acquisition system starting with the requirements process. From the start of the F-15 and F-16 programs in the early 70s through the F-22 start in the late 80s, concept development began with small, smart teams working together from the operating and developing commands; understanding the need; conducting trade-off analyses to assess risk and cost, in continuous dialogue, producing a requirements document unfettered by top-down micromanagement or wall-to-wall reviews and nitpicking.

The teams were manned by smart operators from the major operating command, who understood the capability needed, and by technical experts from the development command, who understood the state of the art and the risk to go beyond it. They worked in harmony in horizontal dialogue, not having to go through vertical chains of command to communicate with each other, as is the case today. Nor did the Pentagon interfere.

This process worked to produce remarkably well-constructed ORDs in less than a year in most cases. The ORD, approved by the operating and development command, went directly to the service chief and secretary for validation, then to the Joint Requirements Oversight Council, which made sure it included joint service support.

Typically, the work in the Pentagon took less than six months to validate the requirement and put it on the street to industry. The key was the work done by the small teams, freed from bureaucratic tyranny and micromanagement by non-experts.

The ORD served as the main product and basis for the system specification, request for proposals and the source selection process. It kept discipline in the acquisition system throughout all pre-full-scale development milestones.

However, building small, smart teams is essential but difficult. Experience and expertise are prerequisites. Experts in development command teams must know technical and cost risks, and have a working knowledge of operational matters. Experts in the operational command teams must know threats and concepts of operations, and a working knowledge of acquisition matters. But, these experts must be trained and educated for their roles.

Today, particularly in the major operating commands, the officers defining requirements are good operators but not expert in the requirements business. To make matters worse, the responsibility for defining requirements has been subordinated in many operational commands under the plans and programming functions.

Many things need fixing in the defense acquisition system. Reform should start with eliminating JCIDS and returning to what worked — making the ORD the foundational document and driving force in acquisition programs created by small, smart teams from the responsible commands in the services The result will be an acquisition cycle that is years shorter than JCIDS, and systems that meet needed capabilities on cost and schedule.”

https://www.defensenews.com/opinion/2017/07/26/defense-acquisition-focus-on-the-requirement-document-not-the-process-commentary/

About the author: (wikipedia)

“John Michael Loh (born March 14, 1938)[1] is a retired four-star general in the United States Air Force who last served as Commander, Air Combat Command from June 1992 to July 1995. His other four-star assignment include being the 24th Vice Chief of Staff of the Air Force from June 1990 – March 1991, and Commander, Tactical Air Command from March 1991 – June 1992.”

https://en.wikipedia.org/wiki/John_M._Loh

John Loh, official military photo.JPEG

The “Freedom Of Information Act” (FOIA) Turns 51 Years Old

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flag_and_fireworks_575 FOIA Photo biy US Dept. of Transportation

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“THE PROJECT ON GOVERNMENT OVERSIGHT”

“What Is It and Why Does It Matter?”

“Happy birthday to the Freedom of Information Act! Originally enacted in 1966, FOIA created a way for all citizens to obtain information from the federal government.

It requires federal agencies to release any requested information that is not covered by its nine exemptions, and requires agencies to make basic information about their policies available to the public.

The FOIA Improvement Act included some great updates to the landmark access-to-information law, like improved requirements for agencies to proactively post documents online and a new standard of transparency.

But what is FOIA?

Originally enacted in 1966, FOIA created a way for all citizens to obtain information from the federal government. It requires federal agencies to release any requested information that is not covered by its nine exemptions, and requires agencies to make basic information about their policies available to the public. FOIA is a tool commonly used by researchers, historians, journalists, and the public to discover information about possible environmental contamination near their property, the safety of consumer products, and more, and it is being used more than ever before, with almost 800,000 requests submitted in 2016. Many of POGO’s own investigations rely on documents we obtain through FOIA.

