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  1. The National Institutes of Health (NIH) NITAAC has been busy over the past month with three amendments to the CIO-SP4. Amendments 12, 13, and 14 primarily revise submission dates and make changes to the reporting of past experience examples. Below is a summary of the pertinent details from these amendments, as we know this is an important procurement for many contractors.

    Amendment 12, released December 16, 2021, requests proposal revisions from offerors who provided proposals by August 27, 2021. Proposals may be revised to reflect the changes in sections L.5.2.1 through L.5.2.4. However, no new proposals are being accepted. Amendment 12 limits the number of experience examples required by both the mentor and protégé in a mentor protégé agreement. Mentors may submit two experience examples of leading edge technology, two examples of federal multiple award experience, and two examples of Executive Order 13779 work. Protégés are only required to submit one experience example from one of the following categories: corporate experience, leading edge technology, federal multiple award, or Executive Order 13779 work. Executive Order 13779 work includes Information Technology projects that directly supported Historically Black Colleges and Universities (HBCUs). The Amendment stated proposal revisions were due January 21, 2022, but do not despair if this applies to you and you have not submitted revisions by January 21. Amendment 14 addresses the proposal date and pushes it back.

    We wrote about why NITAAC made this change in response to a protest decision in our post here.

    Amendment 13, released January 12, 2022, requires all offerors, regardless of whether they made revisions to their proposals per Amendment 12, to resubmit their proposals by January 21, 2022. Again, new proposals are not being accepted. Offerors must have previously submitted their initial proposal by August 27, 2021, to be eligible. The self-scoring sheet previously found in attachment J.5 has been removed and information on iNsight, the new method of calculating Self Scores, has been added. Further, the format of submissions has been updated, with notable changes requiring all documents to be in a searchable format and each individual file limited to 20MB.

    Amendment 14, released January 14, 2022, pushes the re-submission date back a week to January 28, 2022, updates the file naming conventions, and updates and clarifies requirements of submitting a J.6 for each experience example submitted. If an experience example is submitted due to changes imposed by Amendment 12, a new and executed Self-Scoring Sheet Experience Template J.6 is also required. Experience examples that were originally submitted and are not changing do not require new J.6 forms. All J.6 forms submitted by entities that advance to phase 2 of the selection process will require, within one week of advancing, the signature of the “contracting officer or private sector equivalent responsible for contractually binding their organization” or a Federal Procurement Data System (FPDS) record of the contract action.

    Overall, these changes are fairly minor. But as contractors know, if they don’t pay close attention to the changes in formatting, how proposals are submitted, and other changes, it could cost them an award.

    Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919.  

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    The post CIO-SP4 Amendments 12, 13, 14 Update Submission Date and Experience Reporting Method first appeared on SmallGovCon - Government Contracts Law Blog.

    View the full article

  2. The U.S. Supreme Court slammed the brakes Thursday on a Biden administration vaccine-or-testing rule for private businesses with at least 100 employees, but let a stricter yet narrower rule aimed at the health care industry take effect nationwide.

    Today the Supreme Court of the United States struck down the “OSHA Vax or Test” rule imposed on most employers with over 100 employees stating, “[Congress authorized OSHA] to set workplace safety standards, not broad public health measures.” However, in a separate decision the Court upheld the vaccine mandate for workers at federally funded health care facilities. The Court reasoned “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’” This authorization permits the strict rules put into place for the covered health care facilities.

    While the two decisions may appear at odds, a common thread can be found. Congress holds the power to authorize the Executive, and its agencies, to create vaccine mandates or related testing requirements. However, Congress must be clear when delegating these powers and for what purpose. Both decisions can be found below, in full.

    https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf
    https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf

    The remaining federal, vaccine mandate is the one applicable to government contractors. That mandate was subject to a nationwide injunction; and, last month, the 11th Circuit Court of Appeals rejected an effort by the U.S. Government to overturn that injunction. Briefing on the merits of the government contractor mandate is not set to be concluded until late February, and oral argument before the 11th Circuit will not be held until early April. With the Supreme Court’s recent rulings, the viability of the government contractor mandate is certainly in question. That said, given the innumerable regulatory requirements already placed on government contractors, the contractor mandate arguably appears more akin to the CMS mandate than the OSHA mandate. Time, and the 11th Circuit, and probably the Supreme Court, will tell.

