Service Contractor Magazine Summer 2020

Acquisition Policy in Times of Change

Summer 2020

ALSO INSIDE: 11

PROTECTING PROPRIETARY INFORMATION

20

DEVELOPING A CULTURE OF RESILIENCE

21

SUMMONING YOUR SUPERPOWERS

22

SHARING SECURE COMMUNICATION

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Where Information Means Insight 2 / Service Contractor / Summer 2020

www.unanet.com Professional Services Council

Summer 2020

11 PROTECTNG PROPRIETARY INFORMATION

8

21

Aquisition Policy: Can Bureaucracy Keep Pace?

4 President’s Letter

14 Policy Spotlight 15 Bill Tracker

20 Developing a Culture of Resilience

SUMMONING YOUR SUPERPOWERS

24 Business Scorecard 26 Membership Value

22

29 Member News

SHARING SECURE COMMUNICATION 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: Pheniece Jones jones@pscouncil.org

P S C S TA F F David J. Berteau President & CEO berteau@pscouncil.org Alan Chvotkin, Esq. Executive Vice President & Counsel chvotkin@pscouncil.org Cate Benedetti Vice President, Government Relations benedetti@pscouncil.org Joe Carden, CAE Vice President, Marketing & Membership carden@pscouncil.org

Professional Services Council

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

Bradley Saull Vice President, Civilian Agencies saull@pscouncil.org Matthew Busby Director, Membership busby@pscouncil.org Michelle Jobse Director, Vision Forecast jobse@pscouncil.org Cassie Katz Director, Marketing katz@pscouncil.org Andrea Ostrander Director, Events ostrander@pscouncil.org

Pheniece Jones Director, Media Relations jones@pscouncil.org Jean Tarascio Senior Manager, Events tarascio@pscouncil.org Donald Baumgart Manager, Vision Forecast baumgart@pscouncil.org Karen Holmes Office Manager holmes@pscouncil.org Christian Larsen Senior Associate, Public Policy larsen@pscouncil.org

Sebastian Herrick Senior Associate, Public Policy herrick@pscouncil.org Amanda Goff Associate, Research & Analysis goff@pscouncil.org Daniel Catlin Associate, Membership catlin@pscouncil.org Alexandra Gomez Executive Assistant gomez@pscouncil.org Allison Weinstock Associate, Digital Marketing weinstock@pscouncil.org

Service Contractor / Summer 2020 / 3

PRESIDENT ’S LETTER

W

elcome to the summer edition of Service Contractor magazine! You don’t need my words to tell you that this summer will be unlike anything we have ever seen.

While the world changes around us, the government must continue to operate key missions and functions that help keep the country running.

At PSC, our COVID-19 priorities remain: keep the entire government operating, keep contractors working, and keep you getting paid.

We continue to work with the federal government on issues ranging from access to secure facilities to securing the cybersecurity supply chain. Read more about these in Alan Chvotkin’s Policy Spotlight on page 14.

Contractors face new approaches to acquisition policy amidst uncertainties over next year’s funding in the context of a national election. I share some considerations about that in “Acquisition Policy: Can Bureaucracy Keep Pace?” on page 8.

This summer edition offers timely insights into how industry adjusts in times of rapid change.

Leo Alvarez and Jeff Clayton of Baker Tilly Virchow Krause, LLP, share insights into tracking procurement trends in supply chain management, on page 6.

Shayn Fernandez of Rockridge Venture Law highlights legal issues on Proprietary Information Deliverables in his article on page 11.

Leaders from PSC member companies give their insights into managing and leading during a pandemic, including Amentum’s Jeff Treffinger on return to work (page 20), TSI’s Shawn James on leadership and strategic thinking skills for all employees (page 21), and Lawrence Solutions’s Mitch Lawrence on access to secure facilities during COVID-19 (page 22).

PSC encourages and supports accurate, timely, and useful government agency forecasts of future contract activity. These help companies prepare and respond better, leading to more effective competition and improved results. On page 24, read more from

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PSC’s Amanda Goff on our 2nd annual PSC Federal Business Forecast Scorecard, covering 60 agencies and sub-agencies.

PSC continues to refine and create resources for our members to stay informed and engaged. Read more on page 26 from PSC’s Membership Team on the Coronavirus Resource Center on the PSC web site, PSC virtual events, and the advent of PSC online communities.