While there are still problems with the law that must be addressed and continued threats against it, today is about celebrating and looking back on the impact it has had so far. The Sunshine In Government Initiative launched a Tumblr last year that rounds up news stories that wouldn’t have been possible without the landmark transparency law, and journalists continue to use FOIA every day.”

http://www.pogo.org/blog/2017/07/foia-turns-51-what-is-it-and-why-does-it-matter.html

 

 

 

 

Neutrality Matters

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Net Neutrality CNN dot com

Image:  CNN.com

“WIRED”

“In a time when there are too few companies with too much power – we need net neutrality now more than ever.

Getting rid of Title II would lead to even more centralization, handing more power to the largest Internet companies while stifling competition and innovation.

Next month, Amazon, Netflix, and dozens of other companies and organizations will host a “day of action” aimed at saving net neutrality as we know it. The Federal Communications Commission, meanwhile, is on the verge of revoking its own authority to enforce net neutrality rules, and the country’s biggest telecommunications companies are cheering along. The future of the internet is on the line here, but it’s easy to be cynical about the conflict: What does it matter which set of giant corporations controls the internet?

Under the current net neutrality rules, broadband providers like Comcast and Charter, and wireless providers like AT&T and Verizon, can’t block or slow down your access to lawful content, nor can they create so-called “fast lanes” for content providers who are willing to pay extra. In other words, your internet provider can’t slow your Amazon Prime Video stream to a crawl so you’ll keep your Comcast cable plan, and your mobile carrier can’t stop you from using Microsoft’s Skype instead of your own Verizon cell phone minutes.

If the Trump administration gets its way and abolishes net neutrality, those broadband providers could privilege some content providers over others (for a price, of course). The broadband industry says it supports net neutrality in theory but opposes the FCC’s reclassification of internet providers as utility-like “Title II” providers, and that consumers have nothing to worry about. But it’s hard not to worry given that without Title II classification, the FCC wouldn’t actually be able to enforce its net neutrality rules. It might be less alarming if the internet were a level playing field with free and fair competition. But it’s not. At all.

If you want to search for anything online, you’ve got to go through Google or maybe Microsoft’s Bing. The updates your Facebook friends share are filtered through the company’s algorithms. The mobile apps you can find in your phone’s app store are selected by either Apple or Google. If you’re like most online shoppers, you’re mostly buying products sold by Amazon and its partners. Even with the current net neutrality laws there’s not enough competition—without them, there will be even less, which could stifle the growth and innovation that fuels the digital economy.

Fast lanes or other types of network discrimination could have a big impact on the countless independent websites and apps that already exist, many of which would have to cough up extra money to compete with the bigger competitors to reach audiences. Consider the examples of Netflix, Skype, and YouTube, all of which came of age during the mid-2000s when the FCC’s first net neutrality rules were in place. Had broadband providers been able to block videos streaming and internet-based phone calls in the early days, these companies may have seen their growth blocked by larger companies with deeper pockets. Instead, net neutrality rules allowed them to find their audiences and become the giants they are today, and without net neutrality, they could even potentially become the very start-up-killers that would’ve slowed or stopped their own earlier growth. Getting rid of net neutrality all but ensures that the next generation of internet companies won’t be able to compete with the internet giants.

The end of net neutrality could also have ranging implications for consumers. Amazon, Netflix, YouTube, and a handful of other services may dominate the online video market, but without net neutrality, broadband providers might try to make it more expensive to access popular streaming sites in an attempt to keep customers paying for expensive television packages. “[Net neutrality] protects consumers from having the cost of internet go up because they have to pay for fast lane tolls,” says Chris Lewis, vice president of the advocacy group Public Knowledge.

Lewis also points out that there are a few other consumer friendly protections in the FCC’s net neutrality rules. For example, the FCC rules require internet service providers to disclose information about the speed of their services, helping you find out whether you’re getting your money’s worth. They also force broadband providers to allow you to connect any device you like to your internet connection, so that your provider can’t force you to use a specific type of WiFi router, or tell you which Internet of Things gadgets you can or can’t use.

