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Spring 2019

Thriving

in Times of Change M&A

Budget

Cyber

ALSO INSIDE: 9

ANNUAL CONFERENCE 2019

15

PMA ONE YEAR LATER

30

OTA KEY CONSIDERATIONS

32

MEMBER VALUE


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Navigating the Government Contract Compliance LandscapeProfessional Since 1991 2 / Service Contractor / Spring 2019 Services Council


Spring 2019

17 9 REFLECTIONS ON SECTION 809 PANEL

10

28 Sounding Board:

Thriving in Times of Change

4 President’s Letter

9 PSC: Leading the Way in Times of Change 14 Policy Spotlight: Limitations on Subcontracting 15 President’s Management Agenda One Year Later 20 Bill Tracker

25 Technology Business Maganagment

30 OTAs: Key Considerations 32 The Value of Executive Networking 33 Three Critical Elements of Successful

REIGNING IN THE QUI TAM BAR

34

PSC Membership Engagement 37 Event Happenings

EVENT SPOTLIGHT

Cover illustration: Allison Weinstock

Service Contractor

is a publication of the Professional Services Council 4401 Wilson Blvd., Suite 1110 Arlington, VA 22203 Phone: 703-875-8059 Fax: 703-875-8922 Web: www.pscouncil.org All Rights Reserved For advertising or to submit articles or items for the Member News section, contact: Ashlei Stevens stevens@pscouncil.org

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Paul Foldi Vice President, International Development foldi@pscouncil.org Ryan McDermott Vice President, Defense & Intelligence mcdermott@pscouncil.org Melissa R. Phillips, CMP Vice President, Events & Operations phillips@pscouncil.org Robert Piening, CPA, CGMA Vice President, Accounting & Finance piening@pscouncil.org

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Service Contractor / Spring 2019 / 3


PRESIDENT ’S LETTER

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rom the ongoing debate over Brexit to Bryce Harper now playing for the Phillies, one this is for sure: change is ongoing and can happen at any time. The many thousands of federal contractors impacted this year by the longest-lasting government shutdown in U.S. history learned that we must find ways to thrive in times of change. That’s the theme of this year’s Annual Conference for the members of the Professional Services Council, and it’s the theme of this issue of Service Contractor magazine. In this edition, we examine reasons and ways for contractors to thrive in times of change, challenge, uncertainty, and opportunity. Some of PSC’s board members weighed in on this topic. Turn to page 10 to hear from Jan Auman of Tetra Tech, Heidi Gerding of HeiTech Services, Michael Niggel of Act I, and Julie Susman of Jefferson Consulting Group in our “Sounding Board” feature. Our Annual Conference agenda highlights issues of workforce, acquisition, and innovation that service contractors are facing today and in the near future, and on which PSC is helping members. Read more on page 9 from Carey Smith of Parsons Corporation and Bill Vantine of Systems Planning and Analysis, co-chairs for the 2019 PSC Annual Conference Planning Committee. The federal marketplace this year has many uncertainties. One is a three-year old Small Business Administration rule that has yet to be implemented in the Federal Acquisition Regulation regarding the “limitation on subcontracting.” PSC EVP and Counsel Alan Chvotkin takes a closer look at this on page 14. Also on the legal front, on page 28, Lawrence Ebner expands on the “False Claims Act” or qui tam litigation, which continues to be big business for the plaintiffs’ bar. Across issues like these, PSC is working for you to ensure we are providing top-notch advocacy work to our members. To read about others, check out our legislative successes for the 115th Congress on page 19. Of course, the federal marketplace has more than uncertainty. For example, there are many opportunities to forge ahead in the midst of change. On page 9, Alan Balutis

4 / Service Contractor / Spring 2019

of Cisco Systems and I examine the President’s Management Agenda (PMA) one year later and offer some of what it means for contractors. One such meaning lies in the enterprise-wide mandate of the PMA to implement Technology Business Management. Anticipating the question “What’s that?,” Steve Vetter of Cisco Systems on page 25 writes about this critical initiative that’s becoming increasingly important to federal clients and to their supporting contractors. For some of our federal government customers, the use of Other Transaction Agreements, or OTAs, is still on the rise. BDO’s Aaron Raddock and Geoff Merritt explore key considerations and best practices to help you navigate this increasing government opportunity. You can find this on page 30. As change and challenge are often span both the legislative and the regulatory arenas, Baker Tilly’s Patrick Fitzgerald offers nine reflections on the Section 809 Panel’s report and Professional Practice Guide. Be sure to read these reflections—and how they might protect both the taxpayer’s and the government’s interests—on page 17. Also in this issue is advice to help our members get the most from PSC. Read the perspective on executive networking from Greg Baroni, PSC board member and membership chair. PSC’s Director of Membership, Matthew Busby, highlights three critical elements of successful membership engagement. The photos from PSC’s FedHealth Conference, Vision Strategic Planning Forum, and Federal Law Enforcement Conference reflect the content-rich information we are providing to members and the advocacy we’re doing both on and off the Hill. As always, I welcome your ideas on how we can improve PSC and help our federal customer to thrive in times of change.

David J. Berteau

Professional Services Council


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Professional Services Council


PSC: Leading the Way in Times of Change

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By Carey Smith, Chief Operating Officer, Parsons Corporation and Bill Vantine, President and CEO, Systems Planning and Analysis, Inc. 2019 Annual Conference Co-Chairs

hange is on the horizon for the federal acquisition community—from issues related to workforce, technology, budgets, M&A and more. But one thing that remains constant is PSC’s unwavering support as the leading voice of the professional services contracting industry. As members of the PSC Executive Committee, we depend on this voice to help navigate challenges. This year, in our added roles as co-chairs for the 2019 PSC Annual Conference Planning Committee, we wanted to ensure we provided our fellow members with an agenda that would not only offer solutions to current challenges, but also deliver actionable takeaways to be applied long after the conference has ended. We are proud of the efforts of our planning committee and would like to thank them for the time they have put into this conference over the past nine months. We would also like to thank PSC’s year-long partners and Annual Conference sponsors for making this event a success. The 2019 conference theme is “Thriving in Times of Change,” where government and industry leaders will jointly explore various issues that will help PSC members unearth ways to charge ahead in the face of today’s often unpredictable acquisition environment. Here’s a quick look at some of the topics presented at this year’s conference, which highlight issues that service contractors are facing today and in the future, and how PSC is helping lead the way in this work: Other Transaction Agreements (OTAs): Learn about the growing use of OTAs throughout the federal government, including successes and challenges and what companies should know and do about them. Security Clearances: Get an in-depth update on the latest developments in the security clearance and suitability processes and steps companies should take.

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Cyber Compliance: Learn how contractors will need to adapt as agencies potentially move from a cyber compliance system based on meeting NIST standards to comparing the cyber resiliency of current and potential industry partners. GovCon Workforce: Explore the challenges in recruitment and retention facing the GovCon community. Separately, industry leaders will discuss strategies used by small businesses to grow to a sustainable mid-tier company. M&A: Hear a wide array of market viewpoints, to include expertise from the buy- and sell-side, public investor, private equity owner, and advisor perspectives, as well as how the recent tax law and other changes are affecting the mergers and acquisitions market. Changes in the Acquisition Landscape: Learn how adoption of artificial intelligence (AI), machine learning (ML), and other emerging automation technologies will impact agency priorities and acquisition strategies. Artificial Intelligence and Automation: How will adoption of artificial intelligence (AI), machine learning (ML), and other emerging automation technologies impact agency priorities and acquisition strategies? As this is PSC’s largest convening of the year, we also want attendees to take full advantage of all the valuable networking opportunities this conference has to offer. We hope you walk away from this event with new friends—expanding your network of connections—and new business insight and intelligence, to strengthen our contracting community even further. With that, we are honored to welcome each of you— more than 500 attendees and our featured government speakers—to your 2019 Annual Conference.

Service Contractor / Spring 2019 / 9


Sounding Board

Thriving

in Times of Change

10 / Service Contractor / Spring 2019

Professional Services Council


The winds of change are constantly blowing across the federal acquisition community. Whether it is emerging cyber threats or changes to oversight of the security clearance process or the historic lapse in appropriations that lead to the federal government’s longest-lasting government shutdown, change is frequent and inevitable. So how do services contractors thrive and forge ahead in times of frequent industry change? PSC board members offer their take. Tetra Tech President Jan Auman, HeiTech Services CEO Heidi Gerding, ACT I CEO Michael Niggel, and Jefferson Consulting Group President & CEO Julie Susman sound off on this topic.

Jan Auman

President, Tetra Tech International Development Services

Heidi Gerding

CEO, HeiTech Services, Inc.

Throughout my career in international development, there is only one constant—change. From evolving Administration priorities to devastating humanitarian disasters to increasing conflict to mass migration, we are witnessing dramatic upheavals that are reshaping international development priorities. At Tetra Tech, the key to our long-term success in times of change boils down to a few simple business fundamentals: embrace change; adapt quickly to evolving priorities and opportunities with new ideas and investment; communicate regularly with clients and listen carefully to their needs; apply an integrated multidisciplinary approach to problem solving; incorporate continuous learning, technology, and innovation in projects; and ensure diversity of your staff. Success lies in staying nimble and flexible as a firm, empowering your people, and above all, listening to and anticipating your

In my 20 years of experience leading a small business through times of change, I’ve learned there are three strategies to help my company navigate such times. Although these strategies seem obvious, they are not always easy to practice because we have daily obligations that sometimes hamper our capacity to be more forward thinking about the future. My three strategies to best thrive in times of change include: 1) staying connected; 2) ensuring you have the right team; and 3) being financial solvent. Staying connected is critical in understanding what changes are coming and being prepared to respond accordingly. I stay connected through active participation in industry associations (e.g. PSC, Mid-Tier Advocacy, and the National Veteran Small Business Coalition) which keep their constituencies abreast of changes and/or represent your business to stakeholders in the government or on Capitol Hill. Other sources of information

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Michael Niggel

CEO, Advanced Concepts and Technologies International, L.L.C. (ACT I)

