We’ve been taking a look at new compromise language released about the creation of an online marketplace for DOD COTS purchases.
In this final post, we’ll look at some of the concerns people have about the program. The first is about data security. Another improvement over the original Section 801 language is the way the compromise bill deals with the treasure trove of data to which the portal providers will have access.
The previous Thornberry language precluded the online marketplace provider from selling or giving those data to third parties, but imposed no constraint on the provider’s use of those data for its own strategic purposes. Consequently, if a provider also were a seller, the provider could have used sales data from its competitors strategically to tailor its own offering and price its own products.
The new language precludes this by requiring the portal provider to agree “not to use for pricing, marketing, competitive, or other purposes, any information related to a products from a third-party supplier featured on the commercial e-commerce portal….” While this is improved language, it will not be easy for GSA to police this requirement. No doubt, the GSA OIG already is thinking through how it can help.
Notwithstanding the many improvements in the Section 846 language, the extensive breadth of the new program continues to concern many.
- First, the e-commerce portals will accommodate purchases up to the Simplified Acquisition Threshold. While more limited than the original Section 801 language, this still will direct a significant volume of DoD COTS purchasing into the hands of commercial entities.
- Second, while the language is focused on DoD purchasing, it expressly states the portal must be able to accommodate Government-wide purchasing. In other words, DoD is just the starting point. We can expect to see the program expanded to all agencies over time.
- Third, and perhaps most importantly, a companion provision of the NDAA provides that if a product previously has been purchased through a commercial items vehicle (e.g., a FAR Part 12 contract), it cannot be purchased via a more structured procurement (e.g., a FAR Part 15 contract) in the future without jumping through certain hoops.Indeed, the text expressly states that monies given to DoD may not be used to fund a FAR Part 15 procurement if the products being procured previously were purchased through a FAR Part 12 procurement. This new language appears to be designed to make it extremely difficult for DoD (and other agencies in the future) to circumvent the new portals by creating full and open commercial items competitions.
On the topic of commerciality, it is worth noting that, in addition to the e-commerce portal provisions of the compromise bill, the NDAA also includes a number of provisions designed to expand the Government’s use of commercial items purchasing vehicles and expand the number of products qualifying as commercial items.
These new provisions direct DoD to undertake a broad review of its current regulations, contracts, and subcontract flow-down terms to get rid of non-commercial clauses and provisions that have crept into DoD programs over the years. Indeed, the new language directs the Defense Acquisition University to develop new, meaningful training for COs to help them master commercial items acquisitions. This is a welcome development.
Finally, in addition to the positive changes for large businesses, small businesses also have something to cheer about in the compromise language. Section 846 makes clear purchases through the new e-commerce portals are deemed purchases from prime contractors such that the ordering agencies still get their small business purchasing credit.
The language also expressly states that agencies still can set aside their purchases for small businesses as they did before. (These provisions also suggest small business designation will be one of the several attributes portal providers will be required to display on their websites.)
In the end, the new language is a significant improvement over the original House proposal, but it leaves many questions unanswered. Section 846 directs OMB and GSA to fill in those blanks. And it provides for multiple reviews (including a detailed, phased-in GAO review) of how well OMB and GSA do their job.
Time will tell what the new program looks like. But we can be certain of one thing at the moment. The commercial items procurement landscape will change. It just may take longer than Rep. Thornberry had hoped.
As we continue our analysis of NDAA Section 846’s online marketplace provisions, let’s look at who can be a portal provider, and how they will work. We can see that the new language significantly reduces (but does not eliminate) the obstacles to becoming an official portal provider. Previously, Section 801 incorporated requirements only a handful of companies in the world (if that many) could have met.
Section 846 is less restrictive. It defines an acceptable portal as a “commercial solution providing for the purchase of commercial products aggregated, distributed, sold, or manufactured via an online portal.” It directs GSA to “consider” portals that are “widely used in the private sector” and that “have or can be configured to have” frequently updated supplier and product selections, as well as an assortment of product and supplier reviews.
As before, the language still expressly states the portal cannot be managed by the Government or designed for the primary use by the Government. Thus, neither GSA Advantage nor FedMall can satisfy the Section 846 requirements.
