The Army has a plan to no longer “fight the network.”

Through the Unified Network Operations (UNO), initiative, the Army wants to create an agile, software-defined network that is easy to set up and use. This is the opposite of what soldiers currently must deal with then setting up a tactical network that requires on-premise hardware, cables and unique knowledge and skillsets.

The Army is laying the groundwork for this new network set up under UNO in a new draft request for proposals that Lt. Col. Keith Jordan, the product manager for Tactical Cyber and NetOps, in the Army’s Program Executive Office Command Control Communications-Tactical (PEO-C3T) said will bring efficiency, ease of use and, most importantly, meet the needs of commanders more readily.

“There’s a time component of how long it takes to make the network operate. That’s a concern. But also, it’s a manpower issue. It’s specialized training and skills that our signal soldiers are required to have in order to make all these different components of network work, both from a hardware perspective, a cabling, a software interoperability issue perspective and troubleshooting. So there’s a lot of different factors that the soldiers have to go through to make the network work,” Jordan said in an exclusive interview with Federal News Network. “When they are having to do those tasks across multiple items, one-by-one, it does take a lot more time. And depending on a unit, you’re going to always have a degree of soldiers that have the right requisite training and the right requisite experience. So there’s always a little bit of inefficiency built into that model. What we’re looking to do through this is to really improve that inefficiency, and make it much more a much simpler task for those soldiers, especially if we’re not fully manned that at each unit to do that mission.”

PEO-C3T has been leading the UNO effort for the better part of two years and the draft RFP is the second piece of a three-pronged effort to create this new software-defined network.

Jordan said the draft solicitation, for which responses are due by July 17, will help inform its long term plans to bring in commercial technologies and take advantage of cloud services. PEO-C3T expects to issue a final RFP for this multiple award indefinite delivery, indefinite quantity contract in early 2025 and make awards in early 2026.

In the meantime, Jordan said the Army will soon award “several” other transaction agreements (OTAs) to examine prototypes of what UNO may look like.

“The Army acquisition executive last year decided that UNO would utilize the software acquisition pathway. This is a new pathway under the adaptive acquisition framework that really is focused on how we manage, contract and deliver software capability to the Army. It’s different than what we might typically see under the some of the older pathways. This really is a revolution of thinking in the Army of how we recognize that software is different than hardware and it needs to be procured differently,” he said on Ask the CIO. “Really, what that does is it allows us to deliver capability incrementally versus like a big bang where the product is done all at once. We recognize that this will not be done right off the bat, you’ll get updates to the capability over time and each time we make an update, the capability will get more and more mature, more and more capable. The whole idea is we’re able to rapidly make these updates versus in the past where it may take a really long time to make an update. We want to update very often based on feedback in whatever theater we might be operating in.”

Army testing prototypes through OTA

Through the OTA process, Jordan said vendors will demonstrate SDN capabilities that can bring together several disparate systems and handle a large number of users over a several month period.

He said the vendors will demonstrate the SDN capabilities in the lab and in the field so soldiers can provide real-time feedback and the contractors can add or change the network as required.

Jordan said “usability” and “simplicity” will be key concepts that the Army wants to see in the prototypes.

“We think by doing that we’re going to really get down to a good vendor, and then following that, we’re going to pursue a FAR-based contract that will allow a lot more vendors to get in the mix and be able to deliver various capabilities,” he said. “We don’t know how many vendors we’re going to end up with so that’s why the window [for timing] is a little bit difficult. But we think between late 2024 and 2025, we’ll be able to complete that [OTA award] process. Then as we go into the prototype phase, the idea would be that’s a little bit of a longer phase because there’ll be a downselect. We’re not going to take the same amount of vendors from the lab to the field. We’re going to take those vendors out to the field and that’ll be a little bit longer because what we do want to do is see their agile development process and we want to be able to see as a soldier provides feedback to a particular company, we want to see him make the changes that we’re looking for. It’s not just about the technology, it’s also going to be about the company’s ability to manage the process.”

Jordan said the network of the future will depend on agile and DevSecOps process, where signal soldiers will not have to have special skillsets.

The future network also will enable commanders to make faster and better decisions as data will be easier to get and use.

“We’ve had to fight the network for a long time. This will help us be able to get the network up and running efficiently, tailored to our mission needs and operationalize it,” Jordan said. “For industry, there’s going to be lots of opportunities inside UNO to deliver unique and value added capabilities to the network. We’re really excited because there is so many opportunities for businesses, both small and large, to deliver capability inside the network, around things that we haven’t even thought of yet that we may want. As long as our vendors are able to operate in a modular open system approach, and that we’re able to integrate capability into that architecture in a rapid and easy to do methodology, we’re really going to be successful.”

The post With UNO, Army intends to stop battling its own network first appeared on Federal News Network.

Conflicts of interest in federal contracting can happen in a lot of ways. In one tangled case, an award winner’s subcontractor turned out to have a conflict of interest. And it may have scuttled the deal. Haynes Boone Procurement Attorney Zach Prince joins the Federal Drive with Tom Temin.

Interview transcript:

Tom Temin
This one’s a little bit convoluted, but you’re always good at sorting them out for us, Zach. This was a [Center for Medicare and Medicaid Services]  award for what to whom?

Zach Prince
So this was the third iteration of a CMS award. This was a protest by a company called the Square Group (ASG) of an award to its competitor Cogent. This award was for health insurance marketplace and financial management analytics. So analyzing data generated from other CMS contracts, among other things.

Tom Temin
All right. And it didn’t initially go to Cogent, it went to ASG first.

Zach Prince
That’s right. So ASG got this award in 2023. And then Cogent brought a protest at GAO. Before GAO got to a decision there, the agency took corrective action, held exchanges with Cogent and ASG, got revised quotations, and then decided that actually it was going to award to Cogent which had a substantially lower price. So at that point, ASG protested here at GAO.

Tom Temin
Yeah. And they had a lot of grounds. But there was only one that really kind of stuck and took them both through a long process.

Zach Prince
A lot of these protests, especially at GAO, you go in and you argue basically everything. As Judge Thompson said in one of his decisions from the Court of Federal Claims recently, “throw the throw spaghetti at the wall and hope something sticks.” That’s how a lot of protests go. This though, GAO was struck by the organizational conflict of interest (OCI) issue, and that ultimately is what it decided in favor of for ASG.

Tom Temin
Right, so now, nobody has the contract while CMS figures out what to do. But in this case, the organizational conflict of interest wasn’t with the main contractor, Cogent; it was with one of its subcontractors. Explain what was going on there.

Zach Prince
So there are a couple of categories of OCI. Organizational conflicts of interest can be impaired objectivity — which is what happened here — biased ground rules, or unequal access. So some of those are things that can be mitigated, usually impaired objectivity, which means basically, that you’re evaluating your own work from another contract. Can’t be mitigated, unless it’s a subcontractors issue, and then potentially the subcontractor can be firewalled off. That’s what the issue was here. A Cogent subcontractor, that it was having do quite a bit of the work apparently, had been running a separate contract for CMS supporting the federal exchanges, or healthcare.gov, where it was generating the data that it was then going to be validating under this new contract. Classic, classic impaired objectivity OCI; there was a proposed mitigation strategy. But on review, GAO decided that strategy just wasn’t enough.

Tom Temin
In other words, this subcontractor was going to be evaluating data that it itself generated, not in relation to its direct work for CMS, but in its work as a subcontractor to Cogent, which would have ended up in the same place.

Zach Prince
You can’t have a situation where you’re evaluating your own work, or where somebody who’s part of your team is evaluating its own work. It is, at least optically, a major problem where the agency should not be able to trust or can’t trust the independence of that assessment. And so they proposed a mitigation strategy. They said, ‘we’re going to take this up, and we’re going to firewall them off.’ So they’re not reviewing that one type of data, payment data, that was generated from the other contract. And the agency said, ‘okay, that’s good enough.’ But when GAO looked at this during the protests, they said, ‘hold on, there are several categories of data that are at issue here. There’s payment data, there’s enrollment data, there’s potentially other data, all of which are data that were generated by the subcontractor under the other contract. Your proposal for mitigation only dealt with one category, it didn’t deal with these other ones.’ So for the agency to have accepted the mitigation proposal as is, where it only dealt with one category that was irrational. And that was the basis to sustain the protest.

Tom Temin
We’re speaking with Zach Prince, he’s a partner at the law firm, Haynes Boone. Would the subcontractor have known about what’s going on, because it probably would have, because don’t subcontractors know when they’re part of a team that is bidding by the prime for a new contract?

Zach Prince
They absolutely should have known what’s going on. And the prime, Cogent, really should have known about this issue, too. The issue was brought to their attention during the evaluation also, by the technical evaluation, and that’s when they came up with this mitigation strategy. They didn’t reflect this mitigation strategy in their technical proposal, which by the way, they had a couple rounds of chances to provide a revised proposal. So they’ve got a technical proposal that says nothing about segregating these guys out. And in fact, they call for hundreds of hours of these guys’ time, the subcontractor’s time, doing valuation tasks. That was directly contrary to what they said in the mitigation plan. They just didn’t fix the issue when they had opportunity.

Tom Temin
Yeah, some things simply can’t be mitigated, in other words.

Zach Prince
It could have been mitigated if they did it early enough, if they came up with a way that this sub just wasn’t doing that work. Some things certainly can’t be. If the prime was the one who had generated this data that they’re then evaluating, you can’t mitigate it by firewalling yourself off, it’s too much of the work. Sometimes, if it’s a tiny part of the scope of work, maybe you can subcontract that as the prime, but most cases, you can’t. But in this case, it just wasn’t reflected in their technical proposal, which is another big issue GAO had with the agency’s conduct.

Tom Temin
Even if they could say, well, this subcontractor will continue to evaluate this data. But this particular sliver of data which they generate under this contract with us, they will not be. We’ll find somebody else to evaluate it. Even that doesn’t seem to totally mitigate it, because you still have this business relationship, and it just doesn’t sound clean no matter what you do in some cases.