Julie Susman

President & CEO Jefferson Consulting Group

As the saying goes “the only constant is change,” and we have seen our share of change in the GovCon community. In turbulent times, companies need to focus on fundamentals. ACT I focuses on four main areas that we believe are fundamental to success anytime, but especially in turbulent economic, political, and business times. These areas are: employee satisfaction, customer satisfaction, a sound strategic plan, and being dedicated to continuously improving your firm’s processes, systems, and tools. Let’s take a closer look at each of these four focus areas to thrive in times of change. 1. Employee Satisfaction: Firms should create an environment and culture where employees feel secure, supported and recognized as the key driver of the firm’s success. Employee satisfaction should be baselined and measured. Employees must be recognized

The rapid pace of technology advancement, combined with changing political and governing dynamics, has made the present feel like a time of both opportunity and uncertainty. While incredible changes are occurring today in the world and in our government, change has been a constant for those of us who have spent our careers in the federal professional services market. As the owner of a womanowned small business and advisor to federal contractors large and small, I’ve seen first-hand how legislative, regulatory, policy, and administrative changes are constantly reshaping our market. That reshaping can happen quickly, as was the case with the Supreme Court’s decision on Kingdomware that changed contracting in the Department of Veterans Affairs (VA). Overnight, the VA market was reshaped, and businesses–

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Jan Auman, cont’d from page 11

Heidi Gerding, cont’d from page 11

clients’ changing priorities and finding workable solutions to their problems. This does not happen by accident. Tetra Tech’s network of 400 global offices enables us to be local for our clients, while tapping into the strength of a 17,000-person firm. But whether you have a team of 17,000 or just 17, we’ve found it key to have multidisciplinary teams which use proven methodologies and innovative approaches and tools to do the work. It’s all about staying on the ground, staying close to clients and project stakeholders, as this local proximity to clients and stakeholders enables your company to understand their evolving priorities and funding sources. Achieving success in a complex and ever-changing world is not easy. To do so, it’s important that technical experts seek to harness the power of new technologies and apply them to the international development context whenever practical, without viewing technology as a panacea. Combining integrated development expertise with rigorous evidence and sciencebased approaches and continuous learning is fundamental to everything we do. For example, in USAID’s SERVIR West Africa project, we are supporting USAID and NASA to build developing countries’ resilience to drought and other natural disasters, which severely affects food and water security. SERVIR uses a combination of satellite data and technical expertise to build local capacity. This empowers local experts and stakeholders to prepare for, and respond to, the environmental and natural disaster challenges, and builds long-term resilience and sustainability. In addition, achieving diversity in your staff, technical services, geographic reach, and client base is key. To thrive in times of change, we’ve found that staff diversity and inclusion ensure a richness of ideas, backgrounds, and perspectives. Having a diversity of clients, services, and geographies also enables companies to ride out uncertainty that impacts any one of these areas. The international development market is changing dramatically with new donors and sources of funding. Recent efforts by our clients to leverage private capital and expand publicprivate partnerships are bringing new partners to the table not only to share in the development journey, but to accelerate and scale development results. The future success of development consulting firms depends on embracing change, being nimble, listening carefully to clients and local stakeholders, and offering customized approaches to complex development problems with innovation, technology, and continuous learning. Using this recipe, Tetra Tech and other consulting firms will continue to play a vital role in achieving the United Nation’s 2030 Sustainable Development Goals. 3

come from relationships with your customers by learning how their agency is planning for the future in the use of technology, need for staff support, acquisition strategies, etc. I also meet regularly with my outside support team—including my attorney, accountant, banker, vendors, etc.—to hear what they know about changes in my industry. Information gleaned from these sources oftentimes provides enough notice to meet with my industry associations or Congressional representatives about how these changes impact my business and more importantly, the employees that support the federal government. Regularly review your executive leadership team to make sure you have the right combination of talent to get your business through times of change. The leadership team must demonstrate an understanding of your business and how it is changing; flexibility in responding to change in a manner that demonstrates a balance of urgency and focus; and respectfully challenge our approaches to obtain the best use of resources to support change. Although easier said than done, replace those who resist change with those who embrace it. Finally, a business needs to remain financially solvent. During times of change, our political climate results in political standoffs that directly impact federal contractors (e.g., the most recent and historic government shutdown). Whatever the reason, a business needs to have sufficient capital to continue to operate the business. Review financial statements regularly and ensure your business remains fiscally responsible. Communicate with your employees regularly through times of change so that they understand how decisions impact their livelihoods. 3

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Michael Niggel, cont’d from page 11 and rewarded based on performance. For example, during the government shutdown earlier this year, ACT I funded all of our employees who were impacted by the 35-day lapse in appropriations. We saw this as an opportunity to let our employees and customers know that our employees are number one. We invested in our employees during the shutdown by bringing them in for additional training while their offices were closed. This was one clear way for us to demonstrate our commitment to employee satisfaction. 2. Customer Satisfaction: It is the mission of all employees to make customer satisfaction a reality and not just a belief or a catch phrase. The customers’ missions are our missions. Firms that focus on their core competencies and deliver customer results in a timely, affordable, and competent manner will increase customer satisfaction. In turn, this will be reflected in many ways—for example your CPARS ratings and via increased business.

Professional Services Council


Michael Niggel, continued from page 12

3. Strategic Planning: In uncertain or turbulent times, developing or updating your strategic plan will help you stay focused on you firm’s core mission, vision and values. Revising your strategic plan to set clear goals, develop a sound roadmap for the firm, and tailor employee role maps will help to both anticipate and avoid negative impacts while also taking advantage of positive market changes. To “wait” or “hope” for positive change is not a method. Proactively planning, acting, and measuring are methods. As our environment changes, we should anticipate, plan, and adapt our firms’ strategic plan to design new roadmaps to achieve our mission and vision. 4. Improve Processes, Systems and Tools: Firms have an opportunity during times of great change to leapfrog the competition by dramatically improving their efficiency and productivity with investments in workflow processes, systems and tools. As your company grows, it is imperative to develop and implement your processes and systems before the major growth occurs. Turbulent times are the perfect time to develop, test, and document your processes, systems and tools to ensure future scalability. We recently invested in our infrastructure and staff prior to our CMMI Level 3 for services and ISO 9001:2015 certification. This investment has quickly paid dividends in productivity and quality, as well as demonstrated our commitment to continuous process improvement to deliver the best value to our customers. Change is inevitable, and it can be good—if you embrace it to focus on employee and customer satisfaction with a solid strategic plan and fundamental processes, systems, and tools. The GovCon industry as a whole will certainly face changes ahead and these four areas can be a model to proactively anticipate, plan and adapt to “thrive in times of change.” 3

Julia T. Susman, cont’d from page 11 including ours–which could traditionally prime VA opportunities, had to reevaluate approaches to new business and teaming in the VA. It was something that could not be planned for, but something to which everyone in the market was forced to react. While that change was instantaneous, the effects on this market over time are uncertain. Other policy and contracting changes take much longer to reshape the landscape. Such is the case with small business set-asides. We recently celebrated our 30th year as a company, and in those years, we’ve been small, large, and small again as we’ve grown larger and size standards have changed. But until about FY2013 when the Obama administration committed to achieving small business goals, our size status had no effect on our business, as most contracts we bid on were full and open. Since that time, the number of set-asides grew voluminously, including in the area of acquisition, one of the specialty areas

Professional Services Council

of our firm. As an example, today nearly all contracts for acquisition support are set aside. It makes no sense to set aside an entire contacting category, which has the unintended consequence of excluding the firms with expertise from priming once they are large. To attempt to tackle transition challenges, last year Congress enacted the Small Business Runway Extension Act. While it’s not a solution to the evolving professional services market, it’s a start that the Hill, in a non-partisan way, is recognizing that policies and laws need to change to remove barriers that challenge and often prevent small businesses from thriving once they graduate. Both the House and Senate Small Business Committees are committed to continuing their oversight as they explore ways to better enable companies to transition successfully from the set aside programs into the open federal marketplace. While supporting and advocating for policy and legislative changes initiated by others, small companies can’t wait for or rely on others to make changes. All companies must adapt internally to each new reality and establish a transition plan, years before one is needed. At Jefferson, we have been planning for our growth with an intense focus on people: 1. Our Team: We have a senior team that includes employees who have worked alongside me for a decade or longer. They understand and cultivate our culture and can impart to our team the company’s customer focus and dedication to exceeding our clients’ expectations. We also added new team members with different expertise to complement and help us evolve and grow. This approach grounds us in who we’ve always been while helping us see and implement what we can become. 2. Customers: Our exceptional people also adapt our services to the market by continuing to increase their value and by understanding what customers need to achieve their goals. We listen to their needs and continuously examine what we provide, and how we provide it to constantly improve and remain a superior solution for existing and future customers. 3. Teaming Partners: We recognize the criticality of our teaming partners. We have developed long-term relationships with many companies and are discovering new partners with complementary capabilities to provide more complex services and newer companies that we can mentor. The increasing complexity of our government’s requirements–more often than not–leads us to forming teams. Partners who share our values and vision work as force multipliers for the combined growth of our firms and the achievement of our customers’ missions. It’s through these three areas that we are focusing our efforts to prepare for and adapt to change that will continue to accelerate into the future. It is important that contracting requirements and legislative changes be aligned with the needs of government agencies and their missions, while ensuring that the environment is one in which companies of all sizes have the opportunity to grow and thrive. 3

Service Contractor / Spring 2019 / 13


Policy Spotlight

The Limitation on Subcontracting Rules –

Three Years Was Not Enough to Get it Right by Alan Chvotkin, PSC Executive Vice President and Counsel

14 / Service Contractor / Spring 2019

SBA’s 2016 final rule in the Defense Federal Acquisition Regulation Supplement (DFARS). In April 2019, the Civilian Agencies Acquisition Council (CAAC) also authorized nondefense federal agencies to “immediately” implement SBA”s 2016 final rule. Neither the DFARS nor the CAAC actions address elements of SBA’s December proposed revisions to its own 2016 LOS regulations. Leading up to December actions, PSC held numerous working sessions with our members and had discussions with agencies’ policy and procurement officials to highlight our concerns and to share the comments received from our members. We believe that the immediate regulatory implementation of even SBA’s original 2016 rule, without any training for agency contracting officers and small business advocates, or for small businesses, will create confusion, uncertainty and real risks of consequential non-compliance for small business contractors. PSC will continue our advocacy in favor of fair and executable LOS regulations for small business. 3 Professional Services Council