“The Internet is as awesome and diverse as it is thanks to the basic guiding principle of net neutrality,” says Evan Greer, campaign director for Fight for the Future, one of the main organizers of the net neutrality day of action, which will take place on July 12 and try to raise awareness about net neutrality across the web.”

https://www.wired.com/story/why-net-neutrality-matters-even-in-the-age-of-oligopoly/

Are You Prepared for a Contract Cancellation?

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“WASHINGTON TECHNOLOGY”  By Darrell Hineman, Brian Courtney

“The possibility of a contract termination should be incorporated into every government contractor’s business continuity plan.

Implementing safeguards and procedures designed to mitigate the risk of a termination will limit the impact it has on your organization’s operations.

Preparing for the possibility of a contract termination is a defensive strategy that contractors should undertake now. Here are three key steps you should consider immediately:

  1. Plan ahead. Never consider your contract as “termination-proof.”
  2. Fully understand the contract termination process
  3. Learn how to calculate and submit your Request for Equitable Adjustment or settlement proposal.

The possibility of a contract termination should be incorporated into every government contractor’s business continuity plan. Implementing safeguards and procedures designed to mitigate the risk of a termination will limit the impact it has on your organization’s operations. Ask yourself, “Does my organization have procedures in place to deal with cure notices, customer complaints, and quality issues? What about monitoring subcontractors?”

If you are still reading this article, you probably are not as well prepared for a contract termination as you should be. Most contract terminations have a root cause and are not solely due to the government no longer requiring the items or services.

Here are some common contract termination causes and how to prevent them:

Failure to immediately address government concerns

Whether a complaint or “suggestion” is received verbally or in writing from the government, there should be a process in place to respond immediately. Often, we hear from clients that their program personnel were in the process of addressing a government issue (but apparently not in real-time). Now, they are dealing with a cure notice for many items to be corrected in two weeks.

Incorporate the handling and response to government communications and complaints/concerns into your program management policy and procedures. All complaints/concerns should be documented and tracked from the initial problem to the eventual solutions.

Regular communication with the government is also critical in staying ahead of potential contract issues and preventing a termination. The contractor program manager should routinely relay project status to the government in writing – even if not required under the contract terms. We recommend weekly communications but, depending on the project, monthly communications may suffice.

Failure to evaluate change orders for potential effect on cost or schedule

Sometimes, trying to fully please the client can actually lead to a termination. A contractor has only 30 days from the date of receipt of a written order to assert its right to an adjustment. Often, accepting changes without evaluating the impact on scope, cost, and/or schedule can lead to project delays and cost overruns. These may ultimately result in missed delivery/performance dates.

As a preventative measure, create a standard procedure to evaluate the impact of any change request on the scope, cost, and/or schedule of a project. Share this required procedure with the customer: “Yes, we can make changes, but we first need to evaluate the scope, cost, and schedule to identify any project impacts.”

Subcontractor performance issues

Many contractors focus on complying with the requirement to issue subcontracts and neglect their associated responsibility for managing subcontractors under FAR 42.202(e)(2), Assignment of Contract Administration. Prime contractors often assume, without oversight or verification, that their subcontractors will meet prescribed performance and deliverable requirements.

When a subcontractor fails to deliver, the prime contractor is ultimately responsible for addressing the issue, or may face termination. Therefore, you should ensure that you flow down the proper terms and conditions to your subcontractors, including the prime contract termination clauses and deliverable dates.

Another step we recommend is to create a post-award subcontract administration procedure to address the risk. Ensure that adequate and comprehensive subcontractor oversight is built in to your procurement and project management processes. Any issue that can affect contract performance/delivery must be escalated quickly for resolution.

Bidding on unprofitable work

Today, when lowest price, technically acceptable typically beats out best value (though recent legislation directs more limited use of LPTA procurements), contractors often estimate their cost to fit the price they want to bid and what they think the government is willing to pay. Instead, you should be focusing on the actual cost required to address the government’s mission-stated requirements.

Even though you may know that the “price to win” is too low to perform the work adequately, the proposal development organization might not want to deviate from that winning number.

