NDAA is not the only congressional activity contractors are watching

The National Defense Authorization Act is the most visible thing on which Congress is making progress. But it's not the only thing.

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The National Defense Authorization Act is the most visible thing on which Congress is making progress. But it’s not the only thing. Intelligence, the budget and several procurement issues are of big concern to contractors. The Executive Vice President and counsel at the Professional Services Council, Alan Chvotkin, gave his list on Federal Drive with Tom Temin.

Interview transcript: 

Tom Temin:  And I know Alan, you’ve been all over this. And we’ve talked about the NDAA but there’s real progress on a lot of fronts. Still some movement to go. Give us your list.

Alan Chvotkin: Well, at the top of it right now, Tom, is the National Defense Authorization bill. The Senate’s completing its debate at full Senate level by tomorrow – July 1. The House Armed Services Committee is going to continue markup of its version of legislation with a goal of trying to get that bill done and then on the House floor when the house returned from the July 4 recess. So that’s a typically the magnet for a lot of what not only acquisition policy issues, but a lot of other amendments as well. It’ll be the 60th year, well, 59 years in a row, legislation has been enacted. This is the 60th year that Congress is going to try to keep that record going. But as you said, it’s not the only one. The Senate Intel committee has approved its version of the intel authorization bill. And that’s important. It’s got a number of provisions regarding security clearances that Professional Services Council has been working with the committee on for several months. We’ve also commented on some other provisions related to the backlog, and that’s very valuable. And then, of course, we’ve got the appropriations bills right behind in mid-July. We’ve been working on a couple of provisions with the House appropriators on that as well. So there’s almost an effort of getting back to regular order in the Congress. And that’s a good news sign.

Tom Temin: Give us a couple of specifics on the intel bill that there’s some provisions PSC wanted, professional services contractors wanted that might get in there.

Alan Chvotkin: The most significant one is a provision that permits the government to share adverse information about an individual with the company where that individual works. So for too long, you think about insider threat concerns. If there is adverse information that the government knows about an individual, the company should be able to know about that as well. You don’t want to give access to information if there’s adverse information about that individual. This is carefully controlled. The individual has to consent not with each time but in order to grant access to be given access to national security information, the individual has to consent to allowing that information to be shared. That’s a really significant change. Another process that’s underway, might begin to allow individuals to work on national security information outside of skips outside of special controlled the facilities. The Army is testing out whether certain individuals – limited number – will be able to work outside of those facilities. And the two, as we’ve seen from COVID-19, lots of people were unable to continue working because they couldn’t access national security information outside of these control facilities. So any opportunity to expand that it’s going to be very valuable.

Tom Temin: Sure, I guess with some of the barriers, restaurants are putting up, a booth in a diner could be a SCIF one of these days.

Alan Chvotkin: Well, that I don’t know if it is qualified but not too far away. We’re going to be able, to be able to isolate conversations and think about some of those, back to the futuristic bubbles where you couldn’t isolate conversation. If you can do so that may be a basis for doing it.

Tom Temin: All right, I can think of some conversations I would love to isolate. So we’re speaking with the Executive Vice President and counsel at the Professional Services Council Alan Chvotkin. And then there are some acquisition-related issues that are lingering from earlier NDAAs and other bills that the agencies have yet to complete the rulemaking and execution on.

Alan Chvotkin: Well, that – you’re absolutely right. And these acquisition-related regulations are really critical to implementation of the law. First and foremost, we’ve talked about in the past a section, so-called section 889[(a)(1)](B). This refers to that section of the fiscal year 19 National Defense Authorization bill that prohibits the government from doing business with a contractor that uses certain telecommunications or video surveillance equipment. We’re still waiting for – the law goes into effect on Aug. 13 in this calendar year, and we’re still waiting for the regulations to be issued. We had hoped that they’d be out two weeks and even months ago, for comment. Key issues in that regulation about the scope of definitions, and what the term “use” means, and other provisions that are really going to be essential to how companies analyze coverage and seek to comply with it. We’re also waiting for rules on the DoD Cybersecurity Maturity Model Certification Program, the CMMC program. It’s been in the Office of Management Budget for a couple of months now. And this rule is critical because without it, there’s no obligation on companies to implement some of the required changes to the CMMC program. Now companies are going through the analysis of the cybersecurity model technology levels and making those changes but this really translates that into the contracts. And last but certainly not least more guidances is necessary on the implementation of Section 3610 of the CARES Act. And as you know, this is the provision that provides for the reimbursement of contractors who had employees denied access to government facilities and unable to telework, exactly the circumstance I was just talking about with respect to that access to classified information. So we’ve seen a lot of guidance and rules issued, but in May DoD published draft reimbursement guidance. We submitted comments on that on May 22. Other associations and organizations did as well. Maybe something will come out this week or maybe next week. But until those rules are issued, companies won’t know how to proceed with reimbursement, and then in the government the Department of Defense, their own personnel won’t know how to process them. So lots in the queue. I’m worried about the floodgate opening up too soon or all at once, but these are essential, and we hope that they’ll come out both individually and collectively, shortly.

Tom Temin: Well, that last one, the 3610 provision of the CARES Act on reimbursing contractors, I guess we thought maybe a couple of weeks ago that it looked like things would be opening up much more readily, much more rapidly and much more widespread. But now with all the spiking and everybody’s scared again, it could be that this issue is going to linger for quite a bit longer.

Alan Chvotkin: Now, there’s two related issues, of course on the spiking – one is, are people able to return to work in any way? And then the second is for those that have already been affected, or may be affected yet to come, what are the processes for seeking reimbursement? On a related note, though, we’re working with the Congress to see if we can get an extension of the Sept. 30 expiration date of Section 3610. We’d like to see that extended through the end of the calendar year at least, just because as you’ve noted, the spike in coronavirus is having effect in other parts of – lots of parts of the country and affecting individuals and companies as well that do business across the nation. So I think it’s important, particularly given the delay in getting the guidance out for further extension. We don’t have that yet. We’re still talking to offices on Capitol Hill. And I think they’re – I’m hopeful that we’ll find a way to proceed on that front as well.

Tom Temin: Alan Chvotkin is vice president and counsel at the Professional Services Council. As always, thanks so much.

Alan Chvotkin: My pleasure, Tom

Tom Temin: We’ll post this interview at FederalNewsNetwork.com/FederalDrive. Hear the Federal Drive on demand. Subscribe at Apple Podcasts or Podcastone.

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