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or decades, small business prime contractors who received set-aside awards for services contracts were limited in the amount of work that they could subcontract – not more than 50 percent of the labor to be performed under the contract. This was and is known as the “limitation on subcontracting” or “LOS” rules. But Congress made changes to the LOS regime and acquisition rules are coming, finally, but not necessarily for the good of small businesses or the federal agencies. In 2013, Congress amended the Small Business Act to change two important elements of the LOS rules. First, the 50 percent subcontracting limitation was modified to cover the entire value of the awarded contract, not just the labor to be performed. Second, Congress created a new category of firms – called “similarly situated entities” – to whom a small business prime contractor could subcontract work and not have that subcontract work count against the 50 percent limitation. PSC raised concerns to the Hill about the shift to the total value of the contract, but to no avail. It took SBA more than three years, until 2016, to issue its final rules implementing that 2013 law change. PSC also highlighted our concerns to SBA in their development of the rulemaking, but they made only minor adjustments in their final rule. In December 2018, SBA published a proposed rule to change its 2016 final rule, addressing several of the concerns PSC raised in our earlier comments. Also in December 2018, the FAR Council published a proposed rule to implement SBA’s 2016 regulation, but without the revisions SBA had just proposed! PSC filed comments on both the SBA and the Federal Acquisition Regulation (FAR) proposed rules; while we endorsed many components of the SBA revision, we offered further comments to simplify compliance and expand the exemptions introduced by SBA. We also urged the FAR Council to incorporate the update from the SBA proposed rule and make other necessary changes to the FAR. But as of April 2019, there is still no final FAR rule to implement the SBA 2016 rule. However, in advance of the close of the public comment period on the FAR and SBA regulations, in December 2018 DoD issued a class deviation to immediately (really?) implement


Moving Toward a Well-Run Government: The President’s Management Agenda One Year Later by Alan Balutis, Senior Director and Distinguished Fellow, Cisco Systems, and David Berteau, PSC President and CEO

Introduction

Every President–for decades–has organized an effort to reform government. These undertakings have often carried different names. For many Administrations, such an effort needed the appearance of being fresh and new and full of ideas that no prior Presidency could possibly have created. For some, it takes years for the agenda to take shape and be issued. For others, the reform focus is at the agency level rather than centrally directed from the White House (we are thinking here of Secretary of Defense Robert McNamara’s Cost Reduction Program, which had no governmentwide equivalent under President John Kennedy). Some reform efforts struggled with identifying measurable goals, with creating benchmarks for those measures, and with public reporting of progress from the benchmarks to the goals. (NOTE: In one Administration, when faced with negative progress toward a specific White House goal, a senior official remarked “we need new metrics”). This Administration certainly has no shortage of problems to solve. The question is whether it can adopt new approaches to the management of government to meet the challenges it faces. Facing these challenges will require a “changed” government. By that we don’t mean a clichéd bumper sticker government – one that “does more with less” or is “leaner and more efficient.” We mean a 21st century government transformed to operate on demand. Both of us have many years in and around our federal government. In the late 1960’s and early 70’s, agencies were still struggling with Lyndon Johnson’s Planning, Programming and Budgeting System and Richard Nixon’s Management by Objectives. Jimmy Carter had ZeroBase Budgeting. Ronald Reagan kicked off Reform ‘88 and committed to privatizing the government under a roadmap laid out in the 29 volumes of the Grace Commission. Bush 41 continued those efforts, burnished by “a thousand points of light.” The Clinton Administration had “Reinventing Government”. Bush 43 gave a speech in July 2000, focused on “citizen-centered, results-oriented and, wherever possible, market-based” government (he later was the first to use the phrase “president’s management agenda”). In 2009, President Obama rolled out his plan to make government more transparent and to appoint a Chief Performance Officer and a Chief Technology Officer. Professional Services Council

14 Cross-Agency Priority Goals 1. IT modernization (a broad “driver of transformation”) 2. Data, accountability and transparency (a broad “driver of transformation”) 3. Workforce for the 21st century (a broad “driver of transformation”) 4. Improving customer experience with federal services 5. Sharing quality services 6. Shifting from low-value to high-value work 7. Category management 8. Results-oriented accountability for grants 9. Getting payments right 10. Improving outcomes through federal IT spending transparency 11. Improving management of major acquisitions 12. Modernize infrastructure permitting 13. Security clearance, suitability and credentialing reform and 14. Improving transfer of federally-funded technologies from lab to market

Now we have President Trump’s management agenda (the President’s Management Agenda, or PMA). One will note similarities with previous agendas. That can be reassuring, because bringing about change in a Fortune One company like our Federal government takes time, leadership commitment, and continuity. With the economy improving and the potential for bipartisan government reform, the Administration can turn to information technology modernization, acquisition reform, personnel streamlining, and management improvement. These may sound boring to some, but you have to get them right to make government exciting, attractive and effective again. As the Washington Post’s E.J. Dionne, Jr. observed in a recent column: The greatest obstacle . . . now is . . . the dismal view of government performance held by the vast majority of Americans. The antidote is a well-run government. Service Contractor / Spring 2019 / 15


In that context, this PMA stands out in several ways that matter to Federal agencies and affect the market for government services and solutions contracts. Let’s quickly review some obvious strengths and weaknesses of the Trump plan and its implications for industry.

Strengths:

• Created earlier in the four-year term than was true for some prior Administrations. • Did not reinvent initiatives, but instead many of the 14 crossagency priority goals are the same or similar from previous Administrations. Built on and continued emphasis on prior work and progress. • Clear objectives, milestones, and reporting that is visible to the public. • Committed and publicly visible leadership from the Office of Management and Budget, the federal Chief Information Officer, the Administrator of the General Services Administration, and the leadership at the Office of Personnel Management. • A focus on the end goal – improved service to the citizen. • Information Technology not seen as a stovepipe, but as an enabler–a force-multiplier to achieve a number of PMA goals.

Weaknesses:

• The resource commitment is less clear and visible. It’s hard to track in the FY2020 budget materials. • Many CAP goals remain too focused on inputs, not measurable results.

2 0 1 9

F E D E R A L

ACQUISITION C O N F E R E N C E Presented by

• Challenge of continuity – how does this survive the transition from current leadership?

Of Particular Interest to Industry

CAP Goal 1, IT Modernization – Modernizing Government Technology (MGT) Act was enacted in December 2017 as part of FY2018 National Defense Authorization Act (NDAA), but the statute applies government-wide. However, only two Centers of Excellence have been created to date, and MGT authority expires in six months. In addition, the White House has struggled over funding and over creating agency-level Working Capital Funds to pay for IT modernization with savings from legacy systems reductions. CAP Goal 7, Category Management – This goal can be too heavily focused on dollar savings and not on results or solutions. Best-in-Class (BiC) contracts can (overnight and with no warning) cut off vendors from customers they’ve supported for years or longer. CAP Goal 13, Security Clearances – Uncertainty remains over the still-pending transfer of all background investigations to the Department of Defense (from the administration’s June 21, 2018, reorganization proposals).

Conclusion

The PMA celebrated its first “birthday” or perhaps “anniversary” in March. As we have noted, there are many positive signs and foundational progress to point to. But this will be the key year to see what real accomplishments emerge. Watch closely with us as we track and report on what develops. 3

June 13, 2019 8 a.m. - 11:30 a.m. Arlington, VA Discover acquisition trends shaping the industry and their effect on your business!

Register at www.pscouncil.org/AcquisitionConference 16 / Service Contractor / Spring 2019

Professional Services Council


9 Reflections on the Section 809 Panel Reports and Professional Practice Guide by Patrick J. Fitzgerald, Director, Government Contractor Advisory Services, Baker Tilly

T

here’s a lot going on in the government regulatory environment, not least of which is the recently published Section 809 Panel Volume 3 Report. Created by Congress in the FY 2016 NDAA, the Section 809 Panel was tasked with identifying ways to streamline and improve defense acquisition. Volume 3 represents the third and final set of recommendations. To kick off the new year, the PSC Contract Finance and Cash Flow Committee dedicated much of their January meeting to the new Report. I was pleased to accept their invitation to address the Section 809 Panel recommendations, focused on the Panel’s Professional Practice Guide.1 If adopted, the Professional Practice Guide will help shape how DCAA, DCMA and private sector auditors perform work with the government and government contractors. Done right, the changes will protect taxpayers’ and government’s interests while encouraging contractors to do business with the government in a way that no one pays more for compliance than its worth.

shutterstock.com/Natali_Mis

Here are nine reflections on the Reports and Guide. 1. Change is Good. When it comes to defense contracting – and getting critical resources to our nation’s warfighters – change is good. Too many of the rules, regulations and practices of defense contracting, compliance and auditing were for a marketplace that simply no longer exists and do not reflect the realities of the marketplace that the government must operate in today and in the future. Technologies, communications, global relations and the nature of war are all moving targets. Today’s Department of Defense (DoD) requires capabilities and services that were not even imagined when some of the regulations were adopted. It’s (past) time for acquisition regulations and oversight to catch up. 2. Progress Has Started. Even if Congress doesn’t adopt all of the recommendations, the very fact that it established the Panel in the FY16 NDAA is a demonstration of progress. In fact, some of the recommendations from the Panel’s Volume 1 Professional Services Council

and Volume 2 Reports have already been put into place. With both evolutionary and revolutionary change recommendations in Volume 3, some could be adopted quickly and with immediate effect. So, it’s highly likely that even more change is just around the corner. 3. It’s Important to Keep Up. The Section 809 Panel made 98 recommendations (plus associated subrecommendations) in its three reports for strategically and tactically changing the overall structure and operations of defense acquisition. That’s a lot of moving parts with potentially far-reaching impact. It is a formidable job to stay aware of the status of the potential changes, but it behooves us all to monitor the Service Contractor / Spring 2019 / 17