To avoid bidding on unprofitable work, you should develop a comprehensive estimating manual and system so that your estimated costs are based on real costs/prices currently in the marketplace. As part of this, build and encourage a corporate culture that incentivizes employees for more profitable work as opposed to contract wins exclusively.

As no contract is termination proof, the key is to always be prepared and have a defense strategy in place at all times.”

About the Authors

Darrell Hineman is the director of the government compliance group at the accounting, tax and advisory firm CohnReznick LLP. https://www.cohnreznick.com/industries/government-contracting

Brian Courtney is a senior manager at the accounting, tax and advisory firm CohnReznick LLP. https://www.cohnreznick.com/industries/government-contracting

https://washingtontechnology.com/articles/2017/06/09/insights-contractor-termination.aspx

 

For more information on the types of contract terminations, preparing for them and managing them, please see the article linked below:

http://www.smalltofeds.com/2011/08/federal-government-contract.html

GAO: “Late Means Late for Contract Proposals”

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Image: National Defense Magazine

“NATIONAL DEFENSE MAGAZINE” By By Julia Lippman and Jason Workmaster

“GAO’s opinion should serve as a warning to contractors that a late proposal will not be considered.

Especially with the use of electronic submission processes, a matter of seconds can be the difference between a timely and late proposal.

The Government Accountability Office on Feb. 27 reiterated its long standing rule that, when it comes to proposal submissions, “late” means “late.”

GAO addressed a protest filed by Tele-Consultants Inc. in connection with a request for proposals issued by Naval Sea Systems Command. TCI’s protest argued that its proposal was improperly rejected by the agency for being submitted after the deadline.

Under the request for proposals, the Navy sought support services for the Naval Undersea Warfare Center through the issuance of a task order to a small business holder of the SeaPort-e multiple award indefinite-delivery/indefinite-quantity contract. The solicitation was issued Sept. 28, 2016 and proposals were to be submitted electronically through the SeaPort-e portal by Nov. 8 at 2:00 p.m. eastern time. The solicitation required compliance with the proposal submission instructions outlined in the SeaPort-e multiple award contract and the SeaPort Vendor Portal User Guide.

In using the portal, contractors were required to designate an “authorized user” who could confirm the intent to engage in a legally binding action, such as submitting a proposal. When a contractor was ready to submit its proposal, its authorized user was required to use the “submit signed proposal” button. The portal would then generate a confirmation prompt that would require the user to confirm his or her intent to electronically sign and submit the proposal.

The portal was set up so that contractors could store their proposals on the contractor side of the portal prior to submitting their proposal.

The agency received three proposals by the deadline. TCI’s proposal was not among them. Rather, TCI’s proposal remained in its draft form on the contractor side of the portal because it had not engaged the submit button.

Based on a review of the server logs, the agency determined that TCI’s representatives had unsuccessfully tried to engage the button 23 and 34 seconds after the proposal deadline. TCI reached out to the contracting officer by phone and email stating that the proposal button had not allowed it to submit its proposal but that “TCI’s proposal was timely submitted and it was intended to be binding on TCI.”

TCI received an email that evening from the SeaPort-e portal that noted that, “[a]n event for which you created a draft proposal has closed without you completing the final submission process. As a result, the draft will not be considered.” There was no indication that the portal had experienced any technical malfunction that would have prevented TCI from timely submitting its proposal.

TCI argued that its proposal should not have been rejected because, even though it did not receive notice that its proposal was timely submitted, its proposal was, in fact, submitted on time. Additionally, TCI argued that, even if its proposal was late, it was in the government’s control and was, thus, subject to the exception set forth in FAR 15.208. Under FAR 15.208, proposals that are submitted after the deadline are late unless, among other exceptions, there is evidence that the proposal “was received at the government installation designated for receipt of proposals and was under the government’s control prior to the time set for receipt of proposals[.]”

TCI argued that the archival lock on proposal files was acceptable evidence to establish that its proposal was received at the government installation designated for receipt of proposals and was under the government’s control prior to the time set for receipt of proposals.

