GSA is moving quickly to insert supply chain risk management (SCRM)
language into both existing and new contracts. While contractors can initially self-certify
that they meet some requirements, others, like CMMC compliance, will have to be
verified by third parties (though check back in a few months to see if the CMMC
train wreck has cleared the tracks). The
bottom line for contractors is that SCRM is becoming another compliance factor
that must be taken seriously.
GSA officials have stated clearly that they will monitor and follow up
with companies to ensure that their systems meet contractual SCRM
requirements. Section 889 compliance is
another part of SCRM compliance, as will be a new set of requirements now being
devised by part of the Federal Acquisition Security Council. The council will refine exactly what those
requirements are over the next several months before working with GSA to
identify the major contracts that meet federal SCRM business needs. Those contracts will include 8(a) STARS III,
a signal that the agency will not spare small firms from meeting whatever new
IT security requirements the government deems necessary. This is another incremental cost that takes
the government further away from buying commercial items according to
commercial standards. It is
unclear whether any consideration has been given in GSA or elsewhere to the
ability of existing or developing commercial market IT security standards to
meet the government’s needs as an alternative to the creation of government
unique standards. For now, contractors
should prepare to ramp up their SCRM programs as well as prepare for
audits and possible whistle-blower cases.
Federal agencies have
wide latitude in evaluating contractor past performance,
so long as they use consistent methods that follow regulatory boundaries and
their own stated RFP/Q evaluation factors.
Negative past performance is obviously something that every contractor
strives to avoid. Even “just ok”
past performance, though, can be enough for your company to lose a bid. A recent GAO decision, Sterling Medical
Associates, Inc., shows that one company found this out the hard way. Even though Sterling had been evaluated as
having “Satisfactory Confidence”, it lost out to a company rated as having
“Substantial Confidence”. Sterling
protested that the agency’s review included a wide spectrum of CPAR’s
evaluations, not only those of projects similar to this one. GAO denied the protest, however,
stating “The scope of past performance information to consider is a matter
within the agency’s discretion, and the fact that the agency could have, but
did not elect to, further focus its review to only those efforts the protester
views as most similar does not render the evaluation unreasonable or
inconsistent with the solicitation.”
This decision shows that companies need to not only ensure proper
fulfillment on government projects, but that they should maintain written
statements with their explanations of less-than-perfect CPAR’s
evaluations. While you may not
always get a chance to tell your side of the story, you should always be
prepared to do so. This is
especially true on the government’s FAPIIS reporting system. Companies can respond to negative CPAR’s or
other unfavorable posting, but only within a limited time frame. If you haven’t checked the FAPIIS
report (https://www.fapiis.gov/fapiis/index.action)
on your company lately, you should and make it a regular practice, as well. In the meantime, remember that in government
contracting, the past can definitely be prologue.
A new FAR case has been opened that impacts companies that have products
comprised of 95% steel or iron, including companies that supply Commercial Off
the Shelf (COTS) items. The case
sets new standards for the domestic content of such items. If your company sells certain types of office
furniture, temporary shelters, or related solutions you should be aware of how
these changes could impact your business.
Check out the FAR case here: https://beta.regulations.gov/document/FAR-2019-0016-0001 and be prepared to
comment by mid-November. Allen
Federal is happy to discuss the implications further with your company.
With the end of the
Fiscal year only nine short days away it’s time to plan your organization’s
annual government contract training.
Whether its GSA Schedule compliance, ethics rules, or BAA/TAA compliance
Allen Federal can develop a class tailored to your needs that’s both
information and fun. Contact us today at
info@allenfederal.com and get your training scheduled NOW!
While there is an agreement in concept to pass a
Continuing Resolution (CR) to start off the 2021 Fiscal Year, there is,
as yet, no agreement on the length, nor on whether another pandemic-related
stimulus bill will pass along with it.
Many Republicans are seeking a CR that keeps the government open into
sometime in mid-December. This is
consistent with conventional thinking that final FY’21 appropriations could be
finalized by Christmas. Democrats,
though, may want a shorter bill as it will provide additional opportunities to
point up differences on policy matters between the two parties. There is also no agreement on whether a new
pandemic relief bill will pass, or, if it does, how large it could be. An attempt last week to pass a comparatively
smaller measure, less than the $2 billion some elected officials have called
for, failed in the Senate. This
can all be a distraction for contractors. We’ve said before that a new relief
measure would likely be a net negative for contractors as it would impact
out-year spending and create a larger future bill that would drag down many
sectors of the economy, including government contracting. The good news is that no political leader is
discussing a shut-down. It is
highly probable that a CR will be passed that will fund the government at least
through the November election, if not longer. That provides some level of stability for
business. The outlook for a relief bill
is much more problematic. It may well be
that each party would rather have the issue to use on the campaign trail and
not an actual bill. Regardless, companies
should not get distracted over pandemic-relief “what if’s”, especially at year
end. We will keep you posted on
changes that demand your attention.