Defense acquisition – and the related government oversight – must be risk-based and should not be any more burdensome, excessive or cumbersome than it needs to be. recommendations that most directly guide how we do our jobs and how organizations interact with DoD contracts. 4. We All Want the Same Things. In part, the recommendations are intended to enable the DoD to make purchases similar to the way private-sector businesses do for the majority of services and products – which is challenging or impossible under the current system. Government executives, contractors, oversight professionals and contracting officers have a shared goal that defense acquisition continues to ensure that our men and women in uniform are the best equipped fighting force in the world and that the process by which this is accomplished is one of high integrity and fairness. 5. Auditing and Oversight Consistency Reduces Risk. With various legislative changes to the DoD audit process, and Congress mandating that private sector audit firms do work in DoD along with the Defense Contract Audit Agency, there is ample room for inconsistency in how auditing and oversight work is performed from one project to the next. However, when there is consistency, contracting officers get predictable results and reports. With more information in the proper context, they can better understand risks and problems. They are better armed to make informed decisions as they execute contracts. 6. The Professional Practice Guide is a Great Start. A highlight of Volume 3, Section 6 is the Professional Practice Guide.2 It takes well-established and understood private sector financial statement auditing and accounting terms and concepts and outlines how those concepts should be interpreted and applied in contract auditing. Evaluating whether taxpayer money is being spent correctly is a different application than providing an opinion on whether a set of financial statements are fairly presented. The Guide lays out the similarities and differences in applying each of the concepts. 7. Compliance May Be (Better) Rewarded. In my discussion with the PSC committee, I was struck by the hopefulness expressed by the idea that government oversight and audit could become more effective, efficient and less burdensome. The Professional Practice Guide suggests a practical, reasonable

application of auditing concepts – one where a materiality threshold could be applied to help the auditors focus on the most important areas and accounts. Or risk practices where government contractors who have strong internal controls and whose reports are accurate and timely may be audited less frequently, or have a lesser oversight burden, when the government has reasonable assurance that they’re doing the right thing. 8. We Share a Vision of Adaptability. One of the Panel’s recommendations is to adopt the Professional Practice Guide and create a group of key stakeholders to keep it current and build on the Guide’s content by addressing future issues as they arise. One of the reasons for creating the 809 Panel is the failure of some acquisition regulations to stay relevant to today’s changing marketplace. The Panel has completed its recommendations, but things will continue to change. I support the idea of dedicating a working group that’s responsible for keeping the Professional Practice Guide forward-moving as the defense acquisition environment evolves over time. PSC can (and should) support that effort. 9. We’re on the Same Page. One of the most surprising outcomes of the working group was not the Guide itself, but the extensive collaboration among the group members and the complete consensus achieved with the Guide’s content. With representatives from stakeholder organizations such as the AICPA, DCAA, DCMA, GAO,3 industry, and the 809 Panel working together over the past year and a half, we certainly had some disagreements. But in the end, the Guide was the result of a true team effort with each participant making valuable contributions to the Guide’s final content. 3 Pat Fitzgerald supported the Section 809 Panel work and participated in the group that wrote the Professional Practice Guide. With over 35 years of experience in government auditing and acquisition, Pat previously served as the director of the Defense Contract Audit Agency, and as the auditor general for the U.S. Army. LinkedIn: https://www.linkedin.com/in/patrick-fitzgeraldcpa-386475112/

Published at the end of Section 6 within the Volume 3 Report Part 2: https://bit.ly/2TRSirw Streamlining and Improving Compliance section Part 2, which includes Section 6: https://bit.ly/2TRSirw 3 American Institute of Certified Public Accountants (AICPA), Defense Contract Audit Agency (DCAA), Defense Contract Management Agency (DCMA) and U.S. Government Accountability Office (GAO). 1 2

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LEGISLATIVE ACCOMPLISHMENTS th FOR THE 115 CONGRESS (2017-2018) IMPROVED ACQUISITION OUTCOMES

Secured enactment of government-wide restrictions on the use of LPTA.

Originated a provision for the government to define and measure “Procurement Administrative Lead Times” (PALT).

ADVOCATING ON BEHALF OF THE GOVERNMENT CONTRACTING INDUSTRY

LEVERAGED INDUSTRY EXPERTISE

Pushed for a requirement that DCAA use independent, third-party auditors to help reduce their incurred cost backlog.

PROTECTED FAIRNESS FOR FEDERAL CONTRACTORS

Led the industry campaign to repeal the Fair Pay Safe Workplaces regulations.

Worked with the sponsors to draft, introduce and enact accelerated payments to small business Defense subcontractors.

SUPPORTED ACCESS TO TECHNOLOGY AND INNOVATION

Supported additional investment for federal IT infrastructure by championing the Modernizing Government Technology (MGT) Act.

Advocated for separate definitions of commercial items for “products” and “services”.

PREPARING THE WORKFORCE FOR FUTURE GOVERNMENT MISSIONS

Supported the enactment of the SECRET Act to help quantify, track, and mitigate the backlog of security clearance investigations. Led a campaign to establish a "Trusted Information Provider Program" to share information between the government and industry. Promoted additional security clearance reporting on expedited processing for mission-critical positions and implementing a clearance in person concept.

LOOKING AHEAD

Demonstrating the Value of Government Contracting by advocating for a fair and balanced total workforce management approach.

Helping the Government Become a Smarter Buyer by promoting an effectIve, streamlined, and competitive federal contracting system.

Large

16%

Advocated for comprehensive post-award debriefings for Defense contractors.

68%

16%

Medium Small

PSC Membership - Companies by Size

2 4 30 140 1000

HOW WE DO IT

Participated in two Committee roundtables: House Veterans Affairs Committee and House Small Business Committee. Testified four times in the 115th Congress before House and Senate Committees: House Armed Services Committee; Senate Select Committee on Intelligence; House Small Business Committee; and House Committee on Homeland Security. Sent more than 30 Hill letters and other communications to the House and Senate.

Participated in 140 Hill meetings with members of Congress and staff.

Quoted more than 1000 times by media on issues important to the government contracting industry.

Promoting Technology and Innovation by working to improve IT acquisitions and cybersecurity.

Building Workforces of the Future to Meet Government Missions by working toward more effective management of the total workforce.

For more information contact membership@pscouncil.org. Professional Services Council

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Bill Tracker: 116th Congress-First Session (2019) H.J. Res. 28

Further Additional Continuing Appropriations Act of 2019, Lowey (D-NY) SUMMARY Provided continuing FY19 appropriations to several federal agencies through February 15, 2019, reopening the government following a lapse in appropriations on December 22, 2018. STATUS Signed into law on 1/25/19; P.L. 116-5.

H.J. Res. 31 Consolidated Appropriations Act of 2019, Roybal-Allard (D-CA)

SUMMARY Provided funding for federal agencies operating under a continuing resolution through the remainder of FY19. STATUS Signed into law on 2/15/19; P.L. 116-6.

H.R. 190 Expanding Contracting Opportunities for Small Businesses Act, Marshall (R-KS)

SUMMARY Would raise the threshold for sole-source contracts to disadvantaged small businesses to $7 million for manufacturing and $4 million for others, and eliminate option years from the cost consideration. STATUS Passed the House (415-6) on 1/16/19. Related bill: S.673. Encouraging Small Business Innovation Act, Rounda (D-CA)

H.R. 206

SUMMARY STATUS

Would allow Small Business Investment Companies (SBICs) to invest in small businesses that participate in SBIR and STTR programs; and allow SBA to increase the past performance rating of contractors in SBIR and STTR programs and mentor a business seeking to participate in one of those programs. Passed the House (voice vote) on 1/14/19.

H.R. 226 Clarity on Small Business Participation in Category Management Act,Velazquez (D-NY)

SUMMARY Requires the SBA Administrator to report federal spending on best-in-class vehicles and the number and the dollar amount of small business contracts. STATUS Passed the House (414-11) on 1/9/19.

Incentivizing Fairness in Subcontracting Act,Velazquez (D-NY) H.R. 227

SUMMARY STATUS

Would allow prime contractors to choose to count lower-tier contracts with small businesses toward their goals, require federal agencies to collect additional data on subcontracting goals, and establish a dispute resolution process for payment issues between subcontractors and prime contractors. Passed the House (voice vote) on 1/8/19.

H.R. 246 Stimulating Innovation through Procurement Act, Finkenauer (D-IA)

SUMMARY STATUS

Would require federal agencies to help businesses that participate in the SBIR or STTR programs with commercializing their research and to provide those small businesses with technical assistance on bids. Passed the House (voice vote) on 1/14/19.

H.R. 247

Federal CIO Authorization Act, Hurd (R-TX) SUMMARY Would codify the federal chief information officer and chief information security officer positions, make both presidential appointees, and direct the CIO to submit a proposal to Congress for consolidating and streamlining IT across federal agencies.

STATUS

Passed the House (voice vote) on 1/15/19.

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Bill Tracker: 116th Congress-First Session (2019) Low-Wage Federal Contractor Employee Back Pay Act, Norton (D-DC) H.R. 339 Would require the federal government to compensate employees of federal contractors that SUMMARY

provide retail, food, custodial, or security services who are placed on unpaid leave as a result of a lapse in appropriations.

STATUS

Referred to the House Committee on Oversight and Reform on 1/8/19.

H.R. 424

Department of Homeland Security Clearance Management and Administration Act, Thompson (D-MS) SUMMARY Would require DHS to review and adjust as necessary all sensitivity level designations for security clearances throughout the department, and conduct additional reviews every five years. STATUS Passed the House (voice vote) on 1/29/19.

H.R. 499 Service-Disabled Veterans Small Business Continuation Act, Chabot (R-OH)

SUMMARY STATUS

Would allow all surviving spouses of service-disabled veteran to retain the federal contracting preference, amending current law which allows for the contracting preference for spouses of 100% service-disabled veterans. Referred to the House Committee on Small Business 1/11/19.

SUMMARY STATUS

Would require the head of each executive agency to consider the existence of comprehensive training and education programs to develop a contractor’s workforce in the evaluation of offers for any contract in an amount greater than $25 million. Referred to the House Committee on Oversight and Reform on 1/14/19.

To require federal agencies to consider contractor training programs during contract H.R. 533 awards, Brown (D-MD)

A bill to establish the Office of Critical Technologies and Security, Ruppersberger (D-MD) H.R. 618 Would establish an Office of Critical Technology and Security in the Executive Office of the SUMMARY

STATUS

President to coordinate policy and actions that will maintain United States technological leadership with respect to critical emerging, foundational, and dual-use technologies and ensure supply chain integrity and security for such technologies. Referred to the Committees on Armed Services, Foreign Affairs & Intelligence on 1/16/19. Related bill: S.29.

