“Low-risk/high volume items” will be
exempt from Section 889B requirements for two more years thanks to a waiver
granted by DOD earlier this month. This is the same waiver that had been in
place until September 30th.
While there is no precise definition of what constitutes a “low
risk/high volume item” potential examples include a camera used as part
of a security system on a building not involved in any government
business. Conversely, any covered
equipment that captures and stores data or images may not be considered low
risk, especially if the device(s) are used to store government information or
on a site a contractor uses to support government business. Section 889B
definitely still applies to any area not exempt. Industry and DOD leaders had both wanted to
the waiver extended to give companies time to identify the types of IT and
telecommunications equipment that have to be removed. The identification process, itself, could
take months, meaning that no company would have been able to certify that they
had conducted the “reasonable inquiry” required by the regulation implementing
the statute, let alone removed any identified equipment. The publication of this waiver has not been
well publicized. Contractors should ensure that they have the proper information
to show any DOD customer that is unaware of it. While some had hoped that Congress would
lessen the impact of the requirement in the FY’21 defense authorization bill,
there is currently no such provision expected to be in the final version. It is unclear whether there may be a
realistic opportunity to modify the applicability of the law in the FY’22 bill,
though it is important to note that no observers expect the provision to
be overturned or seriously modified even if it is addressed.
A provision in the House version of the FY’21 National Defense
Authorization Act (NDAA) requiring GAO to conduct a study on whether
cybersecurity insurance should be mandated for government contractors has industry
groups concerned. The fear is that the report,
coupled with recommendations by the influential Cyberspace Solarium Commission,
will result in companies having to buy potentially costly cybersecurity
insurance or risk losing government business. Supporters believe that cybersecurity
insurance could perform the same role of government regulations in improving
organizations’ cybersecurity practices.
Instead of a regulation, companies that did not take out such insurance
would be at risk of being at a competitive disadvantage when being evaluated
for a contract award or excluded from procurements all together. Opponents believe that having
insurance, itself, will do little to advance real cybersecurity and, in fact,
may drain company resources away from investing in actual improvements to pay
for the insurance. Others see it
as a give-away to the insurance industry.
This is not, however, the first-time contractors have had consider
government-only insurance requirements.
Unlimited liability requirements, especially at the state level, were a
true fad in the late 1990’s as public sector officials worried about unproven
technology impacting their missions.
Whether the push cybersecurity insurance will largely fade away as that
issue did remains uncertain. What is
certain is that there is a true sense of urgency on the part of
legislative and executive branch officials to try and ensure iron-clad security. It is unfortunate that they don’t hold
government agencies to the same standard, as anyone involved with Fairfax
County Public Schools will note with irony.
Regardless of who wins the election held two weeks from tomorrow,
contractors can expect to see only minimal disruption as the deck of appointees
and other senior officials inevitably shuffles. The business of government will still move
forward, though companies may see larger, new projects delayed not only due to
the operation of government under a Continuing Resolution (CR), but the impact
of many “acting” people in temporary jobs.
Acting officials tend to be more risk averse than permanent
appointees. Conversely, work on
almost all existing projects will likely continue without a change,
unless there is a special political angle that may garner unique oversight. New people, again regardless of party,
will bring in their own ideas.
Similarly, priorities do tend to change every four years. It wasn’t until well into the second term of
President Obama, for example, that Category Management was launched. This may have an impact on future work, as
priorities and people change. As
quickly as contractors might want that to become clear, however, it is
important to note that acquisition-related positions tend to be lower
priorities than others when new jobs are being handed out. There will be considerable guidance and
information about how and whether government spending priorities will change
for FY’22 and beyond coming soon.
Is your federal forecast cloudy? Do you know what RPA is and how it will
impact your GSA contracts? When, also,
will we ever get final appropriations?
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“Polaris” is the name GSA has chosen for its new small business GWAC. Whether your business is large or small, what happens with Polaris could impact your government business. Here are some key points beyond the basics:
1. Timing is Key: GSA says that they are working toward a draft RFP “within the next few months”. Not good enough. We’ve written before that “Across Five Aprils” is a great title for a Civil War book, but it is no longer acceptable for GWAC formation. The agency wants to be innovative. That should spur faster timelines, especially so if they elect to forego contract-level pricing. We challenged the agency to aim for April 30, 2021 awards recently and we’re sticking to thattimeline. A fast GWAC with innovative small businesses would grab everyone’s attention.
2. The Possibility of a Non-Priced Contract: Agency officials have publicly stated that they are considering doing away with contract-level pricing per “Section 876” authority given to the agency several years ago by Congress. Notably, GSA says this approach would be “most ambitious”, but, coupling it with a pilot for the Schedules program, would give the agency a broader sample of contracts to determine how this authority drives contract use and customer satisfaction.
3. Expanding the Industrial Base: The GSA announcement is full of references to reaching out to companies not now doing government business. The agency wants the latest technology and will offer frequent on-ramps to keep competition and innovation high.
4. Using Internal Technology to Drive Contract Management: GSA is serious about using technology to streamline their internal contract management procedures. This topic is frequently discussed in reference to GSA Schedule contracts, but is also a priority for FAS Commissioner Julie Dunne. What happens here could impact how other GSA contracts are managed. Pay attention.