Unlike the House version of the bill, Section 846 does NOT state the portal providers will be selected without competition – a provision that greatly concerned not only industry, but many GSA officials as well. To the contrary, Section 846 states that current procurement laws will apply to the program unless explicitly exempted. This new language suggests GSA will have to develop some sort of competitive process to select the portal providers.
Whether that means GSA will conduct a full-and-open, head-to-head competition among potential portal providers or an everyone-who-meets-the-requirements-gets-in type competition (like GSA uses to award Schedule contracts) is unclear. In either case, the removal of the “non-competitive” language from Section 801 is a material improvement over the House bill.
As with Section 801, Section 846 vests significant responsibility in GSA to come up with a means to ensure products sold through the portals are screened to meet applicable statutory requirements. This likely refers to regimes like the Trade Agreements Act (“TAA”), the Buy American Act (“BAA”), environmental requirements, security requirements, and the like.
The language leaves it to GSA to figure out whether it will provide the necessary product data to the portal providers or will develop a mechanism for the providers to obtain those date on their own, presumably directly from the suppliers/manufacturers.
In either case, the continuing importance of product attribute data suggests neither suppliers nor portal providers should view the new procurement process as one devoid of obligations and/or risks.
On the flip side of the obtain-data-from-GSA coin, the new compromise language includes an expected submit-data-to-GSA obligation on the part of portal providers. Specifically, pursuant to Section 846, portal providers will have to collect and provide “order information” to GSA.
While GSA is left to determine what sort of “order information” it needs, chances are the resulting list will be similar to the data currently required through GSA’s TDR program.
Notwithstanding the Section 846 language directing OMB and GSA to ensure the awarded portals meet certain requirements, the compromise bill clearly reflects an effort on the part of Congress to minimize meddling in the structure of existing commercial ordering platforms.
In fact, the Conference Report accompanying the compromise bill encourages GSA “to resist the urge to make changes to the existing features, terms and conditions, and business models of available e-commerce portals, but rather demonstrate the government’s willingness to adapt the way it does business.”
This encouragement becomes a bit more pointed in the next sentence: “Pursuant to a diligent review of existing law and regulation, the conferees direct the Administrator to be judicious in requesting exceptions.”
Section 846 doesn’t have much to say about how agencies will purchase through the portal. Rather, it leaves most of that to GSA and OMB to figure out down the road. At this point, however, the language provides the authorized portals will be limited to COTS purchases. (The language actually uses the term “commercial products,” but strangely redefines the term to mean COTS items.)
Importantly, the language no longer includes the prior indecipherable provision that purchases would be deemed to meet all competitive requirements merely by virtue of there being more than one supplier selling the product.
Here again, the removal of the non-competitive language represents an improvement over the prior language. (The new language, however, provides no insight regarding the “protestability” of orders placed through the new portals, which currently is one of the only means industry has to hold agencies accountable for flawed purchasing decisions.)
Probably the most important change regarding purchasing relates to the prior Section 801 language that precluded ordering agencies from altering the marketplace provider’s standard terms and conditions.
That prohibition raised serious concerns over how fair a marketplace’s standard terms would be in a near-monopoly situation. The prohibition also raised significant questions about how the Government would deal with critical policy imperatives; things like data security, the Anti-Deficiency Act, socio-economic goals, country of origin rules, and the like.
The new language resolves at least some of those questions by providing that purchases through the portals “shall be made, to the maximum extent practicable, under the standard terms and conditions of the portal….”
This is not unlike the language currently used in FAR Part 12 procurements requiring that “contracts for the acquisition of commercial items shall, to the maximum extent practicable, include only those clauses … determined to be consistent with customary commercial practice.”
Since it will not be easy to define when a commercial term must be accepted by the Government or not, however, this likely will be an area for future litigation – just as it has been under FAR Part 12.
Stay tuned for a final look at this new language, and some concerns that remain.
There has been a lot of speculation about the future of commercial items purchasing within the Federal Government since Representative Mac Thornberry circulated his “Section 801” proposal to hand over the bulk of DoD COTS (commercial-off-the-shelf products) purchasing to one or two existing online commercial marketplaces. Industry groups mobilized, companies called their legislators, and the media contributed several stories describing the widespread criticism of the House NDAA proposal. To the surprise of many, however, the Senate seems to have heard industry’s concerns or at least some of them.