    Decision Review provided by David Warner, Parter & Tyler Freiberger, Associate Attorney

    The post Breaking Mandate Decisions appeared first on Centre Law & Consulting.

    View the full article

  3. Dear Federal Partners,

    Information technology manufacturers and suppliers across the country are struggling with significant supply chain disruptions that are impacting their ability to meet customer and market demands. The supply-chain bottlenecks -- around the world -- have caused record shortages of many products that American consumers are used to having readily available, such as household goods, electronics and, most importantly to NITAAC, information technology (IT).

    As one of the biggest purchasers of IT, the federal government is not immune to these challenges.  According to Bloomberg, for Fiscal Year 2022 the federal government has allocated $109.4 billion for unclassified and classified information technology. The budget includes $58.4 billion for civilian agencies and $38.6 billion for unclassified defense agencies. To date, supply chain disruptions have resulted in significant delays in fulfilling federal IT task orders across all government contracting vehicles.

    Although we don’t have the answer to the supply chain challenges, NITAAC wants our federal partners to know we are actively working to find ways to make fulfilling IT task orders on our Government-Wide Acquisition Contracts (GWACs) as easy as possible.  In December, we convened a special listening session with our contract holders. The purpose of the session was to hear firsthand the supply-chain challenges our contract holders were experiencing.  Our intent is to develop a roadmap that will allow us to better understand roadblocks, set timelines, and manage expectations with our agency partners.  Ultimately, we aim to be able to tell our agency partners how long an order will take so a fulfillment timeline can be addressed in their acquisition planning.  Additionally, if supply chain disruptions persist, we are committed to meeting with our contract holders on a consistent basis to receive updates and other pertinent information that we will then use to inform our conversations. 

    According to a recent article from Forbes, there is “no end in sight for the COVID-led global supply chain disruption.” The article cited several factors that will require resolution, such as the high cost of shipping containers, lack of truck drivers and warehouse capacity issues. As our federal partners continue to navigate these challenges, NITAAC is here for you. 

    We understand the important role information technology plays in the federal government and are committed to understanding the bottlenecks resulting from the current supply chain challenges.  We are resolved to coming up with practical solutions to help you procure the IT products and services you need. 

    I have said it before, and it now takes on brand new meaning—customer service is at the heart of what we do at NITAAC. We are fully invested in making sure the lines of communication are open, that we are identifying issues upfront and are ensuring federal agencies can get the IT they need to achieve their agency missions in a reasonable amount of time.  It is our promise to be transparent and to tackle the supply chain issues we are currently facing head on. 

    As we close out 2021, I wish you a healthy holiday season and a wonderful New Year.

  4. At the beginning of Fiscal Year 2008 John Krieger and John Pritchard, two professors at the Defense Systems Management College, Defense Acquisition University, were kicking around the topic of Acquisition Reform. They reflected on what Jim Nagle wrote in the Epilogue to A History of Government Contracting, "If someone were asked to devise a contracting system for the federal government, it is inconceivable that one reasonable person or a committee of reasonable people could come up with our current system.  That system is the result of thousands of decisions made by thousands of individuals, both in and out of government.  It reflects the collision and collaboration of special interests, the impact of innumerable scandals and successes, and the tensions imposed by conflicting ideologies and personalities."

    They reflected that those thousands of decisions were like putting bandages on the acquisition, contracting and procurement processes.  Every time a piece of legislation is passed to “fix” the acquisition process, it’s another bandage.  Every time a change is made to the Federal Acquisition Regulation (FAR), it’s another bandage.  Every time a change is made to the Defense Federal Acquisition Regulation Supplement (DFARS), it’s another bandage.  Every time a procurement or contracting policy memorandum is issued, it’s another bandage. 

    They joked about that being a great visual aid for the classroom. (Remember classrooms, the places you went to learn before COVID-19?) And the joking became reality. They started with a golf ball, and added a bandage for each new law, executive order, regulation, guide handbook, etc. And it would grow, and grow, and grow. “Acquisition Reform and the Golf Ball” was born that day.