Cate Benedetti’s regular PSC legislative bill tracker is more important than ever, with its overview of key Congressional actions on COVID-19 and much more, beginning on page 15.

PSC conferences have gone virtual, with the July 13 Federal Acquisition Conference, Defense Services on August 13, FedHealth on September 15, and our annual Vision Forecast Conference in November. These provide member and non-member companies with outstanding market intelligence and policy insight while letting us reach members and their employees nationwide and around the world.

The rescheduled Annual Conference in October remains the best way to learn about key industry changes that affect us now and will shape doing business with the government in the future.

Watch the PSC Daily for updates on this in the coming weeks.

Let me close on a note of somber reality and renewed hope.

The response to the killing of George Floyd and other Black Americans feels different this time, generating needed actions to address systemic racism and other forms of discrimination throughout society. I urge you to visit our website and read my open letter to PSC members on PSC’s actions to practice and promote diversity, inclusion, and equality.

As always, I welcome your input, your feedback, and your engagement in our efforts.

David J. Berteau

Professional Services Council

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Navigating the Government Contract Compliance Landscape Since 1991 Professional Services Council Service Contractor / Summer 2020 / 5

Pressure Testing Supply Chain Management:

What Do Today’s Challenges Mean for Government Contractors?

by Jeff Clayton, Principal, Government Contractor Advisory Services and Leo Alvarez, CFCM, Senior Manager, Government Contractor Advisory Services, Baker Tilly Virchow Krause, LLP

O

ver the past year, Federal contractors have been subject to a continual and growing drum beat of regulatory measures seeking to alleviate concerns over data security and vulnerabilities in the information and communications technology (ICT) supply chain. For many, these measures had appeared as though they would crescendo with the rollout of the Cybersecurity Maturity Model Certification (CMMC) and the system-wide ban on covered Chinese equipment and sources stemming from the implementation of Section 889 of the 2019 National Defense Authorization Act (NDAA).

The coronavirus pandemic’s shift into a worldwide crisis has upended global supply chains, causing shortages in numerous critical industries - ranging from medical devices, personal protective equipment, and pharmaceuticals, to electronics and even the U.S. food supply. In response, public and private sector organizations have been compelled to focus not only on strengthening the resiliency of their supply chains, but also on improving their visibility into and understanding of the risks that they face. Amidst this backdrop, the government’s metaphorical regulatory drum has kept on beating and, to this point, has not been slowed by the pandemic.

Acquisition SCRM Requirement

Sub/Supplier Tier

In early April, DoD re-emphasized that the pandemic would not slow down the CMMC implementation. Just a few weeks later, the DHS Cybersecurity and Infrastructure Security Agency’s (CISA) Supply Chain Risk Management (SCRM) Task Force released its “SCRM Essentials” guidance to help organizations demonstrate effective business governance over their vendor management practices. In mid-May, news outlets began to report that lawmakers on Capitol Hill were reviewing legislative proposals to incentivize companies to “re-shore” their manufacturing operations to the U.S.1 And, as of this writing, industry is awaiting rulemaking related to Part B of the Section 889 implementation.2 Given the persistent threat of foreign surveillance, it should not be a surprise that the federal government has pushed on with its efforts to secure and strengthen the federal supply chain.

Notably, this underlying objective has also manifested itself in key acquisitions throughout the procurement landscape. Below is a sampling of SCRM requirements in two recent solicitations /programs that require plan development, implementation, and varying levels of assurance once contracts are awarded:

GSA Second Generation Information Technology (2GIT) BPA

DHS Continuous Diagnostics and Mitigation (CDM)

• SCRM Plan Implementation • Risk Assessment Methodology • Applicability of appropriate NIST frameworks /security controls • Protection from component substitution, functional alteration, and malware insertion • SCRM Awareness Training • Reporting

• SCRM Plan Implementation • Risk Assessment Methodology • Applicability of appropriate NIST frameworks/security controls • Supplier Management Questionnaires • Item/product family level description of product development, integration, and deployment

All Tiers; Lowest sub-component producer or manufacturer to the delivery point

Suppliers associated with all stages of System Development Life Cycle (SDLC)

https://www.reuters.com/article/us-usa-china-supply-chains-idUSKBN22U0FH. May 18, 2020.