Zach Prince
And I think it’s rational for the agency to determine that that is something that can’t be mitigated if that’s what they wanted to do. The finger is on the scale heavily for the agency, as long as it’s making a rational decision. The problem is here, they weren’t making a rational decision. It just wasn’t reflected in the technical proposal, which showed that, basically, if they did this mitigation, what they proposed was unworkable. And the mitigation itself just didn’t go far enough. Because it wasn’t just a sliver of data that was the problem. It was this wider set of data.

Tom Temin
And so now nobody has the contract. GAO just, I guess, invalidated it. What happens in these situations when you have too close bidders. One was better on price, but it has a conflict of interest. Can the agency say ‘okay, we’ll go back to the first company, Square Group?’

Zach Prince
The agency has got a couple of options. And the most outlandish option — this is definitely not happening — is the agency just says ‘we don’t care what GAO says.’ They don’t have to; GAO just makes recommendations. But if you don’t do what GAO says, then you’re going to end up in the Court of Federal Claims. And your agency is going to end up in front of Congress explaining why they chose to ignore GAO.

Tom Temin
Plus it could be two more years till you get any of the work done.

Zach Prince
Right. I mean, if they choose to ignore GAO, then they can just let Cogent keep going. And then they get the work done. And sometimes that happens in really sensitive procurements. But it is really rare. They could also go back now and say, ‘let’s reopen discussions. And we’ll get a new proposal from Cogent, we’ll get a new proposal from ASG. ASG will probably give us a much better price. Cogent will give us a different technical proposal that deals with this issue.’ And then they reevaluate at that point. That’s the more complicated way to do it. I’m not sure right now, how the work’s getting done. Maybe there’s a bridge contract from the incumbent. I think this probably is ASG continuing to perform because I think they were the incumbent, so maybe the agency goes that route.

Tom Temin
All right, so we could call this one be fair or be square. Pun intended.

The post Why bidders for federal contracts need to deal with conflicts of interest early on first appeared on Federal News Network.

• The Justice Department's Civil Cyber-Fraud Initiative chalked up another successful case by winning more than $11 million from two contractors to resolve False Claims Act allegations. Guidehouse paid $7.6 million and Nan McKay and Associates paid $3.7 million to put to rest claims they violated the False Claims Act. The companies failed to meet cybersecurity requirements in contracts intended to ensure a secure environment for low-income New Yorkers to apply online for federal rental assistance during the COVID-19 pandemic. Guidehouse and Nan McKay admitted that they failed to satisfy their obligation to complete the required pre-production cybersecurity testing of the system.
  (DoJ wins biggest cyber False Claims Act settlement yet - DoJ)
• House appropriators are digging in even further into federal telework and agencies’ return-to-office policies. One fiscal 2025 spending bill that the GOP-led committee advanced this week includes language targeting teleworking feds. Language accompanying the bill would set new requirements for agencies to publicly report their policies on telework and office space. It would also require agencies to publicly share their office space utilization rates in the D.C. area. Unions are pushing back against the language, saying that telework policies should be tailored to the nature of employees’ work, rather than having a one-size-fits-all approach.
  (More House appropriators target federal telework, office space - Fedeal News Network)
• Two Defense Department projects made the cut for the Presidential Federal Sustainability Awards the White House announced this week. One is a project the Air Force has been working on since 2019 at Florida’s Tyndall Air Force Base, about half of which was destroyed by Hurricane Michael the previous fall. The White House credited Air Force officials with rebuilding with a “base of the future” in mind, and using construction techniques that should make the installation more resilient against severe weather. The second is the huge Edwards Air Force Base solar project, which became one of the world’s biggest solar and battery storage facilities when officials cut the ribbon last year. The 4,000-acre project is also DoD’s biggest public-private partnership to date.
  (DoD Components Receive Presidential Sustainability Award - Department of Defense)
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• The Defense Counterintelligence and Security Agency is managing a surge in security clearance applications. DCSA Director David Cattler said his agency is receiving up to 11,000 new applications for investigations every week. The surge has led to longer security clearance processing timelines. Cattler told the House Oversight Committee this week that secret-level cases are taking an average of 92 days to process and a top-secret case about 188 days.
  (An examination of DOD’s struggling background check system - House Oversight and Accountability Committee )
• For the first time in a decade, the Government Accountability Office is out with a proposed revision of federal internal controls. Called the "Green Book," GAO said its changes emphasize preventive control activities and highlights management's responsibility for internal control at all levels and within all functions of an agency's structure, such as program and financial managers. The proposed revisions provide additional requirements, guidance and resources for addressing risk areas such as fraud, improper payments and information security when designing, implementing and operating an internal control system. GAO has not updated the Standards for Internal Control in the Federal Government since 2014. Comments on the proposed revisions are due by August 26.
  (GAO proposes first updates to the 'Green Book' since 2014 - GAO)
• The Department of Homeland Security is expanding a new cyber personnel system. DHS established the Cyber Talent Management System (CTMS) in 2021. It got off to a slow start, but DHS has now hired nearly 200 people using CTMS. DHS Chief Information Officer Eric Hysen said the department has made hundreds of offers using the system. Hysen told the House Homeland Security Committee that in the coming years, DHS will expand use of CTMS across the department.
  (DHS aims to expand CTMS after ‘challenges’ with rollout - Fedeal News Network)
• The Partnership for Public Service is down to just six finalists for the 2024 Sammies People’s Choice Award. The finalists are part of the larger awards program, which recognizes the work of career civil servants. The People’s Choice finalists include one team that made it possible for non-tax forms to be electronically submitted to the IRS. Another finalist developed an app that lets veterans use their phones to make health care appointments and manage insurance claims. Voting on all six finalists is open to the public until July 12. The winner will be recognized later this year during a Sammies ceremony at the Kennedy Center in Washington, D.C.
  (2024 Sammies People’s Choice Award finalists - Partnership for Public Service)

The post False Claims Act allegations leave two contractors with millions of dollars in fines first appeared on Federal News Network.

In a long-running case, a vendor of computer vision software protested a National Geospatial-Intelligence Agency award to systems integrator CACI, which was going to develop its own computer vision software. The protester, Percipient, had not bid. But Percipient did file in the Court of Federal Claims on the basis that the government is obligated to use commercially available products. For what happened next, the Federal Drive with Tom Temin talked to Haynes and Boone procurement attorney Dan Ramish.

Interview Transcript: 

Tom Temin: I guess before filing at the Court of Federal Claims, this company Percipient had gone back and forth with the NGA and with CACI, trying to get awarded as a subcontractor.

Dan Ramish: Yes, that’s right, Tom. So what’s interesting and unusual in this case is that Percipient wasn’t in a position to meet the government’s entire requirement. The government needed both a repository for storing and managing and disseminating visual intelligence and also the computer vision functions that Percipient provided. And so at most, it could act as a prospective subcontractor, but it couldn’t prime contract the work with the government. So it was relying on this statutory preference for using commercial products and services.

Tom Temin: So the question then when it went to the Court of Federal Claims after being said basically, ‘Thanks, but no thanks,’ by both NGA and CACI, it filed a protest on that basis. But there were two problems there right are two issues that had to overcome. 1. Did that really apply the commercial requirement and 2. Did the company have standing?

Dan Ramish: So there were both standing and jurisdictional questions as to whether the protests could survive. The government filed a motion to dismiss and the court actually dismissed because of what’s called the task order protest ban, which says that protests that are in connection with the issuance or proposed issuance of an order under an IDIQ contract can’t be protested to the Court of Federal Claims. There are dollar thresholds where you can bring a protest at GAO, but the court won’t hear protests of issuance or proposed issuance of orders. This was relating to an IDIQ contract.

Tom Temin: So that provision that they could not protest comes from the Federal Acquisition Streamlining Act that’s of long standing here.

Dan Ramish: That’s right. And so the court was actually willing to entertain at the trial level the idea that this company had standing to protest, but they said, ‘Oh, wait a minute, this is under a task order.’ And so the FASA task order protest bar applies.

Tom Temin: Alright. So what happened next?

Dan Ramish: So next, Percipient appealed to the Federal Circuit Court of Appeals. And on appeal, the two major issues were first, this FASA task order protest bar, whether Precipient’s protest was in connection with the issuance of proposed issuance of a task or delivery order, and then also whether Precipient had statutory standing to bring the protest when it wasn’t an actual or prospective bidder on the contract. Precipient admitted that they couldn’t meet the entire requirement.

Tom Temin: Right. So what did that court decide?

Dan Ramish: So this was a split decision Tom with a two-judge majority and one judge that was dissenting, and the majority found that the FASA task order protest bar did not apply and that Precipient was an interested party withstanding to protest under the specific facts of this case relating to the commercial products and services preference. So on the first issue, the FASA task order protest bar, the majority held the Percipient’s protest was not in connection with the issuance or proposed issuance of a task or delivery order. And Precipient’s complaint didn’t ask the court to set aside CACI’s task order. Instead, they were saying, ‘Hey, you government NDAA should require CACI to look at our product and use it under the task order, but they weren’t trying to invalidate or challenge the task order itself. So the majority was convinced by this argument that wasn’t relating to the issuance were proposed issuance of task order.

Tom Temin: Right, a fine line there, basically, that they drew.

Dan Ramish: Exactly. And the dissenting judge totally disagreed with that and said that it went against the court’s precedent in a case called SRA International that really broadly precluded all protests that relate to work performed under a task order, and that this in connection with language is very broad, whereas the majority said, ‘Hey, if there didn’t need to be an issuance or proposed issuance was being challenged, then those words would have no meaning in the statute.’ So there was a real disagreement between the majority and the dissent on that point.

Tom Temin: We’re speaking with Dan Ramish, a procurement attorney with Haynes Boone. So how does the thing stand at this point then?