The compromise language that just emerged from the House/Senate Conference, designated Section 846 of the 2018 NDAA, reflects significant improvements from the original Thornberry bill. While the new compromise language still moves the Government significantly down the path toward the creation of an online marketplace, which almost certainly will change the way DoD (and likely other federal agencies) will purchase COTS items, the new approach resolved many of the most problematic provisions of the original House bill.
Unlike Section 801, which contemplated a quick, non-competitive award to an existing commercial marketplace provider to handle DoD COTS purchasing, Section 846 directs OMB and GSA to create a phased-in implementation plan and schedule to develop, evaluate, and implement the new online marketplaces (now called “e-commerce portals”) over the better part of three years.
The new language identifies a three-phase approach:
- Phase 1 gives OMB and GSA 90 days to develop an implementation plan and schedule.
- Phase 2 gives OMB and GSA a year after the plan/schedule is complete to conduct market research and to consult with federal agencies, potential e-commerce portal providers, and potential suppliers. Among other things, the “consultation” contemplated in this phase will focus on how current commercial portals function, the standard terms and conditions of such portals, and to what extent the currently-existing portals would have to be modified to meet Government needs.
This phase will also involve an assessment of data security, consideration of issues of concern to “non-traditional” Government contractors, and a review of the impact of fees charged by portal providers. On the issue of fees, the Conference Report accompanying the compromise language offered this warning to GSA: “The conferees are aware of various fee-based and other business-to-business arrangements to feature products offered by certain vendors in many commercial e-commerce portals. The conferees expect the Administrator to ensure that any contract or other agreement entered into for commercial e-commerce portals under this program preclude such business-to-business arrangements.”
- Phase 3 gives OMB and GSA two years (from the creation of its Phase 1 plan/schedule) to develop guidance for the use of the portal, “including protocols for oversight” of procurements through the new program.
As OMB and GSA progress through these three phases under the watchful eye of Congress and the GAO, their efforts will be guided by other provisions of Section 846 that differ significantly from Section 801.
In two follow-up posts, we’ll look more closely at how the new language handles who can be a portal provider and how the portals will work, and then we’ll discuss some concerns about this new program.
Way back when, there was an NDAA provision that said that Prime contractors had to provide a report of which subcontractor they actually used. This was necessary because small businesses were forever complaining that they would be on a Prime’s team but never got any business. The Prime won task orders, but they used other subs that were more favored – even though many times these other subs were not part of the original bid.
Then another NDAA provision was added which gave subs ability to go directly to the contracting officers and indicate that they were not getting paid (or not getting paid promptly). This was followed by still other NDAA provisions that served to strengthen the OSDBU – trying to give the OSDBUs more “teeth” in their enforcement of true equity in subcontractor relationships.
The specific intent here is to strengthen the contracting officer, OSDBU, and subcontractors’ ability to enforce equity in the subcontracting relationship. Truth be told, Primes are just not very good, or uniform, at treating subs as an actual “partner.”
Now comes SEC. 1821. GOOD FAITH IN SUBCONTRACTING, in this year’s NDAA:
‘‘(20) shall review all subcontracting plans required by paragraph (4) or (5) of section 8(d) to ensure that the plan provides maximum practicable opportunity for small business concerns to participate in the performance of the contract to which the plan applies.’’. (c) GOOD FAITH COMPLIANCE.—Not later than 270 days after the date of enactment of this title, the Administrator of the Small Business Administration shall provide examples of activities that would be considered a failure to make a good faith effort to comply with the requirements imposed on an entity (other than a small business concern as defined under section 3 of the Small Business Act.”
What this does is to ensure that the large business must report on actual usage of the small businesses that bid with it on the original subcontract. This will highlight using other small businesses, and not using the originals.
TRANSPARENCY, that’s the ticket to compliance.
In preparing this blog post we benefitted from support from the Army Contracting Command-New Jersey to make sure the descriptions were correct.
Other transaction agreements (OTAs) and their underlying authorities allow for more flexible, commercial–like, and novel business solutions than the Federal Acquisition Regulation. In fact, Office of the Secretary of Defense (OSD) guidance states that contracting officers should not use specific templates for designing such structures. The intent, rather, is for the government to structure business arrangements that are most appropriate for each specific scenario.
However, there are OTA structures that have been effectively demonstrated and can be replicated. One such structure was implemented by Army Contracting Command-New Jersey (ACC-NJ) and involves the use of a consortia of companies interested in working with the Army within a given subject area.