Fair Compensation for Low-Wage Contractor Employees Act, Pressley (D-MA) H.R. 678 Would provide back pay to certain low-wage contractor employees from the lapse in SUMMARY

appropriations that began on December 22, 2018. STATUS Referred to the Committees on Appropriations, and Oversight and Reform on 1/17/19. Related bill: S.162

H.R. 824 Fairness for Federal Contractors Act, Norcross (D-NJ)

SUMMARY Would provide back pay to certain contractor employees from the lapse in appropriations that began on December 22, 2018. STATUS Referred to the Committees on Appropriations, and Oversight and Reform on 1/28/19.

H.R. 1016 Pay Workers What They’ve Earned Act, Horsford (D-NV)

SUMMARY Would cover certain cost incurred by federal employees and contractors as a direct result of a covered lapse in appropriations, including expenses for loans and credit cards, and any fees, fines, or interest. STATUS Referred to the House Committee on Oversight and Reform on 2/6/19. Professional Services Council

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Bill Tracker: 116th Congress-First Session (2019) H.R. 1065 Social Media Use in Clearance Investigations Act, Lynch (D-MA)

SUMMARY Would direct the Office of Management and Budget to report on the feasibility and legality of allowing the federal government to examine social media activity during security clearance investigations. STATUS Passed the House (377-3) on 2/11/19.

H.R. 1076 Fair Chance Act, Cummings (D-MD)

SUMMARY STATUS

Would “ban the box,” by prohibiting the federal government and federal contractors from requesting that an applicant disclose criminal history record information before the applicant has received a conditional offer. Ordered to be reported by the Committee on Oversight & Reform on 3/26/19. Related Bill: S.387.

H.R. 1204 OIRA Insight, Reform, and Accountability Act, Mitchell (R-MI)

SUMMARY Would codify current practices at the Office of Information and Regulatory Affairs for centralized review of regulations and expand OIRA reviews to previously excluded agencies. STATUS Referred to the Committees on Oversight and Reform, and Judiciary on 2/13/19.

H.R. 1212 Federal Contract Deadline Fairness Act, Thompson (D-CA)

SUMMARY Would prohibit agencies from including a contractor’s inability to deliver goods or complete work on schedule as a result of a lapse in federal appropriations in any past performance database. STATUS Referred to the House Committee on Oversight and Reform on 2/13/19.

H.R. 1213

Federal Contract Worker Fairness Act, Thompson (D-CA) SUMMARY Would provide that each federal contract worker impacted by a lapse in appropriations in the Federal Government shall receive compensation. STATUS Referred to the House Committee on Oversight and Reform on 2/13/19.

VA Procurement Efficiency and Transparency Act, Wittman (R-VA) H.R. 1577 Would require the Department of Veterans Affairs Secretary to record information in FPDS on the SUMMARY

amount of any cost or price savings realized by using competitive procedures in awarding such contract. STATUS Referred to the House Committee on Veterans’ Affairs on 3/6/19. Verification Alignment and Service-Disabled Business Adjustment (VA-SBA) Act, Kelly (R-MS) H.R. 1615 Would move the certification of SDVOSB applications from the Department of Veterans’ Affairs to SUMMARY

the Small Business Administration. STATUS Referred to the Committees on Small Business and Veterans’ Affairs on 3/7/19.

H.R. 1668 The Internet of Things Cybersecurity Improvement Act, Kelly (D-IL)

SUMMARY STATUS

Would require the Director of the National Institute of Standards and Technology to develop recommendations for appropriate use and management of Internet of Things devices and require OMB to issue guidance that agencies and contractors must meet based on NIST’s recommendations. Referred to the Committees on Oversight and Reform, and Science, Space, and Technology on 3/11/19. Related bill: S.734.

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Bill Tracker: 116th Congress-First Session (2019)

S. 24

Government Employee Fair Treatment Act, Cardin (D-MD)

SUMMARY Provides furloughed federal employees with back compensation for any lapse in appropriations that begins on or after December 22, 2018. STATUS Signed into law on 1/16/19; P.L.116-1. A bill to establish the Office of Critical Technologies and Security, Warner (D-VA) SUMMARY Would establish an Office of Critical Technology and Security in the Executive Office of the President to coordinate policy and actions that will maintain United States technological leadership with respect to critical emerging, foundational, and dual-use technologies and ensure supply chain integrity and security for such technologies.

S. 29

STATUS

Referred to the Committee on Homeland Security and Governmental Affairs on 1/4/19. Related bill: H.R.618.

S. 92

Regulations from the Executive In Need of Scrutiny (REINS) Act, Paul (R-KY) SUMMARY Provides that major executive branch rules shall have no force or effect unless a joint resolution of approval is enacted into law. STATUS Referred to the Committee on Homeland Security and Governmental Affairs on 1/10/19. End Government Shutdowns Act, Portman (R-OH)

S. 104 SUMMARY

STATUS

Would provide continuing appropriations to prevent a government shutdown if appropriations bills or a continuing resolution has not been enacted. The bill would reduce the appropriations by 1% after the first 120-day period and by an additional 1% for each subsequent 90-day period until appropriations legislation is enacted. Referred to the Committee on Appropriations on 1/10/19.

S. 124 Freedom to Compete Act, Rubio (R-FL)

SUMMARY Would prohibit employers covered by the Fair Labor Standards Act from using non-compete agreements in employment contracts. STATUS Referred to the Committee on Health, Education, Labor, and Pensions on 1/15/19.

S. 154

Department of Veterans Affairs Contract, Leadership, and Ensuring Accountability and Reform (CLEAR) Act, Tester (D-MT) SUMMARY Would require VA services contracts to include measurable metrics regarding cost, schedule, and fulfillment of contract requirements, and a plan of action and milestones for the provision of the service. STATUS Referred to the Committee on Veterans’ Affairs on 1/16/19.

S. 162 Fair Compensation for Low-Wage Contractor Employees Act, Smith (D-MN)

SUMMARY Would provide back pay to certain low-wage contractor employees from the lapse in appropriations that began on December 22, 2018. STATUS Referred to the Committee on Homeland Security and Governmental Affairs on 1/16/19. Related bill: H.R.678. Stop the Shutdowns Transferring Unnecessary Pain and Inflicting Damage In The Coming Years (Stop STUPIDITY) Act, Warner (D-VA)

S. 198

SUMMARY STATUS

Would automatically renew funding for federal departments and agencies, at the previous year’s funding levels, in the event of a future lapse in appropriations, with the exceptions of the legislative branch and the Executive Office of the President. Referred to the Committee on Appropriations on 1/22/19.

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Bill Tracker: 116th Congress-First Session (2019) S. 314

Modernizing the Trusted Workforce for the 21st Century Act, Warner (D-VA) SUMMARY Would require agencies to update procedures for security clearances that will help to reduce the backlog and wait times, enable better information sharing with industry, expand innovative techniques and remote technologies for investigations, and support a shift to continuous evaluation. STATUS Referred to the Select Committee on Intelligence on 1/31/19.

S. 387

Fair Chance Act, Booker (D-NJ) SUMMARY Would “ban the box,” by prohibiting the federal government and federal contractors from requesting that an applicant disclose criminal history record information before the applicant has received a conditional offer. STATUS Reported by the Committee on Homeland Security and Governmental Affairs on 4/10/19. Related bill: H.R.1076.

S. 429 Cyber Security Exchange Act, Klobuchar (D-MN)

SUMMARY Would establish a voluntary exchange program between applicable federal agencies and private sector institutions for cybersecurity positions. STATUS Referred to the Committee on Homeland Security and Governmental Affairs on 2/7/19.

S. 469 Emergency Relief for Federal Contractors Act, Cortez Masto (D-NV)

SUMMARY Would allow certain contractor employees to take penalty-free distributions from retirement accounts during a lapse in appropriations in the federal government. STATUS Referred to the Committee on Finance 2/13/19. Related bill: H.R. 766.

S. 492

Disabled Veterans Rebuilding Infrastructure to Vitalize our Economy Act, Peters (D-MI) SUMMARY Would create a goal that five percent of certain transportation spending be extended to Service- connected Disabled Veteran Owned Small Businesses. STATUS Referred to the Committee on Environment and Public Works 2/14/19.

S. 673

Expanding Contracting Opportunities for Small Businesses Act, Ernst (R-IA) SUMMARY Would raise the threshold for sole-source contracts to disadvantaged small businesses to $7 million for manufacturing and $4 million for others, and eliminate option years from the cost consideration. STATUS Referred to the Committee on Small Business and Entrepreneurship on 3/6/19. Related bill: H.R.190.

S. 734

The Internet of Things (IoT) Cybersecurity Improvement Act, Warner (D-VA) SUMMARY Would require the Director of the National Institute of Standards and Technology to develop recommendations for appropriate use and management of Internet of Things devices and require OMB to issue guidance that agencies and contractors must meet based on NIST’s recommendations. STATUS Referred to the Committee on Homeland Security and Governmental Affairs on 3/11/19. Related bill: H.R.1668.

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Technology Business Management:

The Most Important Initiative You’ve Never Heard Of! by Steve Vetter, Federal Strategist, Cisco Systems

T

echnology Business Management (TBM) is becoming increasingly important to our Federal clients. The Office of Management and Budget (OMB) is mandating the use of TBM for Federal Agency IT Budget development in its Capital Planning Guidance. Building on its initial TBM Guidance, used in preparing the FY 2019 IT Budget, OMB implemented additional guidance for FY 2020 budgets that will continue through the full IT life cycle of these investments stating that “the cornerstone of this {budget} data and Investment management strategy is the Technology Business Management Framework.” Still not convinced? TBM has been mandated in the President’s Management Agenda (PMA Cross Agency Priority Goal Number 10 – Improving Outcomes through Federal IT Spending Transparency) for enterprise-wide Federal Government adoption by FY2022 and mandatory use of all TBM Cost Pool elements for each Agency’s FY 2021 IT budget submission.

So What is TBM? Simply stated, TBM provides the means for better enterprise IT management. It is designed to deliver increased data visibility and accuracy. TBM is a value management framework coupled with a Shared Taxonomy and Translation Model to enable “value conversations” between IT, finance and business and mission leaders. TBM is often thought of as “Industry Best Practices” for running IT like a business and the 2016 Federal Commission on IT Cost, Opportunity, Strategy and Transparency Report was key to validating the value of TBM for the Federal Government, positioning it for full enterprise adoption.