Phase Two, slated to go into effect on August 13, 2020 is intended to prohibit the “use” of covered equipment, applications, and services by contractors.

This means that the federal government will be prohibited from contracting with organizations that use banned items or services as a substantial or essential component of any system, or as critical technology as part of any system.

1 2

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Professional Services Council

Supply chain risk management has been receiving significant focus. For companies who do business with the federal government, even those that may be several tiers down in the supply chain, it is no longer something that is nice to have or that just makes good business sense; it is becoming a necessity.

While these requirements may not be routine evaluation criteria in Federal procurements today, they offer a glimpse into how far they may reach when present. Given how critical it is to limit unsecure ICT operations within the federal supply chain and the absolute necessity to thrive in an environment of everincreasing technological threats, contractors should expect that SCRM requirements will become more prevalent in the future - especially where sensitive data is at play.

Several characteristics that contractors should take note of among these procurements, and others that we are aware of, include: • Establishing a plan to provide transparency around how a vendor will identify, analyze, and manage risks among its subcontractors and supplier base; • Identifying a plan of action to address security vulnerabilities as they arise; • Use of supplier assessments to gauge risk throughout supplier tiers; • Fulfillment of reporting obligations around SCRM practices; and, • Testing to ensure conformance against the plan and solicitation requirements.

Understanding that a contractor positioned with a secure and strengthened supply chain will be extremely valuable to the Federal Government in the future, what tangible steps should contractors consider in the short term?

• Evaluate Current Practices To address ICT supply chain risk, contractors should at the very least consider the SCRM essentials. While a somewhat basic formulation, they do outline essential actions that all contractors can evaluate with their internal procurement and subcontract management teams to determine the effectiveness of their SCRM function. Of utmost importance, contractors should take steps to map their supply chain, to the furthest extent possible, to verify the chain of custody from raw materials, to assembly of subcomponents, to the final product or application. This will also help an organization determine if there are any risky organizations in their supply chain, and also identify any areas where they may only have one supplier for a critical sub-component or item. By diversifying the organization’s sourcing of that particular item to multiple vendors, an organization can reduce the risk of a disruption should that vendor suffer from an event that would preclude them from delivering, or require remediation, exclusion, and reporting to the federal end user.

Additionally, by mapping their supply chain, contractors may be able to employ better management strategies across their supplier pool. These techniques are likely to vary by tier, as tier-one suppliers are likely to require a different kind of monitoring approach than those that are further Professional Services Council

down in the supplier ecosystem. More sophisticated and complex organizations should consider evaluating their SCRM practices to identify gaps. One option for assessing gaps is the NIST SP 800-161 (“Supply Chain Risk Management Practices for Federal Information Systems and Organizations”) framework, which seeks to align people, process, policies, procedures, and systems, so that they can work in concert to address supply chain concerns.

• Assess Vendors A sophisticated SCRM function will require the completion of supplier risk assessments for risk rating assignment (for example, low, moderate, or high), and to provide visibility into the security culture of the third party vendor. Based on the level of risk and complexity of the relationship, contractors may need to develop short-term remediation plans with critical suppliers to bring them into compliance with contractor standards.

• Update Policies and Procedures The internal control environment for federal contractors has been an area of increased scrutiny in recent years. Formal documentation of SCRM-related policies and procedures supports the internal control framework, helps establish best-in-class practices, and ensures accountability and consistency so that processes are repeatable, systematic and integrated throughout the organization.

• Monitor and Evaluate Once contractors put the necessary controls in place, they should continuously monitor their supply chain, working to identify changes or risks. Cross-functional involvement in the plan and communication across a variety of functional areas are likely to be an important component here. Technology can often be employed and serve as one component of many that will enable an organization to more efficiently identify changes and new risks as they arise. In addition to continuous monitoring of the supply chain, regular “health-checks,” or reviews of the SCRM plan, its policies and processes, and their effectiveness is considered a best practice.

Conclusion

Supply chain risk management has been receiving significant focus.

