Which new procurement laws should stay or go?

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House and Senate conferees are working out differences in their respective versions of the National Defense Authorization Act for 2021. They’ve got a lot to iron out. Including a fresh raft of procurement laws. A few of those make sense, others probably should be scratched says my next guest. With more, executive vice president and counsel at the Professional Services Council, Alan Chvotkin, joined Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Alan, let’s start with the procurement provisions in the NDAA because a few months ago we were thinking maybe there wouldn’t be any since the Defense Department hasn’t digested all of the ones from previous years.

Alan Chvotkin: That’s absolutely right Tom, and there’s certainly a ying and yang about whether we want more legislation or not. So we err on the side of adopting provisions that the Professional Services Council recommends and opposing those that are working against the contractors. But both House and Senate bills have reasonable number of provisions, and there’s no killer provisions in here that I saw. There’s some that will make it easier for government contractors and actually for the Pentagon to work. So there are a number of provisions to strengthen the defense industrial base for example. They may seem small but incremental funding of services contracts is an important element trying to address issues related to the Cybersecurity Maturity Model, contract closeout, items like that that have real impact on the day to day work but certainly don’t rise to significant policy issues. We also saw a number of provisions on the increasing for the supply chain and cybersecurity in both the House and the Senate bills. So those are provisions that can be easily worked. The House has also adopted FedRAMP authorization. So a bill by Gerry Connolly and others to permanently authorize the FedRAMP program. Program certainly could use some permanent authorization and some clarification. PSC is a supporter of that legislation as well.

Tom Temin: Yeah, that’s an interesting one, because the FedRAMP program goes back what 7, 8 years now all on its own without any enabling legislation. So this would make sure that nobody could kill it.

Alan Chvotkin: Well, that’s right. But it also reinforces the government wide nature of it. So while GSA has the program management and it’s working very, very well, lots of companies have gone through that administrative process, adding a legislative foundation will strengthen in its government-wide role and we hope that it’ll streamline some of the processes, it still remains a an expensive and challenging role for contractors. And then without the ability to have reciprocity, real reciprocity across government agencies, I think the program has sputtered a little bit while trying to address that issue.

Tom Temin: Which of course was the whole point of it in the first place.

Alan Chvotkin: Exactly right, exactly right. We see these programs, government wide programs, an effort to try to reduce the individuality. When there’s a high degree of commonality, the standards are well understood and at a sufficient level that almost every federal agency should be able to accept FedRAMP certification from another agency, or from the FedRAMP program — and that’s not the case today. It’s similar to some of the conversations that you and I have had over time on security clearances and that same issue of reciprocity and how much individuality do we want agencies to have, and how much is it sufficient at the common level. We’re continuing to work on those issues as well. In fact, there’s another provision in the Senate defense authorization bill, Chairman Rubio and Mark Warner, the ranking member of the Senate Intel Committee added their intel authorization bill as and amendment, so we’ll have a chance to negotiate some of those, they’ll have a chance to negotiate some of those provisions as well.

Tom Temin: And what are some of the provisions you would rather they stay away from?

Alan Chvotkin: Well some of the foreign sourcing and restrictions on contracting that are in both bills are a little problematic. There’s a continued effort to raise the issues around Truth in Negotiations Act and how much data contractors need to provide to federal agencies in order for them to make some of the awards, we see that in the House bill. There’s also a number of additional Buy America provisions that could have a limit on the ability of some companies to do work with with federal agencies, with the Department of Defense in particular.

Tom Temin: And as the pandemic grinds on, you’re also working to make sure that the expiration of Section 3610, which is payment to contractors in the absence of their being physically at work should not happen, and that maybe Congress would extend that — tell us what’s going on there.

Alan Chvotkin: Well, that’s right. As you pointed out, the section 3610 was a provision included in the CARES Act to address a narrow range of contractor employees, those who were denied access to federal facilities because the facilities closed because of COVID and couldn’t do work, telework or perform the work under contract remotely. And so you’ve got people, yet you don’t want to lose those resources. So that exists a lot in the intelligence community. Many of the DoD contracts also require in present in order to do work. So 3610 was designed to be a gap filler, and to make sure that the contractors were able to retain the workforce necessary, and to be called back on almost at any time. The provision expires September 30. It was a temporary provision because of the anticipated end of the coronavirus challenge. But we’ve now seen that the agencies are slower to return employees, federal employees to facilities and so too with contractors. And so we’ve been a proponent of extending that date through December 31. We hope that we’ll turn the corner around this but we’d hate to lose the ability for contractors to hold on to those employees after September 30. So that’s the recommendation. We sent a letter to Congress last week, another letter asking for coverage. We had hoped to be able to see an amendment added to the Senate version of the National Defense Authorization Bill. But that was not included so our next focus is the the next round of COVID-19 recovery legislation.

Tom Temin: And finally, there’s some real action on a federal budget, at least in the House, for 2021. Something I think everyone would welcome them finishing on time.

Alan Chvotkin: Well, we certainly would. And on both of those, I welcome the action and hopefully be able to finish on time before the start of the fiscal year on October 1. Last week, the House passed a mini four bill package, some of the smaller legislation. This week, the House is going to take up a $1.3 trillion package. Seven of the regular 12 appropriations bills will be included, including for funding for the Department of Defense, the Department of Health and Human Services, the two largest appropriations bills is why the number cranked up so quickly. There are lots of amendments that have been filed, over 110 have already been filed for just on the Department of Defense bill alone, and then a dozens for each of the other legislation. Controversy around the Department of Homeland Security and a lot of policy issues there. That bill may be stripped out. And then the 12th bill that’s still yet to be addressed is the legislative branch, the smallest of the appropriations, but it also has its controversy. I’m confident that the House will pass the bill, but the Senate has taken no action on any of the appropriations bills just yet. So kudos to the House for moving forward, but there’s still a long way to go between House action and enactment by the president.

Tom Temin: Deja-vu all over again. Alan Chvotkin is the executive vice president and counsel at the Professional Services Council. As always, thanks so much.

Alan Chvotkin: Always my pleasure Tom. Thank you.