TBM Emphasizes the Construct of Services. The TBM Framework’s services model focuses on using a shared Taxonomy and Translation Model that helps Professional Services Council

organizations link IT expenditures and resources to the services and mission / business outcomes they enable. The Framework’s costing allocation approach allows distribution of IT budget costs across both “Run-the-Business” and “Change the Business,” as well as any indirect costs attributable to them. The use of service metrics and KPIs enable effective, objective discussions and helps ensure consistent accountability for IT spend. This enables each service delivered by IT to produce a uniform view of performance that is easily recognizable by all agency leaders. Most importantly, these value-based, metricdriven conversations enable prioritization of investments to modernize an organization’s infrastructure and support the desired mission and business outcomes.

TBM’s Value to the Federal Government. TBM’s focus on running IT like a business provides better IT cost transparency and increased accountability of IT spend. This is crucial to driving innovation and business transformation as well as improving services to citizens and provides the means to achieve a “modernized” IT foundation that includes the capacity to conduct change on an ongoing basis. TBM’s “services” emphasis is also well suited to the government’s evolving focus on agile, DevOps and continuous improvement…not just “running the business,” but establishing the means for perpetual transformation.

Proven TBM Success in the Federal Government. The General Services Administration (GSA) started using TBM with a cost savings focus to cut 17.8% from its IT budget since 2014 (more than $100 million in recurring spend each year) and then used those savings to better prioritize IT investments. TBM has helped GSA assess the highest value investments by assessing their impact on business and missionbased outcomes. Service Contractor / Spring 2019 / 25


The Department of Education’s (DoEd) initial TBM focus was on reducing the complexity of the agency’s IT architecture. Specifically, the TBM process helped identify more than 280 IT systems across 5 different environments and 25 cloud service providers (CSPs) that supported DoEd mission outcomes.  This enabled creation of a plan to reduce fragmented and duplicative IT systems by half and reduce CSPs by 2/3rds while enabling more effective support for achieving agency mission success.

Federal TBM Playbook is Designed to Build on these Successes. The GSA and DoEd, co-agency leads for PMA Goal Number 10, recently published a Technology Business Management (TBM) Playbook, which is a how-to document aimed at helping federal agencies implement TBM’s mandated spending transparency methodology. The Playbook, based on the real world successes highlighted above, provides detailed explanations of seven key steps to help accelerate TBM in the Federal Government including: identifying key players and stakeholders; determining an agency’s current state; identifying measurable desired outcomes; aligning data; identifying insights; TBM goal education; and continued TBM implementation maturation. The Playbook is intended to help agencies, as Federal CIO Suzette Kent said, “move

26 / Service Contractor / Spring 2019

from where we are today into an environment that is aligned with our TBM goals. That’s not a simple task. It takes a lot of participation across the agency.”

Key TBM Lessons from Industry. Understanding the full costs of the holistic IT services being provided - from the allocation of cost elements (e.g., hardware, software, labor, etc.) into IT Towers (e.g., data center, end user, compute, storage, network, security, etc.) that provide the services (e.g., business application, infrastructure, platform, end user, etc.) to deliver organization mission and business capabilities - is essential to TBM success. This understanding is most effectively fostered by a collaborative CIO/CFO partnership with a shared view of all of the cost elements. Another industry-proven key is taking an “architectureled, services-driven” approach to delivering organizational IT capabilities with regular, metric driven, accountability reviews to help deliver successful savings and effective transformation. This approach enables better decisions on how to optimize and prioritize IT investments focused on the organization’s business needs and desired outcomes, thus ensuring faster deployment of needed capabilities.

Professional Services Council


What to Watch for – Keys to Long-Term Federal Transformation Success. Transformative IT TBM changes are being attempted across the evolving federal enterprise at an unprecedented scale, and the associated cultural challenges are daunting, but key to achieving IT modernization. OMB, GSA and DoEd goal leaders are producing quarterly action plans and goal updates in support of the efforts to achieve the projected TBM savings – which are expected to yield in excess of $6 billion based on current Federal Government IT spending. Continued Administration commitment, including OMB and the Executive CIO and CFO Councils, are key to achieving successful TBM implementation. One of the most important elements in delivering IT transformation is the prioritized reinvestment of TBM savings to deliver the new and evolved services necessary to produce enhanced mission and business outcomes. Will the savings

delivered by TBM to the Federal Government be reinvested to supercharge agency transformations (like GSA is doing)? The ability of TBM to produce significant, transformative IT improvements in the Federal Government has a promising outlook, but success requires continued top level leadership commitment and established processes for savings reinvestment by the agencies. 3 Steve Vetter, a Federal Strategist with Cisco Systems, is a Certified TBM Council Executive and spoke extensively about Technology Business Management during PSC’s most recent Vision Forecast Conference. Cisco Systems was one of the earliest adopters of Technology Business Management, beginning their TBM journey more than seven years ago. TBM has played a critical role in enabling Cisco’s IT modernization and transformation, culminating in receiving the TBM Council’s IT Services Transformation Award in 2017. Cisco’s CIO, Guillermo Diaz, currently sits on the TBM Council’s Board of Directors.

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Reining In the Qui Tam Bar by Lawrence S. Ebner, Capital Appellate Advocacy PLLC

False Claims Act qui tam litigation continues to be big business for the plaintiffs’ bar. According to Justice Department statistics, more than $2.1 billion of the almost $2.9 billion collected by the United States from False Claims Act settlements and judgments during FY 2018 were attributable to suits filed by individual qui tam “relators”—essentially private attorneys general authorized by the False Claims Act to file civil suits on behalf of the United States against alleged perpetrators of fraudulent payment or reimbursement schemes. Although most of the FY 2018 qui tam recoveries arose out of suits against members of the health care industry, more than $62.7 million in settlements and judgments were attributable to qui tam suits involving the Department of Defense. When all False Claims Act qui tam settlements and judgments since 1987 are totaled (the current qui tam provisions were enacted in 1986), the amount paid by DoD contractors skyrockets to almost $3.3 billion. As an incentive to prospective whistleblowers, the False Claims Act rewards qui tam relators—and by extension, their contingency-fee attorneys—with substantial bounties, ranging from 15% to 30% of settlement or judgment proceeds. During FY 2018, qui tam relator awards in connection with False Claims Act suits against DoD contractors were $14.3 million. Since 1987, relator awards attributable to qui tam suits filed against DoD contractors add up to almost $586.5 million.

The Plaintiffs’ “Qui Tam Bar” Continues to Push the Envelope

In view of the statutorily authorized pot of gold awaiting successful relators, it is no wonder the qui tam bar is continually pursuing new theories and tactics to expand the universe of False Claims Act filings against a broad range of companies, including services contractors. Each year, between 30 and 50 qui tam suits are filed against DoD contractors; since 1987, more than 1,600 such suits have been filed. Without ever having to prove their false claims allegations in court, qui tam relators and their attorneys are frequently successful in pressuring defendants to accede to substantial pretrial settlements in order to avoid the very real costs and risks (e.g., treble damages; civil penalties; reputational and com28 / Service Contractor / Spring 2019

petitive harm) of challenging even speculative or frivolous claims allegations. During the past few years, qui tam filings also have been fueled by the Supreme Court’s holding in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). Escobar holds that False Claims Act liability can be imposed where a defendant has submitted a payment claim that, by implication, knowingly fails to disclose noncompliance with any of myriad statutory, regulatory, or contractual requirements that are “material” to the government’s payment decision. Even worse, Escobar left it to the lower courts to agree (or disagree) on the meaning of materiality for false certification purposes. This lack of clarity has opened federal district courthouse doors to increasingly opportunistic qui tam filings. Professional Services Council

shutterstock.com/GRSI

Qui Tam Litigation is Booming


The Supreme Court Soon Will Be Reviewing the Qui Tam Statute of Limitations

This Spring the Supreme Court will have the opportunity to curtail qui tam gamesmanship, at least to the extent of enforcing the False Claims Act’s 6-year statute of limitations, which is based on when a relator first learns of alleged fraud. Under 31 U.S.C. § 3731(b), a False Claims Act suit, including a qui tam action, “may not be brought (1) more than 6 years after the date on which the violation . . . is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.” The issue that the Court will be deciding in Cochise Consultancy, Inc. and The Parsons Corporation v. United States ex rel. Hunt, No. 18-315, is whether the extended limitations period in § 3731(b)(2)—which is based on when a cognizant government official, not the relator, first learns of alleged fraud—can apply to the filing of a qui tam suit where the United States, as is true in the vast majority of cases, declines to intervene. In Hunt, the relator apparently filed his qui tam suit seven years after learning of a government contractor’s alleged fraud in connection with the award of a war-zone security services subcontract, but within three years of when he informed the FBI about the

alleged fraud. Following assessment of the relator’s fraud allegations, the Justice Department declined to intervene in the case. The Supreme Court granted certiorari to resolve a circuit split on the issue of whether a relator is bound by the 6-year limitations period established by § 3731(b)(1), or instead, can take advantage of the extended limitations period in § 3731(b)(2) based on when he or she informs the government of alleged fraud. Although the Eleventh Circuit held in Hunt that a relator can rely on § 3731(b) (2) even where the government declines to intervene, other circuits have held that § 3731(b)(2) applies only where the United States directly brings a False Claims Act suit or decides to intervene in a qui tam suit. The latter view is consistent with legislative history suggesting that Congress enacted § 3731(b)(2) solely for the benefit of the government, which needs adequate time to investigate False Claims Act allegations. In Hunt, the government contractor petitioners argue that allowing a relator to invoke § 3731(b)(2) “where the United States has not intervened in the case is contrary to the statute’s language, structure, purpose, and history, and would create a cascade of congressionally unintended consequences.” Petitioners’ Br. at 10. They argue, for example, that a relator could exploit § 3731(b)(2) by deliberately deferring disclosure to the government for as much as 10 years after he or she discovers the alleged fraud, and thereby allow damages for ongoing fraudulent misconduct (along with a potential relator share award) to accrue to a maximum extent. The continued page 35

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Service Contractor / Spring 2019 / 29


OTAs: Key Considerations for Stepping in the Growing Government Sandbox by Aaron Raddock, CPA, CFE, CFCM, Government Contracts National Co-Leader, BDO and Geoff Merritt, Senior Manager, BDO