For companies who do business with the federal government, even those that may be several tiers down in the supply chain, it is no longer something that is nice to have or that just makes good business sense; it is becoming a necessity. For some organizations, it can serve as a competitive advantage. Companies should not wait for these requirements to show up in a procurement or to be included as a contractual requirement; they should be proactive in addressing these risks. They should assess their supply chains now, and develop an SCRM plan that puts the systems, policies and processes in place that will allow them to better understand their supply chains and effectively mitigate and manage risks. 3 Service Contractor / Summer 2020 / 7

Acquisition Policy: Can Bureaucracy Keep Pace?

by David J. Berteau, PSC President and CEO

B

ased on the pace and dimensions of change, it seems that federal procurement practices and procedures are in constant need of updates and improvements. In times of crisis, two competing dynamics come into play.

On the one hand, crises generate attention to problems that can lead to lasting positive changes in acquisition. Cost overruns in the 1960s led to David Packard’s concise directive on defense acquisition. Victory in World War II was in part due to American industry’s ability to shift resources to war efforts.

On the other hand, crises can expand bureaucracies and slow procurement actions. Throughout American history, crises have led to the creation of oversight bodies whose functions were often overlapping.

How are those competing dynamics playing out today? The COVID-19 crisis is in its sixth month, and there are signs of hopeful changes in Federal acquisition at the program level, the agency level, and government-wide. In addition, there are nearterm opportunities for Congress to enact changes with substantial benefits for government programs and procurement practices.

Let’s look at a number of examples.

Teleworking

Until mid-March, many federal agencies were reducing or limiting teleworking for federal civilian workers. For contractors, many contracts were silent on the issue. Under the theory that actions not explicitly permitted are banned, that silence was generally interpreted to mean teleworking was not authorized under the contract.

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This became a problem as COVID-19 meant that federal workers were sent to work from home but contractors were not eligible for the same actions. PSC urged the Office of Management and Budget (OMB) to encourage maximum teleworking by contractors. Comprehensive guidance was issued on March 20, 2020. The speedy response and quick action in a time of crisis is noteworthy, but that’s not the only example.

Mobile-Ready Workers

Many government contractors have been able to shift work from federal facilities to remote locations, but others still need to be on site. Parts cannot be repaired over the internet, and access to classified systems and data is often limited. Health and safety guidelines, coupled with closures of government facilities and state-wide activity restrictions, meant service contractors could not perform their missions.

That March 20 OMB memo also encouraged agencies to reimburse contractors for the cost of keeping skilled workers and key personnel on the payroll even if they could not access their worksites. A memo was not enough, however. PSC worked with federal agencies and Congress to produce needed authorities in law, leading to Section 3610 of the CARES Act, signed on March 27 of this year.

Laws rarely self-implement, and 3610 is no exception. Federal agency guidance has been insufficient and inconsistent. As a result, PSC has pursued better guidance from agencies while seeking clarifying statutory language from Congress.

Professional Services Council

The Speed of Bureaucracy

The federal government usually takes months to craft and issue guidance. Part of that time is spent in issuing a draft for public comment, allowing perhaps 60 days for such comments to be written and submitted, then taking additional months to adjudicate comments and revise guidance documents. Under COVID-19, time has been cut, but comments have still been sought and incorporated.

For example, on May 18 the Department of Defense (DoD) issued a draft of its guidance memorandum for reimbursement under Section 3610 (mentioned above). It granted three days for industry comment, and PSC submitted a 12-page letter on May 22. While this time is exceedingly short, past practices often provided no comment opportunities at all. At least for once, speed won out over bureaucracy.

Improved Communications

From the first week of government-wide COVID-19 retrenchments, it was apparent that existing government-industry communications mechanisms would not be timely or robust enough. Beginning with DoD on March 17, agencies began to conduct regular update phone calls with trade associations, including PSC. Nearly four months later, many of these calls still take place, with civilian agencies as well as DoD and the intelligence community.

These regular calls enable our member companies to raise issues through PSC, often anonymously, and agencies respond quickly when they can. We have had issues resolved in the time it takes for a single call. These means of communications and issue response, to us, warrant continuation in normal times as well as during crises.

Continuing Concerns

The above successes in process and issuances are still the exception. While agency officials can be responsive, program offices continue to move at their own pace. Ordinary inertia has joined with COVID-19 impacts to add delay to ongoing procurements, slowing the obligation of necessary funds. The absence of publiclyavailable data on procurement administrative lead times (PALT) makes it harder to track. (Though Congress mandated such data by law years ago, agencies have yet to fully comply, leaving PSC and our member companies to rely on anecdotes.)