The agency responded that TCI’s failure to engage the button meant that TCI had failed to submit its proposal either on time or after the deadline. The agency explained that proposals were not added to the government side of the portal until the submit button was selected. Thus, TCI’s proposal was never received by the government or under the government’s control. The agency also proffered that it could not know if TCI meant to be legally bound by its proposal in light of its failure to engage the button.

Although noting that it was not clear that FAR 15.208 even applied to this FAR Part 16 procurement, GAO nevertheless agreed with the agency and found that TCI failed to submit its proposal. GAO reiterated the well-established rule that an offeror is responsible for delivering its proposal to the designated place by the designated time and that an agency is not required to consider a proposal when there is no evidence that it was “actually received” by the agency.

GAO found that there was no evidence that TCI had actually submitted its proposal to the agency as the electronic submission of a legally binding offer was not completed. TCI did not dispute that it tried to use the submit button after the 2:00 p.m. EST deadline. And TCI never engaged the button even though it tried to do so. TCI’s failure to engage the button meant that it had never submitted a legally binding proposal. GAO concluded that it had “no basis to challenge the agency’s decision that it had not received, and could not consider, TCI’s draft proposal.”

Contractors should take extra care when submitting a proposal electronically to ensure that all proper submittal steps for the submission of a legally binding proposal have been completed well before a proposal deadline.

Additionally, a proposal stored on a government portal may not be sufficient to establish it was in the government’s control.”

Jason N. Workmaster is of counsel and Julia Lippman is an associate in the government contracts practice at Covington & Burling LLP.

http://www.nationaldefensemagazine.org/articles/2017/6/15/late-means-late-for-contract-proposals

 

 

Tight Government Agency Budgets Bring a Silver Lining

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Risk vs. Opportunitiy - alumni.bm.ust.hk

Image:  http://alumni.bm.ust.hk

“WASHINGTON TECHNOLOGY” By Stan Soloway

“Growing funding pressures and uncertainty place a growing onus on agencies to navigate the turbulence in new and innovative ways.

Thus, far from being a market killer, it actually presents opportunity.

For years, the question of when the government might return to “regular order” –that is, a “normal” process in which appropriations are essentially completed by the end of September—has been a prominent one.

Agency leaders, industry, and others, have continually and appropriately harped on the deleterious impacts of the funding yo-yo that has dominated the scene for far too long.
And if there was one thing many hoped for as a result of having one party in control of both the White House and Congress, it was a return to regular order.

Well, it’s probably not going to happen. As virtually all recent reports have indicated, the budget debate within the parties, let alone between the parties, remains fierce and the chances of getting a full year fiscal 2018 funding bill by Sept. 30th are slim indeed.

President Trump’s budget blueprint – the “skinny budget” — generated plenty of debate; the release of his full proposed budget will only turn up the heat further. No  budget resolutions have yet been proposed, let alone passed, and no spending instructions given to the appropriations committees.

Beyond that, consider what else Congress has to deal with over the next four months: the farm insurance bill; the children’s insurance program (CHIP); health care; possibly tax reform; and, of course, the debt ceiling. In other words, while a complex and many-layered debate is virtually certain, it has not yet really begun and one or more continuing resolutions appear almost certain.

To complicate matters further, the Senate cannot even take up the budget until after it finishes with health care, because as soon as a budget bill is passed the rules change previously instituted by the Democrats (requiring only a majority vote) will revert back to the standard rule under which 60 votes will be needed.

Thus, the betting is that another continuing resolution, or a series of them, will be needed.

And that is never a good thing for smart planning and program execution.

Nonetheless, it would appear that over the years most agencies have actually gotten pretty good at adjusting to the external dynamics and finding a way to do their jobs. Even as agencies struggled with the White House’s early budget instructions, most continued to operate relatively normally. And that has mostly carried over to the market as well.