The OTA consortium model has existed for more than a decade and has cumulatively resulted in the award of over $1B for prototype development. While there are several variants between OTA consortia, the general premise is that ACC-NJ executes an OTA not with a single entity but an organized group of entities that agree to participate under a common rule set.
The consortia typically employ a management organization to address administrative needs and manage the flow of information between the Army to the consortia. Typically, these consortia are designed to minimize barriers for new companies to participate.
In several cases, the application to become a consortium member is a one-page form that can be completed online with a $500 annual consortium membership fee. Prospective members must agree to the terms of the consortium and the OTA, but these terms are much more flexible than standard FAR-based contracts (e.g., intellectual property issues may be negotiated on a case-by-case basis).
Once the consortium self-forms the Government may negotiate and award a base OTA. Once the base OTA is awarded, the Government may issue calls for white papers to the consortium in lieu of full-up proposals, thereby cost effectively separating good ideas from those that are less desirable.
The Government may then select a small number of companies to submit a more formal proposal based on the evaluation of the white papers. Ultimately, the Government selects one or more awardees and delivers funding to the selected consortium member(s) – typically through the consortium management organization.
In any instance, OTA provides for flexibility to alter the solicitation, evaluation and award process. However, once the process is established, government compliance is extremely important to maintain fairness in determining contract awards.
The OTA consortium model provides tremendous flexibility, streamlined processes and procedures, and access to the broadest possible pool of prospective vendors.
The Promoting Value Based Procurement Act was forwarded by House Oversight lawmakers in September 2017. Its purpose is to require executive agencies to avoid using lowest price technically acceptable source selection criteria in certain circumstances, and for other purposes.
This is an important change that has been coming down the pike for several years. Increasingly, government procurement officials and their customers, the actual government activities, have noticed again and again, that “lowest price technically acceptable” contracts are a problem – especially after award.
LPTA was originally designed to give the contracting officers a tool to force lower prices and make easier bid decisions. They could assess the technical response on a pass-fail, then just award the lowest price bidder. Yet the end result has been disastrous, such companies who’ve lowered their labor prices so much that they’re unable to hire at those low rates.
These practices have already led to the decline of LPTA contracts, but this legislative initiative codifies that effect and makes it extremely difficult to use LPTA.
I discussed this with my favorite experienced (now retired) contracting officer (CO), and he did raise one interesting side effect: he postulated that we’ll see ‘better’ proposals. I disagreed, but we do agree that we’ll see more technology and innovation proposed in best value procurements; people will look for where they can get discriminators and have the right technical outcome.
In conclusion – we’ll see! In the meantime, for more insights on this legislation, see this NextGov article: House Panel Moves Bill Urging Federal Buyers to Consider Quality, Not Just Cost.
We’ve been taking a look at the biggest changes affecting small businesses in the National Defense Authorization Act for FY 2018. In a previous post we looked at H.R. 1773, meant to clarify terminology and improve uniformity, and today we’ll move on to H.R. 1774.
H.R. 1774, Developing the Next Generation of Small Businesses Act of 2017
This act aims to expand the entrepreneurial development programs to further the important work being done by the House Armed Services Committee on procurement reform, by ensuring that SBA is effectively introducing the next generation of entrepreneurs to the opportunities afforded by federal procurement contracts.
Within H.R. 1774, the following bills are found:
- H.R.1702 – Small Business Development Centers Improvement Act of 2017 – This bill amends the Small Business Act with respect to the authority of the Small Business Administration (SBA) to use certain SBA programs, including the small business development center (SBDC) program, to provide grants, financial assistance, loans, export assistance, and subcontracting opportunities on federal contracts to specified small businesses, organizations, state governments, universities, companies, and other entities that assist smaller enterprises.
- H.R.1680 – Women’s Business Centers Improvements Act of 2017 – The bill revises the duties of the Office of Women’s Business Ownership and declares it is the Office’s mission to assist women entrepreneurs to start, grow, and compete in global markets by providing quality support with access to capital, access to markets, job creation, growth, and counseling.
- H.R.1700 – SCORE for Small Business Act of 2017 – This bill amends the Small Business Act to reauthorize the SCORE program (Service Corps of Retired Executives) for FY2018-FY2019. The program is renamed as simply the SCORE program.