Federal agencies, program offices, and facilities have begun the process of returning workers to offices and other workspaces. These processes have been marked by unclear (and sometime unavailable) guidance, few clear standards, and a lack of attention to impacts on contractors. PSC has highlighted these shortfalls to agencies and suggested corrections that can be made, but what’s needed here is broad guidance that applies government-wide. Leaving return-toProfessional Services Council

work to the determination of individual programs or contracting officers will produce uncertainty and inefficiencies at best.

Congress Needs to Act

The Congress has several key roles to play. As PSC’s Alan Chvotkin notes in this issue’s Policy Spotlight, there are encouraging signs that Congress will mark up appropriations bills for FY21. PSC continues to urge enactment of those appropriations on time, in advance of the start of the new fiscal year on October 1, though election-year politics may mean the return of yet more rounds of debilitating continuing resolutions.

Congress could help even more by extending the life of FY20 funds which expire in less than three months. COVID-19 delays mean that making funds available past the end of the fiscal year would be one of the wisest actions Congress could take this year. It should apply government-wide, requires no new funds, and would support agency work to counter COVID-19. Perhaps most importantly for government programs and the contractors who support them, it would reduce the uncertainty that all agencies would face in the event FY21 begins under a Continuing Resolution.

Focus on Results

Perhaps the greatest potential benefit from acquisition policy responses to COVID-19 is the opportunity for the federal government to expand and strengthen its attention to procuring service contracts that produce results. Too many contracts focus in inputs, defining labor categories and specifying labor hours in tasks that would be better aimed at defining desired results and measuring outcomes.

PSC members have reported instances of change on this.

Agencies whose support workers are no longer at the next desk need improved ways of assigning tasks and seeing results. These steps should be expanded and strengthened.

Program requests for information (RFIs) and for proposals (RFPs) can change to define needed results and evaluate bids based on the ability of bidders to produce those results. We know from experience that when agencies do this, contractors deliver better outcomes, often at less cost and faster.

In addition, agencies under COVID-19 have accelerated the adoption and promulgation of new technologies and the accompanying infrastructure. The next edition of PSC’s Service Contractor will take a deeper look at some of those efforts and their positive results.

The Better Way Forward

The uncertainties of COVID-19 make it hard to see the near future, but if federal agencies can combine speed of action with an expanded focus on results and outcomes, the benefits will extend far. At PSC, we will work to help in every way we can. 3 Service Contractor / Summer 2020 / 9

E T A D W E N D! E C N U O ANN

October 21 – 23, 2020

Greenbrier • West Virginia

A letter from Bill Vantine, Chair of the Annual Conference Planning Committee These days we are all pressing pause on our traditional nature of assembly in order to support the health and wellbeing of ourselves and those around us. As such, the 2020 PSC Annual Conference, originally scheduled to take place at the end of April, will now take place October 21-23 at the Greenbrier.

ANNUAL CONFERENCE FP AD

The efforts of our planning committee over the past seven months do not go unnoticed nor without gratitude. The agenda we have worked hard to put together remains compelling and the challenges we face in our current environment may give us new critical issues to address.

While we all continue to focus on our social responsibility of flattening the curve, let’s also look forward to assembling once again as industry leaders, colleagues, and friends of the PSC community.

More information about the 2020 PSC Annual Conference can be found at www.pscouncil.org/annual.

Stay safe and healthy, and I look forward to seeing you in October.

Bill Vantine Chair, Annual Conference Planning Committee CEO, Systems Planning & Analysis

Learn more at www.pscconference.org

Protecting Proprietary Information in the World of Public Procurement

by Shayn Fernandez, Corporate, Technology, and Government Contract Attorney, Rockridge Venture Law

shutterstock.com / Photon Photo

A

s the government increases its demand for innovative technical solutions, companies are increasingly reliant on highly skilled personnel to deliver these solutions.

Obtaining and retaining key personnel, however, is no small task and contractors must comply with a complex regulatory scheme in which protecting intellectual property and unfair competition is difficult, prohibited, or unclear. This complexity, coupled with the lack of uniformity on the enforceability of protective measures, has caused some to forego protection entirely and others to charge full steam ahead even without direction. Neither approach is recommended.

In competitive procurement, a contractor’s demonstration of superior technical skill often separates an awardee from a disappointed bidder. A contractor must differentiate itself from competitors, often through trade secrets. Generally, trade secrets are technical, financial, or business information that has economic value from not being known to outsiders.