Unlike what we saw with sequestration—the impacts of which were seen and felt months before it went into effect—the impacts of the potential or expected spending reductions are not reflected in a broad market slow-down. In fact, with the exception of State and EPA,  just the opposite seems to be happening.

Through the first two quarters of fiscal 2017, civilian agency spending on professional services and IT both grew by double digits over the same period last year. At the Defense Department, for which we only have data for the first quarter, the pattern was the same (16 percent for professional services; 10 percent for IT).

And while it may seem counter-intuitive, this is actually consistent with what we’ve seen in recent years. Often, those agencies under the toughest budgetary pressures have also been those in which the market has performed best.

Again, this is in part the result of agencies having learned to operate amidst the chaos. But more importantly, it appears to validate another key market dynamic: as agencies are forced to be more and more selective with their funding, their highest priority missions, and thus those most fully funded, tend to be highly tech-centric (cyber, analytics, automation, etc.).

Almost by definition, those missions require more private sector support than other, more routine operations. Thus, market growth in a constrained environment is not only possible, it is likely.

Going forward, aside from major reductions in mission or service, agencies’ best hopes and strategies for dealing with the budget realities largely lie in aggressively expanding the degree to which they capitalize on opportunities to substantially reduce costs (and improve service) across the board, driven by the emergence of the digital economy.

It’s happening across the commercial sector; and this budget could well catalyze a similar transition in government.

This is not to say that predictability and stability should not still be a goal. It absolutely should be. Nor is it to suggest that some budget cuts won’t have very real negative impacts on segments of industry. They will.

But as the data and other trends suggest, stability may not be the holy grail it once appeared to be. ”

https://washingtontechnology.com/articles/2017/05/22/insights-soloway-budget-silverlining.aspx

About the Author

Stan Soloway

Stan Soloway is a former deputy undersecretary of Defense and former president and chief executive officer of the Professional Services Council. He is now the CEO of Celero Strategies.

First-ever Audit At The Department of Defense

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First Ever Audit at the Pentagon

“DEFENSE ONE”

“The Department of Defense is preparing for its first-ever audit.

The nation’s most sprawling and expensive bureaucracy and the world’s largest employer—has yet to undergo a formal, legally mandated review of its finances.

[It] has become a preoccupation for members of Congress intent on demonstrating their fiscal prudence even as they appropriate more than $600 billion annually to the Pentagon.

“Like Waiting for Godot,” one Democratic senator, Jack Reed of Rhode Island, quipped about the absent audit at a recent hearing. The lack of formal accountability has left unanswered basic questions about how the military spends taxpayer money, like the precise number of employees and contractors its various branches have hired. Cost overruns have become legendary, none more so than the F-35 fighter-jet program that has drawn the ire of President Trump. And partial reports suggest that the department has misspent or not accounted for anywhere from hundreds of billions to several trillion dollars.

After years of missed deadlines, the mounting political pressure and a renewed commitment from the Trump administration might finally result in an audit. For the first time last year, both major political parties called for auditing the Pentagon in their campaign platforms. That unites everyone from Hillary Clinton and Elizabeth Warren to Ted Cruz and the House Freedom Caucus. And last week, Trump’s nominee to serve as comptroller for the Pentagon, David Norquist, testified at his Senate confirmation hearing that he would insist on one whether the department could pass it or not. “It is time to audit the Pentagon,” Norquist told members of the Senate Armed Services Committee in his opening statement.

As comptroller for the Homeland Security Department a decade ago, Norquist, the brother of the anti-tax advocate Grover Norquist, undertook the first successful audits of that much younger federal agency. The Defense Department is unlikely to meet a statutory deadline to be “audit-ready” by the end of September. But Norquist said he would begin the process even if the Pentagon’s financial statements were not fully in order, and he committed to having the report completed by March 2019.

What has prevented the Pentagon from being examined this way before? The answer lies somewhere “between lethargy and complexity,” said Gordon Adams, a distinguished fellow at the Stimson Center who was the top budget official for national security in the Clinton White House. “It hasn’t been done ever,” he told me, “partly because it’s incredibly complicated to do and also because there’s not a great, powerful will in the building to do it.”

