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  1. Happy Friday, Readers. It’s sad that summer is coming to an end but the good news is that fall is upon us which means it is time for cool weather, falling leaves, and football! It seems everyone is filled with optimism at the start of the season. Here’s hoping your favorite team is victorious and in between games here’s a few interesting articles on what’s going on in federal government contracting this week.

    Have a great weekend! Go Team!

    • Class Deviation—Limitations on Subcontracting for Small Business [DoD]
    • 2021 Growth Accelerator Fund Competition and SBIR Catalyst Competition Result [SBIR]
    • Defense Wants to Know More About Potential Barriers for Small Businesses Contracting [NextGov]
    • Where does waste, fraud and abuse in the military stand after Afghanistan? [FedNewsNet]
    • Minimum Wage for Federal Contracts Covered by Executive Order 13658, Notice of Rate Change in Effect as of January 1, 2022 [FedReg]
    • Five Ways 9/11 Changed the Defense Industry [GovExec]
    • Questions Linger on Vaccine Mandate for Federal Contractors [GovExec]
    • Pentagon official says CMMC changes will be finalized ‘very soon’ [FedNewsNet]
    • Industry’s patience wearing thin with DoD’s CMMC, GSA’s follow-on to OASIS [FedNewsNet]
    • Air Force software platform expansion stalled by cybersecurity concerns [FedScoop]
    • Parkville Man Pleads Guilty to $335 Million Fraud, $615,000 Tax Violations [DoJ]
    • One contractor learned that it’s a bad idea to bribe federal officials [FedNewsNet]
    • Former Walter Reed department head pleads guilty to federal charge [FedNewsNet]
    • SBA Announces Entrepreneur, Investor, and Award-winning Entertainer Jennifer Lopez to Headline National Small Business Week Virtual Summit 2021[SBA]
    The post SmallGovCon Week in Review: September 13-17, 2021 first appeared on SmallGovCon - Government Contracts Law Blog.

    View the full article

  2. GovCon Legal Alerts

    Client Alert-Labor Day Ransomware Threat

    By: Brandon Graves, Partner, Centre Law & Consulting

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    The FBI and the Cybersecurity and Infrastructure Security Agency (CISA) issued an advisory concerning an elevated threat of ransomware attacks over the holiday weekend. 

    Neither agency has identified a specific threat but base their warning on historic spikes in ransomware activity over recent holiday weekends.  Commodity ransomware is a threat to all businesses regardless of size due to its low cost to deploy, resulting in a “spray and pray” method of malware distribution.  Clients with high revenue or sensitive data are at risk of more targeted threats.

    Modern ransomware facilitates blackmail in two ways: 

    1. it encrypts important data and/or systems to that organizations can’t function.
    2. it exfiltrates data that the criminals can threaten to release that data if they aren’t paid. 

    This means that effective offline backups are no longer sufficient to address the risks caused by ransomware.

    Clients should take several steps to prepare for the immediate threat.  First, they should ensure that their cybersecurity tools have the indicators of compromise for the malware listed in the advisory loaded.  Second, they should make sure that those tools have proper visibility across the organization’s network.  Third, all software should be fully patched and updated.  Clients should consider advising employees to be especially careful around suspicious emails.  Some clients may turn off non-essential services over the holiday weekend, such as RDP.  Validating back-ups is another important consideration.

    These steps may reduce the risk for this holiday weekend.  Clients should take additional steps to address ransomware more broadly.  These steps include developing and testing incident response plans, disaster recovery plans, and business continuity plans.  Clients should also take steps to improve their basic cybersecurity posture, including eliminating unneeded software and services, scanning their networks for vulnerabilities, implementing vendor risk management, and increasing employee training.  Multi-factor authentication is another critical tool in addressing ransomware, although it is not a magic bullet.  Other actions may be advisable depending on a client’s specific circumstances.

    If you have questions or concerns about ransomware or cybersecurity more generally, we can help you manage your risks and exposure.  If you suffer a ransomware incident this weekend, or anytime, we are available to assist you.

    GSA-ALERT-GRAPHIC-5.png

    Stay in the know. Get industry alerts from our legal team.

    Read More Alerts

    Client Alert-Labor Day Ransomware Threat

    The FBI and the Cybersecurity and Infrastructure Security Agency (CISA) issued an advisory concerning an elevated threat of ransomware attacks over the holiday weekend. 

    Neither agency has identified a specific threat but base their warning on historic spikes in ransomware activity over recent holiday weekends. 

    Read More »

    The Importance of Patch Updates and Validation

    The release of software patches, even ones patching actively exploited vulnerabilities, is, unfortunately, not news.  But we wanted to take this opportunity to remind our clients about some legal issues related to patching.

    Read More »

    Vaccines for Federal Contractor Employees – Not Required, But Certainly Encouraged

    In general, the new safety plans will split government employees, on-site contractors, and visitors into two groups – (1) the fully vaccinated and (2) those not vaccinated or those who refuse to provide proof of vaccination. Unsurprisingly, things are much harder for the second group:

    Read More »

    Interested in Connecting with our Legal Team?

    The post Client Alert-Labor Day Ransomware Threat appeared first on Centre Law & Consulting.

    View the full article

  3.  