As the name suggests, trade secrets must be kept secret and a contractor must take steps to protect them from disclosure. A competitor’s use of another’s trade secrets may not, however, be enough to sustain a protest.1 Often, disclosure occurs when a former employee joins a competitor and releases that information in performance of his or her everyday tasks. This is particularly important to contractors, who tend to see a heightened level of employee turnover due to the unique regulatory scheme, which, in turn, increases the risk of disclosure. If a contract calls for the delivery of vital services, the government can require an incumbent to allow certain employees to remain on a successor contract even when the successor (and new employer) is a competitor.2 Additionally, FAR 52.203-6 restricts agreements that impede a subcontractor from selling directly to the Government on

items offered under the subcontract. Maintaining a competitive advantage is not the only situation in which a contractor must restrict disclosure. A contractor may be required to limit disclosure when classified information is covered by the International Traffic in Arms Regulations (“ITAR”), the violation of which may result in fines up to $1 million per violation, debarment, or even 20 years imprisonment. Given these concerns, contractors often seek to limit unfair disclosure and competition through restrictive covenants (e.g., nondisclosure, non-solicitation, and non-compete agreements).

1 See DynCorp Int’l, LLC v. U.S., 757 F. App’x 927 (Fed. Cir. 2018) (https://law.justia.com/cases/federal/appellate-courts/cafc/18-1209/18-1209-2018-12-10. html). December 10, 2018.

2 FAR 52.237-3 (https://www.law.cornell.edu/cfr/text/48/52.237-3). Note, that this is different from FAR 52.222-17, which was revoked by Executive Order 13495. July 25, 1997.

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Simply requiring personnel to sign sweeping restrictive covenants, however, is not the answer. To the contrary, overly broad prohibitions may run afoul of federal and state law.

For instance, the FAR prohibits contractors from binding employees or subcontractors to agreements that could be read to restrict the lawful reporting of waste, fraud, or abuse related to contract performance; a violation of which could make an offeror ineligible for award and potentially subject to False Claims Act liability.3 Blanket prohibitions may also violate the National Labor Relations Act, which provides employees with the right to discuss the terms and conditions of their employment with co-workers and union representatives. State law is ever-changing and varies. Virginia recently enacted legislation subjecting employers to liability for including restrictive covenants in agreements with certain employees.

State law also often requires a showing of a legitimate business interest and that the restriction is “reasonable” in time, territory, and topical scope. Although contractors generally have a legitimate business interest in protecting their proprietary information and relationships with personnel, customers, and vendors, this interest must, nonetheless, be balanced against the government’s interest in access to solutions and services and the interest of those subject to the restriction.

Balancing these interests results in a fact-intensive analysis and a contractor is more likely to prevail when the restriction is specifically tailored to the nature and needs of the business.

In Omnisec Int’l Investigations, Inc. v. Stone,4 a Virginia court addressed the enforceability of restrictive covenants imposed by a government contractor on a former employee when the former employee joined a competitor and allegedly brought proprietary information along for the ride. In this case, the agreement provided for: (i) non-disclosure of confidential and proprietary information in perpetuity, (ii) non-solicitation of employees and customers for one year, and (iii) noncompete in perpetuity. The court held the non-disclosure and non-solicitation provisions were enforceable, while the non-compete provision was unenforceable. Specifically, the non-solicitation was reasonable because it was for a limited time period and only applied to the federal agencies in which the former employee was directly involved. Despite being perpetual and covering “any and all confidential and/ or proprietary information,” the non-disclosure provision was reasonable because it did not impede the former employee’s 3 4 5

ability to earn a living. The non-compete provision, however, was unenforceable because it was not narrowly tailored to prohibit future employment with identifiable persons and for a fixed period.

The Virginia Supreme court has undertaken a similar analysis in evaluating restrictive covenants on subcontractors.

In Preferred Sys. Sols., Inc. v. GP Consulting, LLC,5 a subsubcontractor promised not to enter into an agreement with the plaintiff ’s prime contractor directly, or with a competitor offering similar support as the plaintiff, or for one-year after termination of the subcontract. The court found that the noncompete provision was enforceable because it was narrow in time and applied only to a program with a specific agency.