Dan Ramish: So the second issue, the majority and the dissent also disagreed as far as standing. So only an interested party has standing to bring a protest and the term interested party is defined in the Competition in Contracting Act for GAO protests. But the comparative statute for the Court of Federal Claims doesn’t include a definition. And so there’s case law from the Federal Circuit that applies the GAO CICA standard to the Court of Federal Claims. But here, the majority looked at that standard and said, ‘It wasn’t really appropriate to apply under these circumstances because the protester was bringing a challenge that wouldn’t be viable under CICA. They were challenging a stand-alone violation of law or regulation without challenging a solicitation or an award or proposed award of a contract.

Tom Temin: Right. So CICA by the way is Competition in Contracting Act. So therefore, what’s the end result here for Precipient? Are they done here?

Dan Ramish: No. So the majority said it was appropriate to create a new, broader test specific to these circumstances. And they also looked at the particular statute for statutory preferences for commercial products and services and said, ‘Hey, under these circumstances, the prime contractor has no incentive to look seriously at subcontractors providing commercial products and services because the alternative often is that they’ll develop their own products.’

Tom Temin: That’s slow and expensive and lots of revenue.

Dan Ramish: Precisely. So a clear conflict of interest on the part of the prime contractor and the majority was persuaded by that and said, you know, ‘unless we have a standard here with a subcontractor can bring protests in these kinds of circumstances, the statutes never going to be given proper effect.’ And so the majority said, ‘We’re a plaintiff invoking only a challenge based on a violation of law without challenging the solicitation or a proposed award of a contract brings a specific challenge under the statutory preference for commercial products or services.’ There’ll be an interested party if there an offer of a commercial product or commercial service that had a substantial chance of being acquired to meet the needs of the agency if the violation hadn’t occurred. That’s a totally new test.

Tom Temin: So that requires then what on the part of the NGA and of CACI if anything at this point?

Dan Ramish: Well, so the majority reversed and remanded the trial court and so the next natural step is that it would go back to the Court of Federal Claims. There is a very real possibility that there will be further action at the Federal Circuit, however, with an en banc review, which means the government is likely to ask for the full appellate court to do a review of this decision and issue a new decision, particularly because the dissenting opinion here said that the majority was misapplying the court’s precedent. And so those are the kinds of circumstances where the full court might consider doing a review. But the dissent also points out, ‘Hey, if this stands, this is going to be a big deal.’ In the dissent’s words, a very important government contracts case. And the dissent was pointing out, ‘Hey, this could lead to a flood of subcontractor protests that the government didn’t properly consider commercial products or services.’

Tom Temin: Every time the government then contracts for development of software, somebody somewhere could say, ‘Wait, I already do that function with my commercial software.’ And it can open a floodgate, basically, is what they’re worried about.

Dan Ramish: Commercial software, professional services, widgets across the board. The dissent is envisioning a new world where every company that offers a commercial product or service, watching the government develop something new or do its own thing without properly considering commercial alternatives could bring a lawsuit. The Court of Federal Claims using this new test.

Tom Temin: So at this point, though, the case is remanded to the Court of Federal Claims, which has to reconsider it basically.

Dan Ramish: Yes, they have to proceed with the protest. But as we say, I think this will be subject to further litigation. But it should stand unless it is overturned en bonk by the full appellate court.

The post What happens when a company that didn’t bid files an award protest? first appeared on Federal News Network.

Sometimes federal procurements don’t go according to the rules. Sometimes its worse, when bribes and kickbacks come into play. That’s what the Justice Department’s Procurement Collusion Strike Force tries to discover and prosecute. Now the strike force is expanding, with four new members. For details, the Federal Drive with Tom Temin spoke with the Dan Glad, the director of the Strike Force.

Interview Transcript: 

Tom Temin And just briefly review the task, the strike force, what it does and what its scope is and where it fits in the hierarchy of oversight here in the government.

Dan Glad Sure. The term collusion strike force, which is a mouthful. So, I’ll call it the PCSF or the strike force. That is the Department of Justice’s coordinated national and inter-agency response to anti-trust crimes and other related fraud schemes that impact government procurement, grant, and program funding at all levels of government, federal, state, and local. And we’ve been around since late 2019. And our mission is really two pronged. One is to enhance deterrence, trying to stop these schemes before they happen. And we do that through education, outreach, and training to both federal agents who investigate these crimes and procurement officers at all levels who are in the position to spot them. And then when deterrence fails and deterrence fails, men are no angels. We look to amplify the detection, investigation, and prosecution of these schemes. I think you asked, Tom, sort of sort of like what we actually do. I’ll tell you what I call our lane. And it’s really we use all the tools in the statutory toolbox, all the parts of the Criminal Code to go after any criminal conduct that distorts, perverts, subverts the competitive procurement process. When the government is going out into the market to buy stuff.

Tom Temin And how do you find out about the fallen angels? Is it mostly whistleblowers?

Dan Glad Whistleblowers are certainly part of the mix. It’s really a combination. We certainly will have whistleblowers who come in and who spot something. The Antitrust Division, which is the part of the Department of Justice I come from, has a long-standing policy of its leniency policy, which is essentially become a cooperator. Tell us about the crimes that you did. And if you do fully cooperate, you’ll get a benefit. The public, we rely on the public to send us tips and leads, and we have a public facing website where members of the public can submit information. Our federal agents and investigators are well positioned to using either confidential sources or just the things they see to refer these matters to us. And then finally, I think I would be remiss if I didn’t mention the people who are really there the procurement officers, the contracting officers, the people in government whose day-to-day job is buying stuff. They are able to spot the indicators, the red flags of these collusive schemes and report them. They often know something’s wrong, even if they can’t put a term on it. And so that’s part of our outreach mission. And since we were founded, we’ve reached more than 31,000 government employees as part of this outreach. That’s 31,000 sets of eyes.

Tom Temin And since 2019, how busy has the strike force been? How many cases have you actually come together and gone after?

Dan Glad We’ve been busy. Since 2019, we’ve opened more than 100 criminal investigations. We have prosecuted to conviction. So, either at trial or through a guilty plea, more than 50 individuals and companies and of our public matter, some cases that are filed. This touches on more than $500 million of government spending. And I will say, I think it’s just the tip of the iceberg.

Tom Temin Well, that was my question. And by the way, we’re speaking with Dan Glad he is director of the Procurement Collusion Strike Force at the Justice Department and the Antitrust Division. I mean, the federal procurement system in the United States is in many ways the gold standard for the world. And most people that participate believe that it’s fundamentally honest. It’s not like India or Russia where bribery and corruption is the norm. Are we still in that place? And these are still exceptions because you say it occurs a lot. Collusion and so forth.

Dan Glad They are exceptions. Federal government procurement is fundamentally sound. The majority of federal government procurement is not a set and attacked by bid rigging, price fixing and fraud schemes. But I think about it in the way it’s the law of large numbers. There’s so much federal procurement that even a fractional loss is substantial. Tom, there’s one study I’m aware of from an international NGO called the organization for Economic Co-operation and Development, or the OECD. And what the OECD tried to do is assess how much money is lost from bid rigging, price fixing and other collusive schemes at the outset from government spending. They looked at all governments around the world, and their assessment is that it’s 20%, that there was a 20% collusion tax imposed by criminal conspiracies on government spending around the world, and the US is probably right there in the middle of that 20% number as a whole. I would say there are parts of the United States that may be higher. Tom, I mentioned before we started talking today that my hometown of Chicago and I worked as the assistant inspector general for the city of Chicago before coming to the Department of Justice. And I can say based on my experience, I think my hometown, though I love it, is likely overperforming that 20% number. There’s another way to think about it. There’s this great quote from a recent 11th Circuit case where the judge opened the opinion by saying, and this is a quote like bears to honey. White collar criminals are drawn to billion-dollar government programs. And that’s true. And I’ll tell you the last way I think about, and I’ve mentioned this because it’s very recent, the GAO, the Government Accountability Office just put out a report where they were trying to estimate they were trying to answer this question. Tom, what is the cost of fraud across the government? And they came up with a numerical figure that’s quite broad, 233 billion to 521 billion every year. And what really stuck with me was the way they contextualized it. They said that if fraud were a government agency, it would be the sixth largest government agency in the United States if there were a U.S. Department of Fraud.

Tom Temin All right. Well, we could probably discuss that philosophically for hours. Let’s get to the operation of the task force. You’ve added new members. Who are they? And what does it mean when a new members added what’s incumbent upon them?

Dan Glad Maybe I took a step back, Tom, and explain sort of our structure. Our strike force includes federal prosecutors. So that’s folks from the Antitrust Division, and we’re now up to 25 US attorney’s offices. So those are the federal prosecutors who sit in cities and districts around the country. We have 12 national law enforcement partners. So, it’s 11 offices of inspector general at the federal level and the FBI. And so, we work together on that two-prong mission set. I’m really happy that we recently welcomed another office of inspector general, the US Department of Commerce, that is now one of our national partners, as well as three new US attorney’s offices to our collective effort. And that’s the District of New Jersey, the District of Alaska, and the Eastern District of Louisiana, which is headquartered in New Orleans. And they will be joining our existing collective effort and also doing environmental scans and being on the lookout and thinking strategically about what’s happening in the commerce world and also in those geographies and on commerce. The U.S. Department of Commerce is embarking on some pretty significant spending. Its second largest spending program in the history of the department is the Bipartisan Infrastructure Law, its number one spot program of all time since its existence is the Chips act. And those are two very recent spending bills.

Tom Temin And by the way, do you also look at state and local level corruption when that happens? Because sometimes the states and the cities don’t have the resources the federal government has.

Dan Glad Absolutely. Some of the core antitrust offenses bid rigging, price fixing, market allocation, criminal monopolization, those are federal offenses wherever they occur at any point in the market, private and public and within the public, which is really where I focus my efforts and my thinking local, state and federal. And we do rely on and work with our partners at that local and state level to uncover, investigate and prosecute crimes that are going after their funding. Relatedly, so much of the funding that comes in to the local and state governments is in whole or in part coming from the federal government. So, the federal government has a very vested interest in making sure that the programs have integrity.

Tom Temin Sure. And just any recent cases that come to mind that kind of stand out for you?