    The story of the golf ball was chronicled each fiscal year, and reported in the National Contract Management Association’s Contract Management (CM) after the end of each fiscal year. That is each year up until the report on the results for Fiscal Year 2020, when CM declined the latest installment in the series. Although John and John sought publication elsewhere, there didn’t appear to be a good fit, which brings the latest iteration, “Acquisition Reform and the Golf Ball—A Baker’s Dozen,” to Wifcon.com. (See attachment.)

    Acquisition_Reform_and_the_Golf_Ball_Bakers_Dozen_-FY2021-_Wifcon.com_v2.docx

  5. Quote

    The blast of flame that sent the black, insect-shaped projectile hurtling across the tarmac made me duck instinctively. It was as if the Devil himself were blasting his way straight from Hell.

    Richard Helms, Director of Central Intelligence, 1966 - 1973

    Many years ago, as a teen, I noticed a magazine on a barbershop table with an incredible black airplane on the cover. Huge engines on each side of a delta wing and a long thin fuselage with a cockpit near the front. I never forgot that airplane, it was an SR-71 Blackbird. Fifty-five years later, I wrote a brief article about the first Blackbird -- the A-12. It's the fastest and highest flying jet airplane that was ever built. Everything about the A-12 was incredible. A requirement was developed to:

    • make an airplane so fast that nothing could catch it,
    • make it fly so high that nothing could reach it, and
    • make it nearly invisible.

    Add to that the fact that no one knew how to do it, the materials didn't exist and it had to be done quickly.  Groom Lake and Area 51 were built for the U-2 and then used for the A-12, Clarence "Kelly" Johnson and his Skunk Works built the U-2 and then built the A-12.  The A-12 was a Central Intelligence Agency (CIA) spy plane just as the U-2 was originally. 

    ----------------------------------------------------

    In September 2020, I finished this 20 page article on the A-12 and placed it on the Analysis Page.  I never thought to post it to the Wifcon Blog.  I'm doing that now.  The article took a long time to write because the building of the A-12 was incredible.  Much of the material used to write this article was from 60 years ago and many potential sources confused the SR-71 story with that of the A-12 story.    Others were flat out wrong.  I used sources from people who worked on or flew the A-12.  Fortunately, the CIA finally declassified some documents on the A-12 sometime after 2000--maybe 2007 or 2013--and made it available to the public.  There wasn't much of it but it filled in some of the missing pieces.

    There are many facts and stories about the A-12 that are of interest.  One is that, in the A-12, the engines produced only about 20 percent of the power at crusing speeds.  Most of the power came from from the pointed cones sticking out of the nacelles.  Also, the A-12 ran its afterburners continuously.  Then there were the 2 Buick "nailhead" V-8s that were conected to each other to "spool-up" and start each A-12 engine.

    At the end of the article, I list the places you can still see an A-12 and added links to Google Maps.  If you look closely at the maps, you will find an image of an A-12.  I also list where the only YF-12A, a derivative of the A-12, is at.  Now, the YF-12A is another story.

    Please read:  Faster Than A Speeding Bullet, Three Times Higher Than The Tallest Mountain.

  6. Robert Marcus, the liquidating trustee of the Las Uvas Valley Dairies sued Dean L. Horton and Frances H. Horton in the U.S. Bankruptcy Court of New Mexico. Mr. Marcus sought declaration that the main assets in the bankruptcy estate at issue were held in constructive trust for the estate he represents. Dean and Frances Horton applied for motion for judgment on the pleadings requesting the proceedings be dismissed for failure to state a claim. Mr. Marcus asserted he had a valid claim for recognition of a constructive trust.

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    View the full article

  7. In the 2019 National Defense Authorization Act (NDAA), Congress placed serious limitations on the Government’s use of Lowest Price, Technically Acceptable (LPTA) procurements. As a result, we should be seeing the Government issue more RFPs in which technology and innovation outweigh price. In these instances, contractors can seek a higher price but are expected to show substantial technological advantages. Two recent protests cases out of GAO illustrate the principles of technical proposal evaluation when technical factors are more important than price, and demonstrate the potential cost/technical trade-offs under these circumstances.