Moreover, the court noted that the lack of geographical limit was not fatal because it only applied to specific projects.

As these cases show, restrictive covenants are not per se unenforceable, even for government contractors. Instead, courts may enforce provisions that are reasonable in time, territory, and topic, such as those that apply to high-level employees, for relatively short periods (e.g., one-year), and are tied to an identifiable group of customers or projects.

Ultimately, the company must show that it has a legitimate business interest in imposing the restrictive covenants, which is strengthened when the restrictions are part of a comprehensive and tailored plan to protect proprietary and confidential information and relationships.

Given the indefinite and intangible form of proprietary information and the prohibition on blanket non-disclosure, protecting proprietary information cannot be achieved in a vacuum. Instead, the protection must be tailored to the business involved and be part of a comprehensive plan to protect other forms of intellectual property. The protected information must be broad enough to cover the various forms in which such information may be disclosed to personnel (e.g., documents, emails, oral communications) and also enumerate the type of information that is considered confidential, while also tailored for enforceability and legality. Although it is best to require personnel to execute these agreements at the start of their employment, that is not always possible. Depending on state law, getting agreement from an existing employee may require additional consideration beyond just continued employment. 3

FAR 52.203-19 (https://www.law.cornell.edu/cfr/text/48/52.203-19). January 13, 2017.

Omnisec Int’l Investigations, Inc. v. Stone, 101 Va. Cir. 376 ( Mar. 26, 2019) (https://casetext.com/case/omnisec-intl-investigations-inc-v-stone).

284 Va. 382, 732 S.E.2d 676 (2012) (https://www.leagle.com/decision/invaco20120914f53). September 14, 2012.

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Policy Spotlight

PSC is Ready for “Regular Order”

by Alan Chvotkin, PSC Executive Vice President and Counsel

appears unlikely that Congress will complete work on all of the appropriations bills by the October first deadline, so a Continuing Resolution is almost inevitable.

On the regulatory side, we are asking for, and are expecting, a new wave of essential acquisition-related regulations to be issued. awaiting action. First are the rules relating to the implementation of “Section 889(B)” – referring to that section of the FY19 NDAA that prohibits the government from doing business with any contractor that uses certain telecommunication or video surveillance equipment provided by certain Chinese companies in their business operations – unrelated to the performance of government contracts.

That portion of the law takes effect on August 13, 2020, and agencies and contractors need the regulations to understand the scope of definitions, what the term “use” means, and how other provisions are to be interpreted so as to know how to comply with them. For almost a year, PSC has been asking for proposed rules to be published for comment.

Next, we are still waiting for OMB to clear a proposed DFARS rule to further implement the DoD Cybersecurity Maturity Model Certification (CMMC) program; that rule has been awaiting OMB action for almost two months. While continued on page 23

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Professional Services Council

shutterstock.com / Maradon 333

T

he coronavirus pandemic is still having a significant effect on our Nation’s population and on the business community. The Federal contractor community has not been immune to either the personal impacts that the virus has had on its workforces and families or on the business impacts of the marketplace.

To their credit, Federal agencies have worked diligently to maintain their mission focus and most contractors have used a wide range of alternative strategies to keep employees employed and engaged. Yet more remains to be accomplished legislatively, regulatorily and administratively to continue the response and the recovery. PSC is continuing our advocacy to fulfill our COVID-19 priorities: (1) keep the government working; (2) keep contractors working; and (3) ensure contractors are paid for the work they do.

It is possible that the Senate will act on another round of COVID-19 response legislation, building on or significantly changing the May House-passed version called the “HEROES Act.” Yet there are encouraging signs of the “return to regular order.”

From the Congressional side, the Senate Armed Services Committee approved its version of the FY 21 National Defense Authorization Act (NDAA) and the Senate has already started debating that bill. The full House Armed Services Committee completed its markup on their version of the bill on July 1, 2020, with full House consideration a top priority after the House returns from the July 4th recess.

The Senate Intel Committee has completed action on its version of the FY21 Intel Authorization Act, and the bill was adopted as an amendment to the Senate NDAA. Of note, based on our continued work with these committees over the last several months, we have been successful in having provisions to benefit contractors in each of these bills, with additional opportunities yet ahead. We have detailed those accomplishments for our members through our regular communications channels.