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f you are on the lookout for the latest trends in government contracting, you have probably heard that Other Transaction Agreements (“OTAs”) are all the rage – for both industry newcomers and veterans, as well as some of the largest government agencies. While OTAs are not new, obligated funds have grown from roughly $600 million five years ago to almost seven times that in 2018. In contrast to what some may fear, OTAs are not a replacement tool for the Federal Acquisition Regulation (FAR), nor are they specifically designed solely for the non-traditional government contractor (NDC). In the Department of Defense (DoD), OTAs are designed to increase the speed and efficiency of getting missioncritical technology to the warfighter1. It is the comparative speed of these transactions, coupled with the freedom from competition requirements—protests generally— and the ability to permit more advantageous IP/data rights that make them so attractive to the government buyer, resulting— at least in part—in their more recent proliferation. Congress has also played a part in the dramatic uptick of OTAs by permanently codifying for DoD OTA prototype authority; broadening the use OTAs for prototypes; expanding the definition of the term “non-traditional defense contractor” to include small businesses and non-profits; making it easier to issue follow-on production contracts; and establishing an actual preference for OTAs for prototyping. The outlook for OTAs seems bright and the use of these contracts is expected to continue to grow. However, the potential shift in the federal acquisition paradigm (at least with respect to R&D and prototyping) and the varying nature of these procurements have also created several challenges for federal contractors and for government personnel. In this article, we focus on these challenges. Areas of concern include (1) the potential lack of competition in a sector where stewardship of taxpayer dollars is a cornerstone, 1

and where fraud, waste and abuse has occurred before; (2) national defense threats when accessing new organizations with entities or operations in countries like China and Russia without the typical restrictions; and (3) the risks of disputes where rules and regulations are not well-defined. In the accompanying 11 Considerations, we identify common concerns, questions and best practices as OTAs continue to expand.

Terms: Why all the FAR Clauses? – Though OTAs are not subject to the FAR, agreement officers are not precluded from using FAR clauses and since that is what they are trained in, we have seen our fair share of OTAs that do just that. Hopefully education within the government will address this over time, but until then contractors should feel empowered to help their agreement

Per 10 U.S.C. §2371, OTAs may be used to carry out “basic, applied, and advanced research projects” as well as “prototype projects relevant to enhancing mission effectiveness of military personnel and supporting platforms. 10 U.S.C. §2373 also grants OTA authority to the purchase of various supplies and equipment for experimental or test purposes.

30 / Service Contractor / Spring 2019

Professional Services Council


officer and push back where necessary. The same goes for subcontractors where primes tend to flow down their standard templates. Many of our clients find it easier to negotiate OTA awards as a prime than when in a subcontractor position. The Consortium Agreement – The terms of the OTA at the consortium level can be restrictive. As a result, some member organizations may experience less flexibility in achieving their optimal outcome using this model, thereby negating some of the OTA appeal. Before signing up, take the time to understand the general terms and conditions of being a consortium member, in addition to the terms and conditions of the OTAs under management, in order to protect your interests (e.g., what data will you provide, how can it be shared, how is it protected, fees, etc.). Defining Objectives – When the looser structure of an OTA is embraced, sometimes agreement officers have trouble defining the objectives and expected workflow of the effort. Where a stated vision and anticipated steps are beneficial, do not be shy about offering to draft this language for your customer. Without some agreement as to the goals and activities required by the OTA, the chances of a potential dispute will rise.

Proposals/Negotiations: Fast Awards, Faster Proposals – For the experienced government contractor who is used to longer lead times and slow awards, OTAs are a breath of fresh air, but also a stress on the proposal team. While OTAs are not always faster, they often are and therefore require you to plan ahead, involve leadership early, obtain necessary approvals, and engage third party consultants if needed to support surge efforts. “Significant Extent” – For DoD OTA proposals involving traditional defense contractors, clearly document the manner in which NDCs participate to a significant extent to maintain eligibility for the award and limit the required cost share. While the current guides provide examples of “significance,” there is no stated threshold to apply and agreement officers are directed to evaluate the totality of the circumstances before making a determination. Competition and Price Analysis – Current statutes permit agencies to determine what competition will look like, though it should be used to the maximum extent practical. Without it, government buyers are left with the challenge of justifying the price of innovation where market data may not yet be available. Here again, it behooves the contractor to assist the procuring official in making its determination by providing supporting information in the proposal. Intellectual Property/Data Rights – The ability to maintain proprietary IP is one of the primary draws of OTAs. However, Bayh Dole-like requirements for IP, and FAR/DFARS-esque data rights clauses, are typically the starting point for these agreements.

Professional Services Council

Know that there is some latitude in negotiating these terms and contractors should endeavor to do so where possible. Position Yourself with the RFP – Requirements often change throughout the Whitepaper and later phases of the potential OTA award process. Track these changes and respond accordingly to ensure responsiveness. Additionally, if follow-on production work is anticipated as part of the procurement objective and available via sole source methods, position yourself by ensuring such work is explicitly stated in the RFP (to avoid a sustainable protest).

The outlook for OTAs seems bright and the use of these contracts is expected to continue to grow. Post-Award: Cost Accounting – Though OTAs may not be subject to CAS, the traditional defense contractors receiving OTAs could be and must account for costs accordingly. As such, a frequent question is how to account for consortia membership and award fees. Membership fees are typically charged as allowable G&A expenses, whereas award fees may be most appropriately treated as contra-revenue accounts, decrementing revenue received and not affecting expense accounts. Feedback & Past Performance – Unlike most government contracts where unsuccessful bidders receive a debrief and successful bidders eventually have their performance captured in the Contractor Performance Assessment Reporting System (CPARS), such records are ostensibly absent in OTAs. Many market participants have complained about the lack of feedback when pursuing OTAs (though at least one consortium reportedly is addressing this). Meanwhile new market participants who develop a taste for federal awards are left without a past performance record on which to draw from in future awards. Cashflow and Resource Management – Especially for small businesses performing or pursuing OTAs, it is important to understand that these are not the more stable and predictable scopes of work the public sector is known for. Several contractors reported frequent 3-6 month extensions for prolonged research projects that led to cashflow and resource management challenges because it was unclear whether the research projects would last. OTA use is growing in popularity in DoD and across federal agencies. These eleven considerations offer valuable insight into emerging OTA use cases. Companies that come to the table with a clear understanding and a range of answers will be better able to succeed in this government sandbox. 3

Service Contractor / Spring 2019 / 31


The Value of Executive Networking by Greg Baroni, Chairman and CEO, Attain LLC, PSC Membership Chair

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f you have an interest in the government contracting industry, PSC is the best place to have an impact. Whether it’s connecting with peers at a PSC event, gathering information about the latest trends in our market, or coming together in common cause on key issues facing multiple organizations, PSC’s executive networking benefits are unparalleled. In the federal consulting market, PSC is the best association for networking, hands down. From my standpoint as CEO of a fast-growing consulting firm, networking at PSC events is a huge benefit, as it allows me to interact with my peers in an environment where we can come together on the important issues and work towards solutions together. Mid-tier firms like Attain have many similar issues that we want to see the government address to accommodate us with more of an on-ramp to becoming key players in the industry. I can—and do—share my opinions on this matter, but when it is combined with the voices of my PSC colleagues, it becomes that much more powerful and more likely to produce results that benefit all of us. Additionally, having the ability to regularly and easily meet with other CXOs in the industry is incredibly powerful. From the PSC Annual Conference to various government roundtables, PSC creates formal and informal settings to bring DMV-area leaders together. My favorite event for networking is the Annual Conference as it allows me to strengthen existing relationships and broaden my sphere of influence as I meet new people. At this event, I can zero in on my topics of interest while also getting to know

people socially and what makes them tick. There are multiple chances to network, including receptions and opportunities to dine together. An informal setting where you can share a meal with colleagues is invaluable; I find that you can have more meaningful conversations and brainstorm creative solutions when the setting is less formal. PSC gives ample opportunities for this type of high-quality, comfortable interaction that goes beyond networking—PSC creates opportunities for relationship-building. Beyond the opportunity to connect with my peers, PSC takes their networking benefits one step further by providing access to senior government officials in a less formal environment that enables candid dialogue and exchange. As a member, I am confident that PSC events garner highcaliber executives and officials, making my time spent there extremely valuable. My PSC membership serves me well as I continue to lead Attain as a built-to-last, next generation, values-driven firm. We are continually growing—adding 200 team members and 35% to our top line in the last year. For my professional network as well as my team, I look for outside-the-box thinkers with an entrepreneurial spirit and strong moral compass. PSC consistently provides me with opportunities to meet exactly these kinds of people. It is my great privilege in life to disrupt the status quo to improve the lives of those that we serve at Team Attain. PSC allows me to meet partners and colleagues that push me forward to do just that. It’s more than networking: it’s change-making. 3

Welcome New PSC First-Quarter Members! For more information on PSC membership, contact membership@pscouncil.org. 32 / Service Contractor / Spring 2019

Professional Services Council


Three Critical Elements of Successful PSC Membership Engagement by Matthew Busby, PSC Director of Membership

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f you’re a new to PSC or looking to increase your engagement, PSC’s offerings may seem overwhelming at first, but once you unpack them, they are stepping stones to a rewarding membership experience that serves you and PSC. To help you understand all that is available to you, we recommend three critical elements to aid in successful membership engagement: 1. Start with a PSC Membership Orientation or Engagement Session. They allow us to sit with you and your team to officially introduce the organization and get everyone on the same page. An engagement session is equally effective in reinvigorating engagement for veteran members, when new staff come on board or if you simply need a refresher. We’ll discuss your reasons for joining PSC, your objectives, and offer recommendations on the ways you can utilize your PSC membership to engage with our community for maximum impact. 2.Getting properly onboarded, along with orientation, establishes the framework for membership engagement. A membership orientation outlines the breadth of opportunities for members of your team, then we strategically align your staff to key engagement channels. The PSC Membership and Policy teams can make recommendations for specific committees, councils and taskforces to help you navigate the member journey, so contact us for support. Since the membership is corporate, anyone from your organization is welcomed and encouraged to participate. But, we recommend organizing your involvement into key users (C-Suite, government relations, business development, and comms/marketing leads) and staff users (other interested employees or emerging leaders from your team). Expanding

engagement in PSC to many individuals is an important step in engaging with PSC as efficiently as possible to maximize the return on your investment. You’ll also want to make sure that your personal and corporate profiles are updated with the most accurate information. PSC uses corporate-level information such as your company size and business category to develop relevant programming and communications. Updating your individual information ensures we communicate with you on topics relevant to your function and interests. 3. Communication is key to successful membership engagement. PSC relies on members to communicate their priorities and objectives to us. Many of the policy issues we address come from a groundswell of feedback we receive from you. Whether your concerns stem from a member service issue or from a policy challenge you are facing, we encourage you to bring them to our attention. This opens the door for dialogue about how we can address your specific needs as well as the needs of the broader membership. You can communicate this your challenges with us through a variety of vehicles including, contacting our executive leaders and policy team members or by discussing areas of interest during your Market and Policy Briefing. This tailored resource allows us to address your challenges amidst the budgetary, political and policy drivers impacting your work with specific agencies. The PSC staff is focused on ensuring that you receive the maximum return on your investment. As stewards of your investment, we facilitate opportunities for you to maximize participation and reinforce your partnership with PSC as your go-to association for resources, tools, and support. Activating these three elements of member engagement will go a long way in ensuring your investment in PSC returns dividends, year after year. 3