Dan Glad Yeah. Tom, very recently in the month of May, we had a guilty plea in our Idaho fire investigation. There. We indicted two executives with fraud and rigging bids that were submitted to the US Forest service for contracts to provide critical supplies used to fight forest fires. And this was after an investigation that involved court authorized wiretaps. And earlier this month, one of those executives pleaded guilty. Now, what happened here, Thomas? For at least eight years, two executives who were supposed to be competing were not. They conspired to rig bids. They conspired to allocate territories. And this is offering a crucial service that helps U.S. government fight fires in the Rocky Mountain region. And over time, the conspiracy evolved. And they inspired these competitors or anything but competitors. These executives conspired to monopolize the market and they conspired to push other people out. And I’ll say Tom, the evidence here was just really compelling. The executives would text each other talking about how they were going to, quote, squeeze, drown, punch, or lowball their competitors. The wiretap evidence where our federal agents were able to listen in real time due to a court order to the conspirators talking. We were able to hear the executives, and this is all, as alleged in the indictment, conspire about their upcoming bids, about what they would tell the FBI agent. So, the FBI came knocking and how they would hide their conduct. And this really gets to sort of why we do what we do. The U.S. Forest Service relies on a fair bidding process to secure the best deal at the best price for taxpayers. And when people like these executives as allegedly indictment, collude rather than compete, they wronged the public. And more than that time, they are wrong honest competitors who play by the rules. And are doing things fair and square.

Tom Temin Finally, you mentioned that contracting officers, COs 1102s, and people in that function in the federal government are kind of eyes and ears on this. What would you say are the top three signals that a CO should be watching for? That might indicate something bad going on with a contract or an acquisition.

Dan Glad I think the first is any indicators in the contract, in the bid documents, in the contract and documents, any tells that competitors are anything but that two or more bidders are working together. And sometimes that can be the sloppiness that can result. Where you can see a classic example is the same typo. That is, it’s not proof positive, but it’s a lawyer would say it’s probative of a collusive conspiracy. The other thing I always tell contracting officers, and it sort of goes back to my thought that humans are pattern recognition machines. We can recognize patterns even if we can’t articulate it. If a contracting officer has this sense that they know who’s going to win before they, in the old days, open the envelopes with the bid. But today sort of go into the procurement platform to open the bids. I would ask a contracting officer sort of pause. And as they said in Star Wars, search your feelings, figure out what’s going on, why you have this inclination that someone’s going to win. Again, not proof positive, but these schemes are iterative. They are pattern. They happen over time. There’s no such thing Tom as a bid rigging Crime of passion. You have. Over time, when you are procurement professional, you’re invested, and you will have been able to spot that pattern. And the third thing is sort of look in the pricing, look at the information you have. If pricing is all going up lockstep that’s a red flag not proof positive but it’s a red flag. There may be an innocent explanation for it. If pricing is very, very close or it’s off by round numbers or round percentages, that can be an indicator of a collusive scheme bid rigging, price fixing, or some other kind of fraud.

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Agencies, once again, set new records almost across the board for contracting with small businesses in fiscal 2023. New data from the Small Business Administration shows agencies awarded an all-time high of 28.4% of all eligible federal contract dollars to small businesses.

At the same time, SBA’s new small business scorecard data shows agencies met or surpassed governmentwide goals in three of five socio-economic category, including service disabled veteran-owned small businesses.

In all, agencies awarded $178.6 billion to small businesses last year, which is an increase of $15.7 billion from 2022.  The governmentwide small business contracting goal is 23%.  House Small Business Committee lawmakers recently passed a bill to increase that goal to 25%.

FY23 Prime Contracting by Dollars and Percentages for All Categories*:

• In accordance with federal law, SBA provided double credit for prime contract awards in disaster areas that were awarded as a local area set aside. SBA also included in the calculation of government-wide achievements Department of Energy first-tier subcontracts required to be included by section 318 of the Consolidated Appropriations Act of 2014 (“CAA”), Public Law 113-76.

Overall, SBA says 10 agencies received “A+” grades and two others received “A” grades on the scorecard, including the SBA, the departments of Agriculture Housing and Urban Development, Interior, Homeland Security and Commerce as well as the National Science Foundation, the General Services Administration, the Nuclear Regulatory Commission and the Office of Personnel Management.

The White House and SBA recognized the small business contracting accomplishments during a roundtable today as well as during National Small Business Week, which kicked off yesterday.

As part of the 2023 scorecard, SBA also released contract data broken down by business owner race and ethnicity, which shows that businesses owned by historically underrepresented groups earned more through federal contracts across every category. Agencies awarded $76.2 billion to small disadvantaged businesses, the most ever, surpassing the Biden administration’s goal of 12%. The White House set a 15% goal for 2025.

“This represents the third consecutive year of record-breaking awards to SDBs under President Biden, and puts the administration on track to reach the President’s goal of increasing federal contracting dollars to SDBs by 50% by 2025,” the White House said in a fact sheet released today.

For example, African-American owned businesses received $10.2 billion in federal contracts in 2023, $800 million more than in 2022. Meanwhile, Hispanic-owned businesses saw their overall contract dollars increase by $943 million to $10.9 billion last year.

FY23 Federal Contracting Dollars to Minority-Owned Small Businesses:

In addition to beating the SDB goal, the SBA says agencies also exceeded the service-disabled veteran-owned small business goal of 3%. Agencies awarded $31.9 billion, or 5.07% of all contracts to these firms.

This also is first time agencies came close to meeting the goal for women-owned small business awards in several years, missing out by less than 1%, while still awarding $30.9 billion to these companies.

Along with prime contracts, agencies exceeded their goals in making sure small businesses received subcontracts. SBA says 33.34% of all subcontract dollars went to small companies, more than 2% above the goal for a total of $86.4 billion.

Unlike with prime contracts, agencies missed all socioeconomic goals under subcontracting except for women-owned small businesses. The women-owned small business goal was 5% and agencies achieved 5.65%, while missing out on the SDB, HUBZone and service-disabled veteran-owned small business goals.

This latest scorecard comes when House and Senate lawmakers are pushing SBA to hold agencies more accountable for small business contracting. Sen. Joni Ernst (R-Iowa), ranking member of the Small Business and Entrepreneurship Committee, introduced the Accountability and Clarity in Contracts to Engage Small Suppliers and Small Businesses (ACCESS) Act last September to revamp the goaling structure.

House Small Business Committee lawmakers also passed several bills earlier this month to address long-standing concerns like making sure agencies use plain language when writing contracts and bring more transparency to decisions when agencies cancel small business contracts.

The post Agencies set records for small business contracting in 2023 first appeared on Federal News Network.

The General Services Administration is putting the final touches on its solicitation for the Alliant 3 IT services contract.

But one of the sections that GSA is already finished with is a new approach to attracting small businesses with new or emerging technology capabilities.

Large businesses can get started today on meeting the requirements of GSA’s small business emerging technology solutions engagement requirements under Alliant 3 contract.

Paul Bowen, the director of the center for GWAC programs at GSA, said this evaluation factor is among the first of its kind.

“There’s an opportunity for an ‘other than small business’ offeror to engage with small businesses that have eligible emerging technology solutions in any of these 11 areas. So if I’m an other than small business company, I have the opportunity to go out and interact with up to five small businesses that have emerging technology solutions, meet with them, have them sign a form that shows that we met, we had an engagement and that we spoke,” Bowen said at an event sponsored by ACT-IAC on Friday. “The small business has to provide the proof that they have the eligible product, and then when the other than small business submits it to GSA. The other than small business would receive 200 points for each of the five engagements up to a total maximum of 1,000 points.”

As part of the draft solicitation for Alliant 3 issued last December, GSA detailed this new approach to hold large businesses accountable for learning about small businesses in specific emerging technology areas. The 11 areas included such as big data, cloud, cyber, AI, zero trust and quantum computing.

GSA highlights 11 emerging tech areas

What the small business emerging technology solutions engagement requires is for large businesses to meet with at least five small businesses who work in one of these 11 areas. The 11 emerging tech areas came from work GSA’s IT Category office has been and continues to do.

Bowen said GSA isn’t being prescriptive about how the engagements work or what may or may not come from them.

“GSA does not dictate how these meetings are set up, how long they last, the terms of them. It’s entirely for you to all figure out how you want to do it and to come to terms with each other, whether it’s a phone call, whether it’s a meeting, whether it’s a demonstration, however you work it out, you work it out,” he said. “There’s no expectation that you will have done business in the past. Nor is does it create an obligation in GSA’s eyes that you’ll do business together in the future. It’s a way to match make.”

GSA, however, put some parameters on the size of the emerging small businesses. The firm has to have done at least $100,000 worth of business or being a part of the Small Business Innovation Research or Small Business Technology Transfer (SBIR/STTR) programs.

Under the terms of the program, the large business may only get credit for meeting with a different small business for all five engagements and can’t meet with small businesses in any of the 11 categories like cyber or AI more than twice. Bowen said that means if large company X meets with two different AI companies, then they have to pick three other emerging technology areas like cloud or health IT for their other meetings.

Matchmaking made easier

Small firms bidding on Alliant 3 do not have to participate in this part of the evaluation. GSA says they would receive the 1,000 points automatically.

Bowen said GSA’s decision to take this approach made sense for several reasons.

First, it just made sense to make small business matchmaking part of the evaluation factor just made sense.

“We know that small businesses have really been leaders in emerging technology, which is such a focus for everyone, including the government. For us to have an evaluated factor where other than small business offers on Alliant 3 have a scored element where they can go out and meet with small businesses with emerging technology solutions is a win-win for everyone,” Bowen said. “It’s a win-win for the small businesses with the emerging technology because they have the ability to go meet with these companies where previously may have been difficult to get in the door. It’s a win for the other than small business offers because they get to learn about these technologies. They demonstrate to the government that they have the ability to go out and find small businesses with emerging technology because so much of the emerging technology is being done to almost the garage level and above at this point.”

Bowen said this approach also gives the small businesses some leverage with the large firms in terms of getting meetings and explaining their technologies and value.