    Read the full article here

  8. ASHBURN, Virginia (September 19, 2018) The National Contract Management Association (NCMA)

    President Charlie Williams Announces the New NCMA Chief Executive Officer

    On behalf of the National Contract Management Association (NCMA) Board of Directors, I am pleased to announce the appointment of Kraig Conrad, CAE, CTP, as the new NCMA Chief Executive Officer. Kraig will formally take his position on November 1, 2018. Kraig joins NCMA with 20 years of association leadership experience. He most recently served as Chief Executive Officer of the Professional Risk Managers’ International Association (PRMIA), where he guided the PRMIA Board of Directors and its global network of more than 50,000 risk professionals to craft an enhanced vision for the group that includes a long-range strategic plan; new advocacy, certification, and training efforts; promoting the PRMIA brand; and enhancing membership benefits.

    Prior to PRMIA, he held many roles at the National Investor Relations Institute, including Acting Co-Chief Executive Office and Vice President for Programs and Development. Kraig has also served as Research Lead for Strategy Practice at Corporate Executive Board, Director of Corporate Finance and Risk Management and Director of Strategic Alliances at the Association for Financial Professionals. He started his career as a Financial Analyst at Credit Suisse.

    Kraig earned a Bachelor of Arts in Economics from the University of Southern California and a Master of Business Administration from the University of Illinois at Chicago. He is a Certified Association Executive and member of the American Society of Association Executives, and a Certified Treasury Professional and member of the Association for Financial Professionals.

    “We are excited to have Kraig join our team. Kraig has demonstrated time and time again exemplary leadership skills and thoughtful approaches to the business of association management,” says NCMA President Charlie Williams. “We are confident that Kraig is the right person at the right time for NCMA as we continue the NCMA journey that was begun over 59 years ago. As our new CEO, Kraig’s association leadership skills will be critical to the Board of Directors as it charts the association’s strategic path forward and seeks to further elevate the association’s relevance to the profession it serves.”

    The selection of Kraig concludes a national search supported by Staffing Advisors, a Washington, DC-based executive search firm. Kraig shares the NCMA dedication to professional growth and the educational advancement of acquisition and contracting professionals worldwide. Please join us in congratulating Kraig as we welcome him to the organization.

    Founded in 1959, the National Contract Management Association (NCMA) is the world's leading professional resource for those in the field of contract management. The organization, which has over 18,000 members, is dedicated to the professional growth and educational advancement of procurement and acquisition personnel worldwide. NCMA strives to serve and inform the profession it represents and to offer opportunities for the open exchange of ideas in neutral forums. For more information on the association, please visit www.ncmahq.org.

    Contact: Amanda Gillespie, Marketing & Communications Director agillespie@ncmahq.org (571) 382-1127

    NCMA_CEO Kraig Conrad - FINAL.pdf

  9. The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor. Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 N&CR ¶ 22), I expressed the fear that the reasoning would be subsequently applied to procurement contracts.

    My fear was realized in a construction contract case, Metcalf Construction Co. v. U. S., 102 Fed. Cl. 334 (2011). In that decision, the judge described eggregious conduct on the part of the government officials that would have been held to be a breach of the implied duty of good faith and fair dealing under many earlier cases. However, the judge held that under the Precision Pine standard, the contractor had not proved that the actions were specifically targeted at the contractor. In the February 2012 Nash & Cibinic Report (26 N&CR ¶ 9), I criticized this decision but stated that I believed that even if the decision was affirmed on appeal, most contracting officers would not take this as a signal that the proper way to administer contracts was to abuse the contractor.

    Fortunately, a panel of the Federal Circuit has reversed the decision, Metcalf Construction Co. v. U. S., 2014 WL 519596, 2014 U.S. App. LEXIS 2515 (Fed. Cir. Feb. 11, 2014). The court held that the lower court had read Precision Pine too narrowly and that “specific targeting” was only one example of the type of conduct that could constitute a breach of the implied duty of good faith and fair dealing. Importantly, the court also rejected the government’s argument that this “implied duty” only could be found when it was footed in some express provision of the contract. The court concluded that the correct rule was only that the express provisions of a contract had to be examined to ensure that they had not dealt with the conduct of the government; for if they had, they would override the implied duty.