So this NDAA is a little less “bold” – more has been packed into other versions of NDAAs over the years that had a material impact. The items here in H.R. 1774 focus on SBA programs, which are impacting the overall health of small businesses, but do not address the really punishing occasional prejudice that can occur during and after contract procurement.
Remember, too, that the hurricanes will have some material impact on how SBA sees their mission, as they struggle to help small businesses in SE Texas/Louisiana, then Florida and the Gulf Coast, and finally the Caribbean.
Stay tuned, more will be coming in the budget, in the NDAA for FY19, and as tax reform/tax cuts hit the legislative calendars.
What is the status of the National Defense Authorization Act (NDAA)?
As of July 14th, 2017 the House passed H.R. 2810, the FY2018 National Defense Authorization Act.
Ranking Member Nydia M. Velázquez commented:
“The NDAA bill contains a package of bipartisan, small business legislative proposals that will help small firms win their share of federal contracts, strengthen entrepreneurial development programs and assist cutting edge firms as they bring new technologies and products to market.”
What is the purpose of the NDAA?
This bill aims to authorize appropriations for fiscal year 2018 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes.
Nine members of the Small Business Committee introduced contracting and entrepreneurial development bills this year, which are included in the final draft of the NDAA.
Chairman Steve Chabot of the Small Business Committee commented:
“I am proud that many of the bipartisan bills the House Small Business Committee has worked on were included in the bill. I thank Chairman Thornberry for his hard work putting together this year’s National Defense Authorization Act and for recognizing the vital role small business reforms play in our nation’s security. These provisions will ensure small businesses have a greater opportunity to compete for federal contracts, and bring entrepreneurial development programs up-to-date to better equip our small federal contractors.”
Stay tuned for our follow-up posts about the biggest changes affecting small businesses in NDAA FY18.
Did you know that SBA provides low-interest disaster loans to businesses of all sizes, as well as other organizations and individuals?
Check out this page for more information: https://www.sba.gov/disaster-assistance
This is a guest post from Tonya Buckner of BucknerMT Management & Technology, Inc.
Every day we find ourselves in situations that require us to negotiate. Whether it is for business or personal reasons, it is critical to understand that there is more to negotiation than just simply winning. In preparation for negotiations with our clients, team members, partners, or even friends or acquaintances, the key criteria to determine is “How do we bring value together?” The mindset has to be on finding a way to innovate and create.
It is important to understand that when someone says “no” we don’t need to feel alarmed; it is just the beginning of the conversation. It is critical to remember that negotiation is problem-solving. The only way to solve problems is to have key information. The exchange of information allows us to get there together.
Further, it is vital to understand that value and quality don’t always align with cost. When we focus on the bottom-line and cost, we may lose quality. For example, many government contracts are based on “Lowest Price Technically Acceptable (LPTA).” This leaves little room for creativity or innovation. Contracting officers are governed by the Federal Acquisition Regulations (FAR), which in most cases focuses on lowest cost, but often the FAR fails to consider that it costs to add value.
We must dig deep, be honest with ourselves, and decide what we really want. Every situation requires its own strategy. It is imperative that we play to our strengths. The more passionate we are about our own goals but also the more clear we are about our limits, the more clarity and enthusiasm we will have to negotiate until the best possible agreement that can be reached, has been reached.
It is also important to understand what drives us and what got us to the table. While our goal or target should never change, the interest is never money for its own sake and the financial gain is just the path.
Ultimately, the conversation should be centered on adding value. We must see the bigger picture beyond the dollars and the technical baseline. Once we do that creatively, we can enter a world of much greater possibilities. There are many paths to success. By observing sober limits decided upon in advance, we can be clear enough to calmly walk away from a bad deal but also be open enough to negotiate good deals (even if they require more time and complexity).
Additionally, it is dangerous to get caught up in our own interest or our egos. This is the difference between a deal and no deal. There is the interest (our underlying motivation), and the position (the what, in this case financial gain). Negotiation is never about winning just for winning’s sake.
Lastly, the goal is to maintain a good relationship with your client. Creating a win/win situation for both parties results in a long-term relationship and the possibility of more contracts. So don’t lose sight, the end result should be value on both sides!
This post was originally published on the TAPE blog at http://tape-llc.com/2017/07/winning-fulfilling-interest/ and was reprinted with permission.