In addition to this 1,000 point evaluation factor, Bowen said GSA also will hold vendors accountable for meeting their subcontracting goals as part of the contract.

GSA expects to issue the final solicitation for Alliant 3 toward the end of May or early June.

One big change to the Alliant 3 is the number of awards GSA is expecting to make. Bowen said GSA is targeting about 76 awards, which is up from the 60 awards it made under Alliant 2 back in 2018.

One reason GSA is looking to make a larger number of awards is the number of contractors who ended up leaving Alliant 2. GSA started with 60 awards and has lost 22 over the last six years. Of those 22, 11 were lost to mergers and acquisitions and another 11 to the companies “volunteered” to leave the contract as they were not meeting specific bidding and winning requirements.

There now are 38 vendors under Alliant 2 and GSA expects the larger number of awardees to provide better and more competition.

Alliant 2 remains a popular contract among agencies, adding a lot of focus and excitement on Alliant 3.

GSA data shows agencies obligated more than $8.6 billion across 117 task orders in 2022. Since GSA awarded Alliant 2 in 2018, agencies have obligated more than $26 billion.

The popularity of Alliant 2 caused GSA in August 2022 to increase the ceiling of Alliant 2 to $75 billion from $50 billion because it saw the increasing spending trends.

Over the last four or so years, Alliant 2 has been a go-to contract for many of the major and high dollar programs agencies have pursued. The average task order under Alliant 2 is around $120 million.

Industry and GSA expects Alliant 3 will be just as popular with spending continuing to increase.

The post GSA’s new approach to small business matchmaking first appeared on Federal News Network.

• A major contractor for the Veterans Affairs Department is getting acquired. Cognosante, a provider of digital transformation and cloud modernization services, will merge into Accenture Federal Services. Cognosante won more than $300 million in federal prime contracts the last two years, with its largest customers being the VA and the Centers for Medicare and Medicaid Services. Cognosante holds spots on several governmentwide contracts including CIO-SP3, OASIS and Alliant 2. Accenture Federal Services did not disclose the terms of the deal.
  (Accenture Federal Services to buy IT services firm - Businesswire)
• The Energy Department is making it easier for employees to test out artificial intelligence tools, with its new AI discovery zone, which aims to let its employees explore large language models and generative artificial intelligence tools in a safe environment. The sandbox gives DOE AI researchers and developers a platform to experiment with Google and other generative AI tools using public data. One prototype that DOE is developing would make it easier for grantees to search for and determine if they are eligible for specific agency grant opportunities. The Energy Department is also running an intra-agency working group to develop best practices and a reference guide for safely using GenAI across the department.
  (Energy’s giving employee safe space to discover AI - ATARC)
• U.S. Cyber Command is growing its acquisition program. CYBERCOM is adding 50 billets to its acquisition workforce this year. The command started with just 10 billets in 2017, but now has slowly built up its acquisition programs as Congress has granted it new buying authorities. The command has more responsibility to procure the cyber weapons and services relied upon by its Cyber Mission Force. CYBERCOM is training its growing workforce on non-traditional acquisition tools, such as DoD’s software acquisition pathway.
  (CYBERCOM embraces the non-traditional as acquisition program grows - Federal News Network )
• Senate plans to find a permanent home for pandemic-fraud fighting tools are getting support in the House. House Oversight and Accountability Committee Ranking Member Jamie Raskin (D-Md.) introduced the Government Spending Oversight Committee Act. The bill would preserve data analytics tools used by the Pandemic Response Accountability Committee (PRAC) and would redeploy them to uncover more fraud in federal spending. Those tools have helped agency watchdogs uncover nearly $2 billion in pandemic-era fraud. But those tools are currently scheduled to go away when the PRAC disbands in September 2025. This is the House version of a bill that passed out of the Senate Homeland Security and Governmental Affairs Committee last week.
  (White House-backed bill to preserve pandemic fraud analytics tools introduced in House - Federal News Network)
• Lawmakers are pushing for more access to specialty services in the military’s health care system. Right now, appointments for specialties like physical therapy, nutrition and optometry can take weeks. A special House panel on quality of life in the military said DoD needs to make those services available without a referral. Those recommendations are among dozens of others the committee has teed up for inclusion in the 2025 Defense authorization bill.
  (Lawmakers push for military health care expansion - House Armed Services Committee)
• There is a new official in charge of building out technologies that underpin the background investigation system. The Defense Counterintelligence and Security Agency has named Edward Lane as program executive officer. He will oversee key programs, including the National Background Investigation Services. That effort aims to modernize and integrate background investigation technologies into one unified system. Lane previously served as deputy senior acquisition executive at the Defense Intelligence Agency.
  (DCSA names next program executive officer - DCSA)
• The IRS hit its goal for the number of taxpayers who used a new option to file their taxes online. And they filed for free. Provided this year by the IRS, more than 100,000 taxpayers used the Direct File platform to file their federal tax returns, meeting the agency’s target for users. About 50,000 of those taxpayers filed their returns during the final week of the filling season. The IRS invited taxpayers in 12 states to test out the Direct File pilot program this year. The agency is reviewing user feedback to see if it should scale up the program next year.
  ( - Treasury Department)
• Congress wants to expand a pilot program to provide fellowship opportunities for military spouses. The program, facilitated through the Chamber of Commerce Foundation’s Hiring Our Hero program, has proved to be successful since its inception in 2022, so Congress wants to make it a permanent program. In 2023, over 400 fellows participated in the program, with nearly all of them landing permanent jobs with annual salaries of $65,000 and above. Lawmakers said their recommendation to make the program permanent will be included in the 2025 defense policy bill.
  (Lawmakers want to expand the military spouse career accelerator program - House Armed Services Committee)

The post Accenture Federal Services acquires major federal contractor first appeared on Federal News Network.

The Air Force is out with a new multiple award solicitation to modernize all of its base network infrastructure.

The request for proposals uses the phrase, “enterprise IT-as-a-service” only a handful of times, but for all intent and purposes, this potentially 10-year contract with a $12.5 billion ceiling is considered Wave 2.

The new RFP calls for a group of large and small businesses to “modernize, operate and maintain the network infrastructure on all Department of the Air Force locations, to include Guard and Reserve bases.”

The Air Force is planning to award at least five contracts to 8(a) firms as well as a minimum of three awards to HUBZone companies, women-owned small businesses, service-disabled veteran-owned small business firms and other small businesses not in a socioeconomic program.

“This effort takes lessons learned from the EITaaS risk reduction effort network-as-a-service effort as well as lessons learned from existing base IT infrastructure modernization efforts to modernize the future base area network (BAN) offering at Air Force bases worldwide,” the RFP states. “This effort intends to modernize the Non-Secure Internet Protocol Router (NIPR) and Secure Internet Protocol Router (SIPR) BAN through an as-a-service model utilizing contractor provided networking services.”

The Air Force says its goal through the BIM vehicle is to obtain standardized, innovative and agile IT services, increase integration through a modern streamlined network and to be an investment for future mission sets.

Air Force to reduce data centers

Winston Beauchamp, the deputy chief information officer at the Air Force, said the goal is to award the multiple award contract later this spring with the first set of task orders going out before the end of the fiscal year.

Beauchamp said the Wave 2 EITaaS RFP comes as the Wave 1 effort is picking up steam.

“They started by essentially absorbing the bases that were part of our risk reduction experiment originally, that preceded the acquisition, and they are right now delivering common central services that will be applicable to all bases,” Beauchamp said in an interview with Federal News Network after speaking at the AFCEA NOVA Space IT day. “We’re talking about things like a centralized helpdesk automation so that folks can do certain things on their own, like resetting passwords, and answering tier zero help desk type questions. Then also to come there’s field services. The option for folks to use our contract to put people in the field to support them at the bases of all that for centralized security and help desk services.”

The Air Force is using the base infrastructure modernization contract as a key piece to its centralization strategy. Beauchamp said not every IT service needs to be an enterprise service, but there are a wide variety of opportunities for the Air Force to improve how it delivers technology to its users.

For example, across the 185 Air Force and Space Force bases there are about 1,000 data centers running.

Beauchamp said the CIO’s office is making a big push to move applications to the cloud, where it makes sense.

“We fully expect that more and more applications will be moving into our cloud architecture. That’s called CloudOne today, and that contract is up for renewal. It will be re competed, and it will be calling it CloudOne Next, but the intent is that it will be just the next evolution of the CloudOne program,” he said. “The interface between that and the Joint Warfighting Cloud Capability (JWCC) our intent to leverage that contract to the maximum extent possible by buying cloud services capacity through JWCC, and then managing it under the CloudOne contract. The expectation is that we would continue to acquire cloud through JWCC, where it’s cost effective to do so in bulk and then we would provision it with security services that DevSecOps and the other layers of services that we’ve built up over the years on the under the CloudOne contract.”

Three cloud contracts in the works

The Air Force released its request for information for CloudOne Next in September and just in March, it offered more details on its acquisition strategy.

The Air Force expects to release three solicitations for CloudOne Next in the third quarter of 2024 and make the award in the fourth quarter of this year. It will be three single-award blanket purchase agreements on top of the schedules program run by the General Services Administration.

The three BPAs will focus on:

• Cloud service provider (CSP) reseller and software management
• Architecture and common shared services
• Enterprise application modernization and migration

Beauchamp said the Air Force is evolving from siloes of excellence where every system built its own technology stack to a series of enterprise capabilities where the burden to sustain, modernize and secure is shared.

“We really have is an opportunity to look at the degree to which there may be commonality between those approaches, either in factor or in potential, and where we can either use collective buying strategies to reduce the overall cost collective across the Air Force and collectively across DOD, to get the best possible deal through economies of scale,” he said. “If there’s an architectural approach that perhaps could leverage an existing enterprise service, we want to make sure that we have the ability to see them and to make those recommendations to really free up the time and resources so that those dollars can be applied towards more effective mission capability.”

This approach to IT portfolio management is one of the six lines of effort Air Force CIO Venice Goodwine outlined in her strategy.

Other lines of effort include the acceleration of cloud adoption, the future of cybersecurity, including zero trust, workforce development and training, software management and data and artificial intelligence.