    This leaves us in a tenuous position with regard to the views of the Federal Circuit. We have one panel in Precision Pine stating a narrow rule, another panel in Metcalf Construction stating the traditional rule, and a third panel in Bell/Heery A Joint Venture v. U.S., 739 F.3d 1324 (Fed. Cir. 2014), ruling in favor of the government because the contractor had not alleged facts showing that the government had “engaged in conduct that reappropriated benefits promised under the contract” (which is part of the Precision Pine reasoning). Thus, it is difficult to state where the judges of the Federal Circuit stand. Hopefully, the court will agree to take either Metcalf Construction or Bell/Heery to the full court for an en banc review of the issue.

    I’ve never been sure why the Department of Justice has so vigorously argued that the government should not be held to the same standards of conduct as a commercial buyer. Of course, persuading the courts and boards that a narrower standard should be applied to the government is a way to win litigated cases. But, in my view, encouraging abusive or non-cooperative conduct hurts the government as much as it hurts its contractors. I have taught for many years that in the long run the government benefits from actions that show industry that it is a fair contracting partner. A line of published judicial decisions that demonstrates that the government is not such a partner is one more of the many messages that tell companies they should sell to the government only when they can find no other customer. Surely, this is not the message that government agencies in need of products and services on the commercial marketplace want to convey to companies that can provide those products and services.

    Many years ago when I came to Washington to work in the field of government contracting, I concluded that there was one major advantage to being on the government side of the negotiating table. That advantage was that I was under no pressure to extract money from the contractor by unfair bargaining or unfair contract administration. To me fairness was an integral part of the job of a government employee. I still believe it and teach it. Thus, no matter what the outcome of the good faith and fair dealing litigation, I will continue to urge government employees that fair treatment of contractors is the only way to go.

    Ralph C. Nash

  10. When I get older, losing my hair

    Many years from now . . . .

    When I'm Sixty-Four

    John Lennon, Paul McCartney

    Shortly after we celebrate our country's independence on July 4, 2013, Wifcon.com will end its 15th year on the internet. With much help from the Wifcon.com community, I've raised a growing teenager. When I started, I was 49 and my hair was so thick that I often shouted ouch or some obscenity when I combed it. Wifcon.com has existed in 3 decades and parts of 2 centuries. During that period, I've updated this site for every work day--except for the week or so when I called it quits. I remember the feeling of relief. I thought it was over. However, many of you convinced me to bring it back. Yes, just when I thought I was out, many of you pulled me back in.

    As I mentioned in an earlier post, someone once told me that Wifcon.com was my legacy. I once had great hopes for a legacy. Perhaps, a great saxophone player belting out a solo in front of thousands of fans and seeing them enjoying themselves. Instead, here I sit in my solitude looking for news, decisions, etc., to post to the home page. For many years, my dog Ambrose kept me company. Now, my dogs Blue Jay and Lily stare at me and look for attention. With my sights now set realistically, I accept that Wifcon.com is my legacy. It's the best I could do.

    Every now and then, I receive an e-mail from someone thanking me for Wifcon.com. They tell me how it helped their careers. These e-mails keep me and Wifcon.com going.

    Send me a postcard, drop me a line,

    Stating point of view

    Indicate precisely what you mean to say

    Yours sincerely, wasting away

    Give me your answer, fill in a form

    When I'm Sixty-Four

    John Lennon, Paul McCartney

    The thoughts in these e-mails won't let me quit. I still search each night for something to add to the site in hopes that it will increase your knowledge. If I find something new, I still get excited. Often, it feels like a self-imposed weight around my neck. What started as a release for my imagination has evolved into a continuing and daily addition to the contracting community. In the evenings, it is as if I'm Maillardet's automaton. I head over to my office, sit before the computer, and update. Then I send the updated pages to Virginia where it is accessed from around the world. Maybe I'm addicted to Wifcon.com; maybe I was born with the Wifcon.com gene.

    If you haven't added the numbers, I'm 64 now. Wifcon.com and I are showing our age. I can comb the top of my head with my fingers. The ouches and other obscenities caused by my once thick hair are gone. A recent upgrade to the discussion forum requires that I turn the "compatibility mode" off on my browser. In that mode, I realized that Wifcon.com is ugly. I have current software for the needed future redo of this site.

    I am Wifcon.com; Wifcon.com is me. It is my legacy and my albatross. As always, thank you for your support.

    You'll be older too,

    And if you say the word,

    I could stay with you.

    When I'm Sixty-Four

    John Lennon, Paul McCartney

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