    At NITAAC, we not only are fueling information technology (IT) modernization across the government, we are also leading by example. As one of the federal government’s top sources for ‘everything IT,’ NITAAC has taken the message of modernization to heart and has reimagined how agencies acquire IT.

    NITAAC’s three easy-to-use, easy-to-understand, Best in Class (BIC) Government-Wide Acquisition Contracts (GWACs) – CIO-SP3, CIO-SP3 Small Business, and CIO-CS – provide any federal agency, government-wide, with an easy and accessible method for acquiring more effective citizen services or mission delivery.

    Whether your agency buys direct or needs help from a Contracting Officer, NITAAC has a program that’ll work for you. And no matter how large or how complex your IT challenge may be, you can count on NITAAC Contract Holders to get it done quickly and get it done right. From operations and maintenance of legacy systems to complex, emerging technologies like Cybersecurity and Artificial Intelligence, NITAAC Contract Holders are ready to help federal agencies excel.

    Check out CIO-SP3 with its 137 labor categories and ten task areas, CIO-SP3 Small Business with depth in five socioeconomic categories, or CIO-CS for IT Commodities and As-A-Service Solutions. What’s more, the NITAAC Government-Wide Strategic Services (GSS) program, a subset of CIO-CS, provides a real opportunity under category management for buyers to acquire laptops and desktops quickly and efficiently.  

    Although fiscal year 2020-2021 was full of challenges and a collective new normal as we faced a global pandemic, we’ve been undaunted in our efforts to improve our customers’ user experience, choice of contracting approach and overall accessibility.  

    So, what exactly can agencies expect when they engage with NITAAC? Read ahead for a quick synopsis and check out the full Federal News Network 2021-2022 NITAAC Contract Guide for more information. Plus, here’s a link to watch the NITAAC Contract Guide video interviews.

    Best in Class GWACs: CIO-SP3, CIO-SP3 Small Business and CIO-CS

    The BIC designation doesn’t just benefit the NITAAC community; it benefits the entire federal government.  The BIC designation is awarded to contracts that consistently deliver strong results. By relying on contracts with good track records, agencies — and the federal government as a whole — can raise the baseline for the quality of acquisitions.

    The BIC designation for all three of our GWACS signals to the acquisition community that NITAAC consistently demonstrates value that allows agencies to save time, money and realize speed to delivery. We also offer solutions and processes necessary to meet the federal government’s ever-evolving IT requirements. Quite simply, BIC tells the federal community that agencies are getting the best in both services and spend under management (SUM).  Agencies can meet all their SUM tier goals (0, 1, 2 and 3) using NITAAC BIC GWACs.

    We are tremendously proud of this distinction because it’s a testament to the quality of our Contract Holders, contracting officers, customer service and overall team.

    But, even more importantly, the designation will result in even further cost savings for our agency partners.

    Since 2012, agencies have obligated more than $35 billion to NITAAC GWACs because they understand the value and cost-savings doing so affords.

    Democratizing Expertise with Assisted Acquisitions

    If your agency would prefer even more detailed guidance throughout the acquisition process or you just need an extra pair of hands, our Assisted Acquisitions program is ready to pair you with an experienced FAC-C, Level 3, Digital Services Certified Contracting Officer capable of helping you navigate the procurement process.

    Warranted acquisition professionals will work with you to determine the best course forward for your acquisition, from the market research and acquisition planning phase all the way through administration and closeout. NITAAC Assisted Acquisitions is there for your agency throughout the entire procurement lifecycle.

    Eliminating Redundancies and Delivering More Value with NITAAC GSS

    The Federal Government spent over $89 billion in 2020 on hardware, software, telecommunications, IT security, and IT professional services through tens of thousands of contracts and delivery orders.

    NITAAC is pleased to serve as one of three Best in Class sources for purchasing laptops and desktops for civilian agencies. In fact, NITAAC GSS increased 33% in 2020 (over 2019) for laptop and desktop buys. What’s more, NITAAC GSS goes beyond standard configurations, offering products outside of the OMB-mandated specifications such as Apple iPads and Macs. It’s a perfect program for end-of-year use-it-or-lose-it funds.

    Accept No Substitutes: Outstanding Customer Support

    Customer service is not something we take for granted at NITAAC. We've geared our operations around our customers’ needs so whether they are just beginning a solicitation and need help with research, or they’ve already placed a task or delivery order on one of our vehicles, NITAAC is committed to making sure they get answers faster, so they can keep their acquisitions on track.

    From a vendor standpoint, open and frequent communications are key. For our CIO-CS Contract Holders, we work very hard to rapidly approve their Technology Refreshment Proposals (TRP) to add new commodities on the contract so customers can always get what they need, when they need it.

    We guarantee that TRPs will be reviewed within 72 hours, but the majority of TRPs are reviewed within 24 hours. If a Contract Holder or customer needs something sooner, we ask them to call NITAAC Support so we can expedite the review.

    Want to learn more?

    To learn more about these, and all the ways NITAAC can help you reimagine your acquisitions, read the Federal News Network 2021-2022 NITAAC Contract Guide, watch the NITAAC Contract Guide video interviews or contact our customer support team at NITAACsupport@nih.gov.

  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. 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

  7. 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

  8. 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

  9. 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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