Beauchamp said IT portfolio management, or line of effort 4, is one of the most exciting opportunities for the Air Force. He said IT portfolio management can create leverage across the entire department that can result in both savings and money redirected toward mission needs.

“Overall, I think that each of the sub objectives within line of effort four are going to contribute in some way in that direction. Everything from implementing a capital planning and investment control (CPIC) approach within the Department of Air Force, which we are piloting this year, to improving our monitoring of the user’s experience, which really enables us to target our modernization efforts on those areas where folks are suffering the most will allow us to make better use of the resources that we have for free enterprise IT,” he said. “One of the things we’re going to have to do is really reexamine how we’re implementing CPIC. When I say the pilot, what we’ve done is we’ve selected a major command and a couple of functional areas, where we’re going to put a more rigorous capability in place to really meet not just the letter of the law, but the spirit as well, and apply the data to actually make business decisions. That’s the key. If you if you’re going to go to the trouble of collecting all this data about your programs, you might as well use that data for informing your decision making.”

The post Air Force begins phase 2 of enterprise IT service delivery first appeared on Federal News Network.

GSA is expanding the number of providers from three to eight, including six new ones.

Along with current platform providers Amazon Business and Fisher Scientific, GSA awarded spots on the next generation Commercial Platform Initiative (CPI) contract to:

• e-Procurement Services
• Grainger
• Noble Supply & Logistics
• Pacific Ink
• Social Glass
• Staples

Four of the awardees, ePS, Noble Supply, Pacific Ink and Social Glass, are small businesses, opening the door for agencies to obtain small business credit for these small dollar buys.

“This is about meeting our customers where they are with a modernized user experience and streamlined process for government purchase cardholders,” said Tom Howder, the acting Federal Acquisition Service commissioner, in a release.

GSA created the CPI program under a proof-of-concept moniker with awards to Amazon, Fischer and Overstock Government in 2020 under direction from Congress with a goal of capturing data on and managing products under the micro purchase threshold of $10,000. Initially, GSA thought the market was about $6 billion, but came down in the last few years to the potential market being about $500 million.

Overstock Government decided not to bid on the next generation platform, sources say.

Lawmakers detailed its desire for GSA to pilot online commercial platforms in Section 846 of the 2018 Defense Authorization bill. The House Armed Services Committee’s initial goal was to make federal procurement less complex and more competitive through the use of commercial platforms.

“GSA’s announcement of eight contracts awards for the commercial platform initiative represents the passing of a significant milepost on its journey to bring enhanced electronic commerce to agencies,” said Roger Waldron, president of the Coalition for Government Procurement, in an email to Federal News Network. “Collectively, these contracts represent a streamlined channel through which agencies can acquire commercial off the shelf products quickly. They also put competitive pressure on the Schedules program to improve its administrative efficiency, which is a positive result that will help buyers and sellers in the market.”

The awards come at more and more agencies are using the initial three platforms, though data shows Amazon Business received the vast majority of the orders, accounting for 96% of all orders in fiscal 2022, according to an August 2023 report from the Government Accountability Office.

GSA says for 2023, 34 agencies spent $80 million, which is double the amount of money spent in 2022.

GSA also says total orders also increased to 305,000 from 105,000 in 2022, and 52% of all users were repeat buyers and agencies spent on average between $250-$350.

“This is a pivotal turning point in the Commercial Platforms Program as we expand the number of platforms available, including a number of small business awardees,” said Keil Todd, the Commercial Platforms program manager, in the release. “We’re excited to move out on the next-generation of this program to further our commitment to agencies in helping them get the products they need to support their missions.”

With the additional companies GSA is adding, agencies have access to buy from well-known diverse companies like Amazon Business, Fischer Scientific, Staples and Grainger that provide a large variety of products, but from the four small companies.

Noble Supply, for instance, provides the Defense Department with access to products from 13,000 companies.  Pacific Ink offers office supplies and Social Glass provides access to small purchases across 50,000 products. And ePS  filed a protest of the solicitation in December only to gain corrective action and win an award.  ePS is a platform providing access to small business suppliers.

“We are looking forward to assisting GSA in meeting the goals of the Commercial Platform program. This award allows us to bring other federal agencies the benefits that federal buyers are currently experiencing within the e-Procurement Services (ePS)  Army and Air Force eMarketplace programs,” said David Saroli, CEO of e-Procurement Services (ePS), in an email to Federal News Network. “Being part of the Commercial Platform program will also help increase the growth our small business suppliers are currently experiencing through the Army and Air Force ePS e-marketplaces.”

The journey to this award, and it’s unclear if GSA has crossed the finish line given several unknown factors like how many bidders there were and if any that were unsuccessful would file a protest, was not an easy one. GSA took heat for initially overlooking, or ignoring, the requirement to comply with the Javits-Wagner-O’Day (JWOD) Act. The 1938 law mandates the AbilityOne Commission publish a procurement list that identifies commodities and services that the commission has determined are suitable to be furnished to the government by companies who employ people with disabilities. Agencies must buy these specific products and services unless there are specific circumstances that require exceptions.

GSA ended up fixing the solicitation to satisfy the protestors’ concerns.

The post GSA’s commercial platforms program to grow by five providers first appeared on Federal News Network.

An employee at the Federal Acquisition Service in the General Services Administration suggested using modern technology like 3D scanners to improve the maps of federal buildings to benefit emergency responders and others.

And two federal employees at the departments of Veterans Affairs and Commerce’s Census Bureau submitted an idea to translate ethical artificial intelligence principles into technical steps by developing processes to assess AI at every level, from inception to development, production and continuous performance evaluation.

These are just three of the 16 ideas from 10 agencies that GSA’s 10x program is considering for possible funding in 2024.

“Our fiscal 2024 investment priorities centered on ideas for reimagining public engagement and promoting equity in delivery. We also emphasized ‘Moonshot’ ideas: the biggest, boldest and most ambitious ideas to transform digital public services,” GSA wrote about 10x in a new blog post. “This round, ideas for artificial intelligence projects emerged as a standout category. Nearly one fifth of all the submissions we received were related to AI.”

GSA launched the 10x program in 2015, and it is now part of the Technology Transformation Service, as a venture studio where they ask federal employees to send ideas and then makes small investments with the goal of improving federal digital experiences.

GSA 10x to begin analysis

For the 2024 funding opportunity, 10x received almost 200 ideas from more than a dozen agencies. Along with AI, other topics included accessibility technology, public-to-agency communications and improving data sharing.

10x now will move these 16 projects into phase one of the program where cross-functional teams of technologists will try to answer the simple question, “Is there a there there?”

“They investigate the problem, get a sense of how and if this idea could impact the public, and explore whether a technology solution is possible,” GSA wrote. “We use the phase one findings to guide our investment decisions as we decide whether or not to move a project into subsequent phases.”

In a phase two, the 10x team analyzes the idea to decide if it’s ultimately a technology problem or not. If it’s more of a people, policy or funding challenge, 10x will not invest more resources in developing a product or service.

In phase three, the 10x team makes sure the solution integrates with the agency partner’s existing priorities and technology capabilities. The team is reviewing workflow processes and how the agency can continue to sustain and support the technology. Most 10x projects end after Phase 3, when the product is handed off to its agency product owner.

Then in phase four, 10x and the agency sponsor look to scale the technology to support different use cases across agencies and programs that drive the biggest impact with an ultimate goal of transforming digital services for the public.

10x says most ideas never make it to phase 2. For instance in 2022, of the 25 ideas that made it to phase one, only seven received funding for phase two. Additionally, 10x says fewer ideas actually make it to phase three and four where the team scales the solution to the public.

The notify.gov project is an example of a 10x funded program that made it to phase four.

Another example is the site scanning platform that offers real-time intelligence to help agencies improve website performance and compliance with government mandates by providing web managers with a customizable, automated scanning service.

The post GSA’s 10x to take deeper look at 16 ideas submitted by feds first appeared on Federal News Network.

When it comes to blue collar wages, a different standard seems to apply to federal agencies and to contractors. Two standards appear to apply when it comes to Trade Agreement Act Compliance. What’s going on? For on view, the Federal Drive with Tom Temin spoke with federal sales and marketing consultant Larry Allen.

Interview Transcript: 

Tom Temin You are pointing to a Gao report and some other activities of the government which show that sometimes they don’t follow the rules agencies when paying things directly, that they expect contractors to follow. Tell us more.

Larry Allen A time that’s right. I think the bottom line is contractors need to always remember exactly where it is they stand when they’re doing government business, and that places at the bottom of the ladder. Even if you’ve got people working side by side in a government agency. The only real difference being the type of bad contractors need to understand that a different set of rules apply to them. That’s come out quite clearly recently. As you alluded to, the Government Accountability Office came out with a report recently saying 75% of federal agencies pay their hourly wage workers incorrectly, while some agencies pay more than the prevailing wage, a number of the pay less. And that was kind of the end of the GAO report. By contrast, if a contractor had been found to not be paying prevailing wage rates either under the Services Contract Act or in construction via Davis-bacon, they would have been really taken to the compliance woodshed. And that’s just a very much a double standard. Contractors need to be aware of that issue, and contractors can spend a lot of money, hundreds of thousands of dollars for larger companies every year, ensuring that they stay in compliance with labor and wage rate requirements. It’s a whole thriving legal practice in and around the Beltway, too. Then the second part of it was the trade agreements that we read recently about the General Services Administration CIO getting taken to the congressional woodshed for his agency’s failure to do all the due diligence it should have done around the Trade Agreements Act. By and while getting taken to the congressional woodshed is never pleasant. It pales in comparison to the sometimes years long, 7 or 8 figure defenses that contractors have to put up when they are accused of Trade agreements act wrongdoing. That’s the second issue, and I’m just using these two issues to highlight the fact that contractors, again, they need to understand where they are. They can be scapegoated. They can have fingers pointed at them, even when things may not entirely be their fault, it’s easier to blame the contractor. So, you just have to be smart about how you’re approaching government business. Understand that there’s sometimes can be two standards. As I often told my teenage children, life isn’t fair.