Hodgkins Consulting Michael L. Gulino

Professional Services Council

Service Contractor / Spring 2019 / 33


Event Spotlight

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Federal Law Enforcement Conference Nearly 300 attendees from government and industry participated in PSC’s second annual Federal Law Enforcement Conference— PSC’s premier event focused on the mission needs, technology, and acquisition challenges facing federal law enforcement agencies. The Feb. 26 event featured Kevin McAleenan (1) U.S. Customs and Border Protection (CBP) Commissioner, who discussed current efforts in border enforcement as well investments in border infrastructure, technology, sustainment of mobile assets, and the increasing need for medical services for people they encounter. Officials from CBP and TSA discussed the improvements to the passenger experience.

A panel of technology executives from the FBI, Interpol, and DHS discussed how biometrics, facial recognition, and rapid DNA are being utilized by law enforcement and how they are complementing their investigations. Amy Hess (2) Executive Assistant Director of the Criminal, Cyber, Response, and Services Branch at the FBI provided keynote remarks on the threats our nation faces, including those in cyberspace. The program closed out with a highly-anticipated session with FBI acquisition officials and a keynote by Ronald Vitiello, Deputy Director and Senior Official Performing the Duties of Director, ICE (3). For a full recap, visit pscouncil.org/law_enforcement.

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Federal Health Conference PSC’s annual half-day FedHealth Conference gathered 200 public health sector and industry executives to hear the latest policy and acquisition priorities in civilian and military health. The event opened with a fireside chat, featuring a panel of leaders from HRSA, CMS and the Department of Veterans Affairs (VA) (1) discussed the roles of professional service contractors in supporting major Federal policy initiatives. The event featured a fireside chat with Rear Admiral 34 / Service Contractor / Spring 2019

Sylvia Trent-Adams (2), PhD., RN, FAAN, Principal Deputy Assistant Secretary of Health at the Department of Health and Human Services. The event also featured panels on technology trends’ impact on health and government acquisition in the health care sector. PSC was honored to welcome keynote speakers Pat Flanders, Chief Information Officer of the Defense Health Agency (3) and Karen Brazell, Chief Acquisition Officer of the VA (4). Professional Services Council

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Event Spotlight Vision Strategic Planning Forum

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The 14th Annual Vision Strategic Planning Forum brought together industry strategists offering their views on how to hone corporate strategy during a period of uncertainty. PSC welcomed keynote speaker Admiral Gary Roughead (1), USN (Ret.), who discussed his role as Co-Chair of the Commission on the National Defense Strategy and offered highlights from the report. Pierre Chao (2), co-founder of Renaissance Strategic Advisors, led executive-level panels on the major challenges facing the industry and the longer-term market impact on defense, services, and technology companies. Rich McFarland (3), Vision Defense Chair, wrapped up the forum by discussing the value of the Vision Market Forecast program and encouraged PSC members to get involved by joining one of the 20+ study teams. To learn more or to join a team, contact Vision Market Forecast Director Michelle Jobse at jobse@pscouncil.org.

2 Reigning in the Qui Tam Bar from page 29

United States, through the Solicitor General, has weighed in as an amicus curiae (friend of the court), arguing that relators can rely on the extended § 3731(b)(2) limitations period even where the government declines to intervene. According to the Solicitor General, relators have substantial incentives to report fraud expeditiously, and delaying filing a qui tam suit runs the risk of being barred by an earlier relator, public disclosure of the fraud, or a False Claims Act suit filed directly by the government. Nonetheless, several amicus curiae briefs have been filed in support of the petitioners. A joint amicus brief submitted by the Professional Services Council and DRI–The Voice of the Defense Bar argues that allowing relators to take advantage of the § 3732(b)(1) extended limitations period would increase litigation costs and risks for qui tam defendants and induce more unwarranted pretrial settlements. Further, if the extended limitations period applies in nonintervened qui tam suits, discovery and other litigation burdens imposed on DoD and other departments or agencies would significantly increase. As PSC Executive Vice President and Counsel Alan Chvotkin explained in a press release, allowing qui tam relators to invoke § 3731(b)(2) “would require extensive and time-consuming discovery about what the government knew, and when it knew it.” Professional Services Council

Conclusion

Congress enacted the False Claims Act qui tam provisions to help the government root out actual false or fraudulent claims for federal payments or reimbursements. While Congress wanted qui tam relators to receive a share of settlements or judgments both as an incentive and reward, there is no indication that the filing of qui tam suits is intended to provide a bounty-hunter bonanza for ambitious relators or their attorneys. The Supreme Court should continue to decide cases, such as Hunt, which present unresolved legal questions bearing on how the qui tam process is intended to work for the benefit of the government and the public. 3�

Lawrence S. Ebner is founder of Capital Appellate Advocacy PLLC, a Washington, D.C.-based appellate litigation boutique that represents businesses and industries before the Supreme Court and federal courts of appeals in litigation involving the federal government. A graduate of Harvard Law School and a fellow of the American Academy of Appellate Lawyers, Mr. Ebner has authored amicus curiae briefs for the Professional Services Council and is the immediate past chair of the Amicus Committee for DRI-The Voice of the Defense Bar. Service Contractor / Spring 2019 / 35


2019 Key Events Federal Acquisition Conference

June 13 | 8 - 11:30 a.m. | Arlington, VA Explore the trends shaping federal acquisition policies and their effects on your business.

PSC Annual Golf Tournament

September | DMV area Join PSC members on the green for a fun round of golf, followed by a networking lunch.

Tech Trends Conference

September 16 | 8:30 a.m. - 12:30 p.m. | Washington D.C. Hear directly from senior government officials on the top IT issues facing the federal government. Get the results of PSC’s extensive survey of federal IT and cybersecurity leaders and gain valuable insights on how to help the government deliver more effective mission results.

Vision Federal Market Forecast

October 29 - 30 | Falls Church, VA PSC’s Vision Federal Market Forecast presents insights from hundreds of non-attribution interviews of government executives, think-tank experts, congressional staff and Wall Street analysts. It also provides a concise, quantifiable assessment of the budgets, programs, priorities, and issues in a rapidly changing environment.

Development Conference

December 3 | 8 a.m. - 12 p.m. | Arlington, VA This half-day conference covers the factors shaping international capacity building, shared government & international development company (IDC) objectives, and the roles and contributions of IDCs supporting U.S. government agencies’ critical missions.

View more details at www.pscouncil.org/calendar Sponsorships available for these events. Contact events@pscouncil.org for more information.

36 / Service Contractor / Spring 2019

Professional Services Council


Event Happenings

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1. More than 200 members gathered for the 2019 Vision Federal Market Forecast kickoff on March 7 in Arlington, VA. Attendees met Vision volunteers, and signed up for one or more study teams. Over the upcoming months, research teams will participate in exclusive, face-to-face meetings with government leaders, think tank experts, and Wall Street analysts to discuss issues facing the federal market, future programs and budgets. 2-3. On February 7 at the PSC office in Arlington, VA, members learned about the Industry Portal feature of Accelerate. The HHS Accelerate team, including Jose Arrieta, Deputy Assistant Secretary for the Office

Professional Services Council

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of Grants and Acquisition Policy and Accountability, discussed how the portal will revolutionize how HHS approaches acquisition and the information available to contracting officers at the time of the buy. 4-5: On January 23, members attended a roundtable discussion with Brigadier General Ross Coffman, Director of the Next Generation Combat Vehicle (NGCV). Discussion points included how AFC is reforming the Army acquisition process and how industry can posture to deliver capabilities to war fighters in the future.

Service Contractor / Spring 2019 / 37


Event Happenings

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6-7: PSC and the NCMA Woodlawn Chapter co-sponsored the CMS Reverse Industry Day on April 2. This event was to educate the CMS Acquisition workforce on topics related to the award and administration of government contracts as it relates to the CMS Contractor Community. 8. PSC’s first monthly Executive Roundtable was held on March 13 in Arlington, VA. This is a new series exclusively for senior executives of regular PSC member companies. 9. On March 4 in Arlington, VA, PSC held the Quarterly Market & Policy Briefing for members. PSC executive staff addressed and analyzed agency and market-specific drivers relevant to businesses. 38 / Service Contractor / Spring 2019

10. The PSC Veterans Affairs Task Force held a meeting on March 12 in Arlington, VA with Dr. Melissa Glynn, Assistant Secretary for Enterprise Integration (OEI). Dr. Glynn is responsible for leading efforts to improve operations of the Department including Mission Act implementation. 11. PSC’s Marketing and Communications Network hosted a GovCon media panel on April 5 in Arlington, VA. Jason Miller of Federal News Network, Nick Wakeman of Washington Technology, Carten Cordell of Washington Business Journal, and Marjorie Censer of Inside Defense and Government Matters TV discussed best practices when working with the media to maximize visibility of your company and executives.

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Profile for Professional Services Council

Service Contractor Spring 2019: Thriving in Times of Change  

The winds of change are constantly blowing across the federal acquisition community. Whether it is emerging cyber threats or changes to over...

Service Contractor Spring 2019: Thriving in Times of Change  

The winds of change are constantly blowing across the federal acquisition community. Whether it is emerging cyber threats or changes to over...