The complexity of the project dates back to the Civil War, Adams said, when the Army and the Navy set up their own separate accounting systems. The Air Force also went its own way after its creation following World War II, and the military build-ups of the last four decades scrambled the department’s financial records many times over. The explosion of military contractors since 9/11 has made scrubbing the books harder still. Adams estimated that an audit would have to account for 15 million to 20 million contracting transactions each year. The Pentagon has spent several billion dollars over the last seven years just trying to consolidate its accounting systems in preparation for a potential audit.

Despite the ramp-up costs, the project has never risen to be a top priority; the Pentagon has simply been too busy fighting wars. “The military has repeatedly argued that they need to focus on the war effort and accountability can come later,” said Kori Schake, a fellow at the Hoover Institution who previously served in a variety of national-security positions in the government. That excuse carried more weight with lawmakers in the years when the United States had hundreds of thousands of troops fighting in Iraq and Afghanistan.

Now, top Republicans like Senator John McCain of Arizona, chairman of the Armed Services Committee, are pressing for an audit with more urgency. “This has been a very public continuing failure for the Department of Defense, in large part due to the failure of senior management to make this a priority for the department and invest the necessary time and will to get it done,” McCain said at the outset of Norquist’s hearing. “This must end with you,” he told the president’s nominee.

Yet those fiscal hawks hoping that the long-awaited report will spur substantial reforms to defense spending are just as likely to be disappointed. An audit by itself won’t dismantle the “military industrial complex” that former President Dwight Eisenhower famously warned about, nor will it lead members of Congress to stop fighting to protect the bases and weapons systems that are manufactured in their districts—and the jobs that come with them. Several times in recent years, it has been congressional lobbying that has kept up production of weapons and equipment that the military no longer considers necessary.

“An audit does not raise the big issues,” Adams said. “It doesn’t tell you that we’re not getting the right bang for the buck. It doesn’t tell you anything about whether we’re getting the right forces for the threat. It doesn’t tell you how well the forces perform. It doesn’t tell you where we are wasting capability that we don’t need.”

“What it allows a member of Congress to do,” he continued, “is to look tough on defense and spend a lot on defense at the same time.”

Spending a lot on defense is what the Trump administration wants to do, even as it pledges its support for a Pentagon audit. The White House has asked Congress for a $54 billion increase in the military budget over the next year and secured about $15 billion of that in the recent spending deal. “It’s harder when there’s a big inflow of cash to focus on something like the audit,” said William Hartung, director of the arms and security project at the Center for International Policy. “There’s still that incentive to just push the money out the door.”

There’s some hope among audit advocates that the administration’s demand for more money will give congressional spending hawks leverage to insist on progress toward the accounting milestone in exchange for a budget increase. But they also don’t believe leverage should be necessary to demand that a department with a workforce pegged at more than 3 million people commit, at long last, to some basic bookkeeping. “We would never accept the argument that the Department of Education is too big and too complicated to be accountable,” Schake argued. “Why do we accept that for Defense?”

http://www.defenseone.com/politics/2017/05/white-house-vows-audit-pentagon-which-would-be-first/137928/?oref=d-channeltop

 

Navigating Defense Department Cyber Rules

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Cyber Rules

“NATIONAL DEFENSE MAGAZINE”

“Defense contractors by Dec. 31 are expected to provide “adequate security” to protect “covered defense information” using cyber safeguards.

Thousands of companies who sell directly to the Defense Department, and thousands more who sell to its suppliers, are or will be, subject to the rule.

This obligation arises from a Defense Acquisition Regulation System Supplement clause, “Network Penetration Reporting and Contracting For Cloud Services,” that was finalized last October and described in the National Institute of Standards and Technology (NIST) Special Publication 800-171.

The Pentagon is well-justified to seek improved cyber protection of sensitive but unclassified technical information. Hackers have exploited network vulnerabilities in the defense supply chain for the unauthorized exfiltration of valuable and sensitive defense information. Senior defense officials have expressed alarm at this persistent and pervasive economic espionage. 