Tom Temin That’s right.

Larry Allen I think you just have to remember that you.

Tom Temin Can’t win by saying to the government, well, you only paid those people less than the federal minimum wage or less than the Missouri or Michigan or whatever. It is minimum wage. But that’s not going to help you in federal government.

Larry Allen So a little bit like the parents of the teenagers in this case, Tom, it’s definitely do as I say, not as I do.

Tom Temin Right. In the Trade Agreement Act. By the way, the GSA incident that you mentioned concerns the acquisition of Chinese made conference room cameras, where presumably China has the potential to listen in on what’s going on in federal conference rooms because of that little cute camera sitting in the middle of the table.

Larry Allen If the Chinese are having trouble staying up at night, I recommend that they listen in on a lot of GSA conference calls.

Tom Temin We’re speaking with Larry Allen. He’s president of Allen Federal Business Partners. And let’s talk about the appropriations bills that are now law. And we are into the second half, almost of the of the federal fiscal year. And there’s actually appropriations for 2024. The numbers are good for contractors.

Larry Allen Tom. They are good for contractors, particularly if you’re selling to the Department of Defense or the Department of Homeland Security. Both of those agencies received funding increases over what the president had originally requested in his FY 24 budget request, particularly in the Department of Defense. You’re going to see things for all kinds of weapons programs, for research to maintain the U.S. technological edge across the board. In DHS, a lot of that funding is going to go to the southern border. And while a lot of it’s going to go to higher personnel, it’s also going to go to technology that the personnel can use in the conduct of their mission. So those are two good opportunities. And really what we’re talking about here is, you know, essentially by the time each individual office gets its numbers, spending number, we’re talking about five months left in the procurement. Cycle for this year. So just to modify a phrase, it’s very much, ladies and gentlemen, start your engines.

Tom Temin Yeah that’s right, because it takes a few weeks for the moneys to get deposited in the accounts.

Larry Allen What happens now is the Office of Management and Budget takes all the appropriated money. They pass it out to a certain degree for each agency. Give that back to the finance people in each agency, and then the agency further subdivides it to get into individual spending accounts. It’s a process that usually takes 4 to 6 weeks, depending on the agency.

Tom Temin Yeah. So that puts us into or puts federal contractors and buyers into what, May before they can actually.

Larry Allen That’s right. So, if you were planning on taking that spring vacation, think again. Bloomberg government recently reported that the sustained delay in implementing appropriations resulted in a 40% decline in government business. That’s a lot of business that’s going to have to be made up between now and September 30th.

Tom Temin What’s your best advice for contractors? I mean, they’ve got to somehow get the government to focus on spending and focus on letting these contracts, because the money is not multi-year money. So, it’s either spend it or lose it for a lot of these dollars in the in the 5 or 4 and a half months, it’ll remain when the government can actually do something.

Larry Allen Indeed. So, Tom, and I think one of the main things that contractors can do now is make sure you’re ready with a fast and reliable acquisition method that you can recommend to your government buyer. While some government agencies do have preferred acquisition methods, others are going to be looking for ways to get money obligated. That’s the key word. Get that money obligated by midnight, September 30th. And if you’re a contractor and you’ve got a couple of good fast options, whether it’s one of the many government wide acquisition contracts like GSA is a line three, or whether it’s, socioeconomic status like AA sole source, whatever it is that you’ve got that you can recommend as a fast and efficient way to get that agency to commit the money, you’re going to be that much of a better partner.

Tom Temin It also points to the fact of the need for being on the right contract vehicles for task orders because that’s the most efficient route from the government standpoint. And so, it really underscores the importance that you got to be able to have vehicles.

Larry Allen Well, right. And Bloomberg government recently came out with a report on that as well, talking about the use of best-in-class contracts. And while a lot of these are in the information technology world, Tom, there are also plenty of big spending that happens in the professional service, logistics, transportation worlds as well. So, agencies, more and more particularly civilian agencies are looking to these best in class, short name big contracts to do acquisitions. And what you find is that successful government contractors have 2 or 3, sometimes more, of these vehicles that make it easier for agencies to do business with them. And while there could be some grumbling among contractors about which type of contract gets a best-in-class designation, the fact is that agencies often view that as a symbol, that it’s a gold star type of program, that you can use, that nobody’s going to second guess you about.

Tom Temin All right. So, some work to do, basically.

Larry Allen Lots of work to do in a very short period of time to do it in.

The post Contractors wonder which of two procurement systems applies to them first appeared on Federal News Network.

The Defense Department uses the metric known as procurement administrative lead time, or PALT, to measure the time between the date an initial solicitation for a contract goes out and the date a contract is awarded.

A government watchdog agency said that while there have been improvements in contracting processes since DoD began collecting data to measure PALT in 2018, the award lead times vary depending on total contract value, contracting approach, contract type, extent of competition and the type of product or service procured.

For example, the award time on orders valued over $50 million increased by 70 days in the last four years.

The Government Accountability Office found that the median DoD-wide award lead times decreased by more than 20%, from 41 days in 2019 to 32 days in 2022.

DoD-wide median lead time by contracting approach:

• Definitive contracts: 97 days
• Indefinite delivery contracts: 179 days
• Orders: 21 days 

Median order award times are generally shorter across the service branches, while definitive and indefinite delivery contracts take significantly longer to award. For example, the Navy takes 132 days to award a definitive contract and 185 days to award indefinite delivery contracts.

In some instances, it takes under a day to place an order since those can be fulfilled through an indefinite delivery contract awarded to one vendor where all terms and conditions are already established.

For example, the Defense Logistics agency awards many orders for commercial goods, services and  supply items on existing indefinite delivery contracts, often with the help of automation, which allows the agency to process the awards in under one day.

“Over 85% of all definitive contracts awarded and over 90% of all orders issued by DoD from fiscal years 2019 through 2022 were below $10 million in value and had shorter median PALT timeframes. PALT values, both DoD-wide and within selected components, were generally longer for the award of definitive contracts and orders with larger total contract values,” the report stated.

The Army and Navy contracting processes decreased by 13% and 12%, respectively, while the median award times remained the same for the Air Force and the Defense Logistics Agency.

Additionally, the award times decreased for competed contracts but remained the same for sole-source contracts or those awarded through other non-competitive methods.

For example, the Army takes 247 days to award a contract within the research and development category, but it takes 102 days for the Navy and 131 days for the Air Force to award a contract within the research and development category.

For comparison, the Army takes 69 days to award a contract within the electronic and communication equipment category, while it takes 55 days for the Navy and 42 days for the Air Force to award a contract within the same category.

Generally, the service branches have adopted strategies to monitor award times. 

The Naval Sea Systems Command categorizes its contract awards by competed and non-competed contracts and then sets its goals. 

For example, the command’s goal for sole source procurements is not to exceed 210 days, while competitive procurements cannot to exceed 240 days.

The Army categorizes contract awards into four groups and assigns award-time estimate to each group by dollar value and contracting approach.

For example, for $100 million to $250 million contracts, the award times range from 80 days for orders placed on an existing indefinite delivery contract awarded to one vendor to 270 days for awards of new contracts.

But DoD doesn’t have department-wide visibility and understanding of the award times. And the DoD’s PALT tracker has shown to be of  limited use because of its incomplete data.

Additionally, the military services don’t find the PALT tracker useful and “reported that it is burdensome and duplicative of other systems they use.”

“Given these different perspectives, DoD would benefit from engaging with the components to determine if the PALT Tracker is needed to enhance DoD’s visibility into PALT changes for higher-dollar value contracts,” the report stated.

The post DoD award lead times increased for higher value contracts first appeared on Federal News Network.

• The Defense Department will receive $18.7 billion for military construction and family housing initiatives for fiscal 2024. The six-bill spending package passed by the House yesterday, includes funding for 300 military construction and housing projects. The 2024 Military Construction-VA bill provides $662 million to build over a dozen barracks, with roughly $320 million going toward revitalizing five privatized housing projects. The legislation also includes $2.5 billion for shipyard infrastructure optimization plan projects.
  (Defense Department will receive $18.7 billion for military construction projects - Senate Appropriations Committee)
• The Environmental Protection Agency (EPA), the FBI and the Bureau of Tobacco, Alcohol, Firearms and Explosives (ATF) are among the agencies that will likely have to deal with less money for the rest of the fiscal year. In the House version of the minibus package of appropriations bills passed yesterday, the EPA is getting 10% less funding than last year, while the ATF will be down 7%. The FBI is facing a 6% reduction. The Senate is expected to take up the package of bills before the continuing resolution expires on Friday night.
  (House passes $460 billion package of spending bills. Senate expected to act before shutdown deadline - Federal News Network)
• Two agencies will be looking for new technology leaders in the coming months. The Education Department is in need of a new chief information officer. The Homeland Security Department will have to fill its chief information security officer role this spring. Federal News Network has confirmed Luis Lopez, the Education Department CIO since December 2022, is leaving on March 22. He will take a job in the private sector. Meanwhile, DHS CISO Ken Bible is retiring after 39 years of federal service. His last day is March 29. Bible has been with DHS since January 2021, coming over from the Marine Corps.
  (Education, DHS among agencies seeking new technology leaders - Federal News Network)
• Pretty soon, there may be lots more apprenticeship opportunities in government. An executive order President Biden signed Wednesday tells federal agencies to take better advantage of the Labor Department's registered apprenticeship program. Agencies have spent years trying to shift away from college degree requirements for federal jobs. Now the Biden administration said offering more federal apprenticeships should get those skills-based hiring efforts further off the ground. The order encourages agencies to eventually turn apprentices into full-time federal employees. As another new requirement from the order, agencies will now create labor-management forums, if they do not already have them. The forums are meant to help federal unions and agency managers address employee concerns more easily and before they escalate.
  (White House presses agencies to use apprenticeships for skills-based hiring - Federal News Network)
• The Department of Veterans Affairs said it plans to hire-and-market jobs to military spouses. VA is leading a public-private partnership to adopt employment policies, such as telework and job transferability, that benefit military families. The VA said it is a leading employer of military spouses and offers jobs that travel with them, whenever their spouse has a change of station. The VA also allows military spouses to telework overseas and to hold federal jobs stationed in the US. The department is rolling out these efforts as part of an executive order President Joe Biden signed last summer to address a more than 20% unemployment rate among military spouses.
  (VA makes historic commitments to hire and support military spouses - Veterans Affairs)
• Do agencies need new hiring tools to address steep increases in Freedom of Information Act requests? Agencies are struggling to retain FOIA staff and hire new employees to deal with their increasing FOIA backlogs, according to a draft report from the FOIA Advisory Committee. The report found more than half of all FOIA professionals across government consider staffing to be their greatest need. The draft report would recommend that the Office of Personnel Management give agencies direct hire authority for FOIA positions. The committee is expected to vote on the final report in April.
  (With FOIA backlogs on the rise, do agencies need direct-hire authority? - Federal News Network)
• The expert panel Congress chartered to give DoD's Cold War-era budgeting system a tune-up has a lot of ideas. The Commission on Planning, Programming Budgeting and Execution (PPBE) delivered its final report yesterday, after two years of study and hundreds of interviews. All told, there are 28 recommendations that DoD and Congress will need to implement over the next three-to-five years, but the key idea is to replace the slow PPBE process with a more modern one called the "Defense Resourcing System." Read more about the recommendations at Federalnewsnetwork.com.
  (Long-awaited report would replace DoD’s PPBE process with ‘Defense Resourcing System’ - Federal News Network)
• The Government Publishing Office (GPO) has a new senior leader to manage the agency's workforce and human resources office. The agency announced on Wednesday that Beth Shearer will step in as GPO's chief human capital officer (CHCO). Shearer has held various human capital roles over the last two decades, many of which were at GPO. As CHCO, Shearer will be in charge of agency employee policies and human capital initiatives.
  (GPO director names chief human capital officer - Government Publishing Office)
• A new report from the Congressional Budget Office finds that the basic allowance for housing (BAH) for military personnel is higher than what civilians pay for rent and utilities. On average, the BAH rate for E-5 personnel with dependents is about 47% higher than the median rents paid by civilians with similar age and education profiles. The difference narrows to about 20% for civilians with income similar to E-5 personnel. Those service members are usually between the ages of 23 and 28 and hold the rank of sergeant in the Army, Marine Corps and Air Force, and second-class petty officer in the Navy and Coast Guard.
  (BAH rate for military personnel is higher than 'civilians' rent - CBO)
• Federal employees would have to disclose any royalty payments they receive in carrying out their official duties under a new bill advancing in the Senate. The Homeland Security and Governmental Affairs Committee voted 12 to 0 to approve the Royalty Transparency Act on Wednesday. The legislation would also require members of federal advisory committees to disclose potential financial conflicts of interest. And it also requires that public financial disclosure forms for federal employees are made available online.
  (Transparency bill on royalties paid to government officials advances in committee - HSGAC)

The post DoD slated to receive over $18B for military construction initiatives first appeared on Federal News Network.

Multiple-award contracts don’t mean everyone who bids get a slot. A new federal circuit court ruling shows that losing companies can protest those who did get an award and maybe knock them off. For details on this important case, the Federal Drive Host Tom Temin  talked with attorney Stephen Bacon of Rogers-Joseph-O’Donnell.

Interview Transcript: 

Tom Temin So this was protested, not to the [Government Accountability Office (GAO)], but to the court in the first place, the Court of Federal Claims. Tell us what happened here. Who’s suing who?

Stephen Bacon So this was a VA procurement, the [Transformation Twenty-One Total Technology-Next Generation (T4NG)] contract for IT services. Some of your listeners may know there’s a T4NG to second generation contract, that this was the first generation contract, and actually an onramp process where the VA was seeking to add contractors to the first generation of the T4NG contract. And so this protest involved a challenge to that competition for the on ramp.

Tom Temin All right. And they were going to add several. And this one company did not make the cut and protested.

Stephen Bacon That’s right. So the solicitation as is often the case for a multiple award contract, it said that the VA intended to add seven awardees, but it gave the agency flexibility to choose the number of awardees, and the agency ultimately made nine awards to proposals that were either good or outstanding. And REV was rated acceptable and so it didn’t make the cut and then challenged that determination by the VA.

Tom Temin So REV losing company challenged the findings of excellent or good of some of the ones that did get awards. And what grounds did they base that on? What information did they have that would allow them to say, hey, they should have been acceptable like us, or we should have been good like them.

Stephen Bacon So REV actually had two categories of allegations. It’s common in a bid protest. In the first instance, they challenged the VA’s evaluation of their own proposal saying instead of acceptable, we should have been rated either good or outstanding because of flaws in the way that the agency evaluated our proposal. But they also challenged six of the awardees and argued that they should have been eliminated from the competition for one reason or another. They made allegations that some of the awardees had organizational conflicts of interest that should have excluded them, or had some other defect in their proposal that rendered them unacceptable under the terms of the solicitation.

Tom Temin Right. So those are pretty serious findings, organizational conflicts of interests. Something that raises eyebrows. But initially at the Court of Federal Claims, they were just ruled out on jurisdictional grounds, standing grounds, I should say.

Stephen Bacon On standing grounds with respect to the second category of allegations. So in a bid protest, one of the key sort of thresholds that you have to get over is to be able to establish if you have standing to protest, meaning that you have the right to even bring your allegations into court. And so that’s a two part test. The first is to decide whether you’re an actual offer or in the competition that has a direct economic interest in the outcome. That’s typically easy to satisfy as long as you’ve submitted a proposal. But there’s the second part of the test that was really at issue here. And that’s showing that there’s prejudicial error that you’re alleging, in other words, that you can show that there was a substantial chance that you would have received a contract if the agency didn’t make whatever error you’re alleging in the protest. And so that prong of the standing test was really kind of the core issue that the Court of Federal Claims used to say that REV didn’t have standing to challenge the awardees, because in the first instance, it didn’t establish that the agency had made any error in assigning an acceptable rating to its proposal. The court took that finding that there was no error in the acceptable finding. And so even if REV was able to successfully eliminate some of the awardees, the court ruled that it didn’t show that it would have had a substantial chance at winning the contract.

Tom Temin We’re speaking with Stephen Bacon. He’s an attorney with Rogers, Joseph O’Donnell. But then REV went to the Federal Circuit Court on appeal then and got a different finding.

Stephen Bacon That’s right. The Federal Circuit reversed, they brought this issue of standing, REV did, to the Federal Circuit, and the Federal Circuit disagreed with the way that the Court of Federal Claims addressed this standing question in the context of a multiple award contract where there’s no set number of guaranteed awardees. And the circuit disagreed with the Court of Federal Claims logic that if the six awardees that REV had challenged were eliminated, that they wouldn’t have had a substantial chance. The circuit agreed with the protester and said, if you had six of those awardees and they had been eliminated, there would have been room for REV to hypothetically get into the winner’s circle if its right about its allegations.

Tom Temin Well, that’s like the San Francisco 49ers saying, well, if it wasn’t for those people from the Midwest and Kansas City, we would have won the Super Bowl. What is the meaning of that of saying, well, if. Because the if didn’t occur, those companies were rated higher.

Stephen Bacon That’s right. So it’s sort of a hypothetical test that the court engages in to decide whether they’re even going to address the merits of your protest. And so this isn’t ruling in favor of the protester on the merits. It’s just simply saying that the court should have grappled with and decided whether those six awardees should have been eliminated because the Court of Federal Claims just didn’t even reach those issues. And so this decision kicks it back to the lower court to say whether there was an organizational conflict of interest or whether there were some reason that the protester pointed out correctly, potentially, that some of those awardees should have been eliminated.

Tom Temin So at this point, then, FEVS has spent a lot of time and money to break new legal ground, but not necessarily to get that contract.

Stephen Bacon That’s right. This doesn’t mean that they’re necessarily going to get into the winner’s circle, but it gives them another opportunity to go back to the Court of Federal claims and have their, at least at a minimum, have their OCI allegations heard and their allegations that some of the other awardees should have been eliminated, heard. And if that’s the case, if they’re able to prevail on that, then in theory they could get an award.

Tom Temin Right. But does that happen automatically? Once the Federal Circuit Court has rendered its opinion, is it up to the company to carry that back and get a new court date and retry the whole thing at the Federal Court of Claims?

Stephen Bacon That’s right. So it will go back remanded. Is the legal term, remanded to the Court of Federal Claims to then decide those other allegations on the merits based on the administrative record before the court. And if the court rules in favor of the protester, then that typically kicks it back to the agency to then look at the court’s findings. And if the protester was correct, that may change the outcome of the new evaluation that the agency has to conduct to comply with the court’s ruling.

Tom Temin And how long could all that take? By the time T4NG two comes out?

Stephen Bacon That’s one of the curious things about this case is they’re fighting over getting on the onramp on to the prior generation contract. And now there’s already been awards under the second generation T4NG contract. So it’s a little curious to wonder what what their real interest is in here. But I suppose there’s still some runway left on this first generation contract, and they’re hoping they can get on it. If the agency continues to award task orders.

Tom Temin In another domain of adjudicating cases, there is the concept of is this case precedential or is it simply routine application of what we already knew. Is this in some sense precedential?

Stephen Bacon Sure. Any time the Federal Circuit rules on a bid protest issue, I kind of think of them like the Supreme Court of government contracts in a sense. There’s very rarely does a bid protest go all the way up to the actual Supreme Court. So typically, the Federal Circuit is the court of last resort for government contracts. And so any time they rule on this kind of issue, it sets a precedent in this particular area. And here with the proliferation and importance of multiple award contracts, this does provide that helpful clarification that protesters really should have a right to go in and challenge awardees, even where there’s some flexibility that the agency has to make a particular number of awards.

The post Contractors have new grounds to protest their way into a multiple-award contract first appeared on Federal News Network.