Since 2013, the Defense Department has used acquisition regulations to protect controlled technical information significant to military or space. Other forms of information may not have direct military or space significance, but loss of confidentiality through a cyber breach can produce serious, even grave national injury. 

The Defense Department is the leader among federal agencies in using its contractual power to cause its vendors to improve their cybersecurity. The principal instruments are two contract clauses, DFARS 252.204-7008, “Compliance with Safeguarding Covered Defense Information Controls,” and DFARS 252.204-7012, “Safeguarding Covered Defense Information and Cyber Incident Reporting.” Both were the subject of final rulemaking released Oct. 21.

Where the -7008 “compliance” clause is included in a solicitation, the offeror commits to implement the SP 800-171 safeguards by the end of this year. Defense Department contracts will include the -7012 “safeguards” clause, which defines the types of information that must be protected, informs contractors of their obligation to deliver “adequate security” using SP 800-171 controls, and obligates reporting to the department of cyber incidents.  

Every responsible defense supplier supports the objectives of these cyber DFARS rules. But the requirements are complex and are not currently well-understood. Outside of a few of the largest, dedicated military suppliers, many companies in the defense supply chain view these rules with a mix of doubt, concern and alarm. This recipe serves neither the interests of the Defense Department nor its industrial base.

A technology trade association, the IT Alliance for Public Sector, released a white paper that examines the Defense Acquisition Regulation System Supplement and other federal initiatives to protect controlled unclassified information. The goal was to assist both government and industry to find effective, practical and affordable means to implement the new cyber requirements. The paper examines these five areas: designation, scope, methods, adoption and compliance.

As for designation, the department should accept that it is responsible to identify and designate the covered defense information that contractors are obliged to protect. It should confirm that contractors only have to protect information that it has designated as covered, and that such obligations are only prospective — newly received information — and not retrospective.

In regards to “scope,” the Defense Department should revise the rule to clarify that contractors must protect information that it has identified as covered and provided to the contractor in the course of performance of a contract that is subject to the rule. The definition of “covered defense information” should be revised to remove confusing language that can be interpreted to require protection of “background” business information and other data that has only a remote nexus to a Defense Department contract.

The October 2016 revision now allows defense contractors to use external cloud service providers, where covered information is involved, only if those vendors meet the security requirements of FedRAMP Moderate “or equivalent.” The Federal Risk and Authorization Management Program, or FedRAMP, is a government-wide program that provides a standardized approach to security assessment, authorization and continuous monitoring for cloud products and services.

The regulation fails to explain what is meant by “or equivalent” and who decides. The Defense Department needs to explain what it expects from cloud services to satisfy SP 800-171 and the DFARS rules. A security overlay should be prepared by NIST to add cloud-specific controls. But it is unnecessary to impose the whole of the FedRAMP process and federal-specific controls on commercial cloud providers.

The Defense Department continues to depend on small business for many needs, and seeks their innovative ideas. The supplements are an obstacle and burden on smaller businesses, and yet security is just as important at the lower levels of the supply chain as at the top. The department can improve the ability of small business to implement the required security controls. Several specific recommendations are made as to how it can reach and assist the small business community. One recommendation is to make increased use of the NIST voluntary cybersecurity framework.

As far as compliance, contractors are required to represent that they will deliver “adequate security” and fully implement the SP 800-171 controls by the year-end deadline. The Defense Department needs to better inform its contractors how they can be confident their security measures will satisfy the requirements should they come under scrutiny following a cyber incident. The white paper explores different ways to create a safe harbor for compliance. A key component is contractor documentation of a system security plan, which was added as a 110th requirement to SP 800-171.        

The White Paper is available here. The Defense Department is hosting an industry day on the cyber DFARS, June 23 at the Mark Center in Alexandria, Virginia. Information and registration details available here. ”     

http://www.nationaldefensemagazine.org/articles/2017/4/21/navigating-defense-department-cyber-rules