In mid-July, the House Appropriations Committee will finally begin marking up the FY21 Appropriations acts and bringing those bills to the House floor. While enacting all of the appropriations acts before the start of the fiscal year on October 1st has been a high priority for PSC, it

Bill Tracker: 116th Congress-Second Session (2020)* NEW

Newly introduced since last issue

Major action taken since last issue

Bill became law since last issue

H.R. 266 Paycheck Protection Program and Health Care Enhancement Act, McCollum (D-MN)

SUMMARY Provided additional funding for small business loan programs, including the Paycheck Protection Program, as well as new funding and authorities for health care providers, and COVID-19 testing.

STATUS Signed into law on 4/24/20; P.L. 116-139.

Protecting Business Opportunities for Veterans Act, Bergman (R-MI)

H.R. 561

SUMMARY

STATUS

Would apply certain small business subcontracting limitations to contracts that the Department of Veterans Affairs awards to a small business concern owned and controlled by a veteran or a veteran with a service-connected disability.

Passed the House (voice vote) on 2/25/20. Related Bills: S.3282.

H.R. 748 Coronavirus Aid, Relief, and Economic Security (CARES) Act, Courtney (D-CT)

SUMMARY

STATUS

Authorizes $2 trillion in funding and makes policy changes in response to the COVID-19 (i.e., coronavirus disease 2019) outbreak and its impact on the economy, public health, state and local governments, individuals, and businesses.

Signed into law on 3/27/20; P.L. 116-136.

SUMMARY

STATUS

Would provide certain acquisition authorities for the Under Secretary of Management at DHS, including designates the USM as the Department’s Chief Acquisition Officer responsible for approving, pausing, modifying, or canceling major acquisition programs.

Passed the House (380-4) on 2/10/20.

H.R. 3413 DHS Acquisition Reform Act, Crenshaw (R-TX)

H.R. 3763 Promoting United States International Leadership in 5G Act, McCaul (R-TX)

SUMMARY Would direct the President to establish an interagency working group to provide assistance and

technical expertise to enhance U.S. leadership in international bodies that set standards for 5th and

future generations of mobile telecommunications (5G) technology.

STATUS Passed the House (voice vote) on 1/9/20.

H.R. 3941

FedRAMP Authorization Act, Connolly (D-VA)

SUMMARY Would codify the Federal Risk and Authorization Management Program within GSA and make

certain changes designed to enable the government to better leverage cloud computing services.

STATUS

Passed the House (voice vote) on 2/5/20.

Congressional Budget Justification Transparency Act, Quigley (D-IL)

H.R. 4894

Would require federal agencies to make budget justification materials available to the public.

SUMMARY

STATUS

Ordered to be Reported by the House Committee on Oversight and Reform on 3/4/20. Related Bills: S.2560.

Secure and Trusted Communications Networks Act, Pallone (D-NJ)

H.R. 4998

Would require the Federal Communications Commission (FCC) to publish a list of companies SUMMARY

STATUS

deemed by federal authorities as posing national security risks to telecom networks and prohibits federal funding to purchase, rent, lease, or otherwise obtain any covered communications equipment or services from companies on that list.

Signed into law on 3/12/20; P.L. 116-124.

*The bill tracker as of July 2020 represents the activities from the 2020 Congressional session. Please refer to the bill tracker in the Spring 2020 issue of Service Contractor for last year’s actions and other pending bills.

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Service Contractor / Summer 2020 / 15

Bill Tracker: 116th Congress-Second Session (2020) NEW

Newly introduced since last issue

Major action taken since last issue

Bill became law since last issue

H.R. 5130 Capturing All Small Businesses Act, Veasey (D-TX)

SUMMARY Would double the lookback period for small businesses that use the employee-based size standard from 12 to 24 months for manufacturing companies.

STATUS

Passed the House (voice vote) on 1/8/20.

Opportunities for Small Businesses Act, Hagedorn (R-MN) H.R. 5146 Unlocking Would require contracting officers to consider the past performance of a joint venture when SUMMARY

evaluating a participant’s offer for a federal prime contract.

STATUS Passed the House (voice vote) on 1/8/20.

Security Acquisition Professional Career Program Act, Titus (D-NV) H.R. 5822 Homeland Would require the Department of Homeland Security to establish a career program to develop a SUMMARY

cadre of acquisition professionals.

STATUS Ordered to be reported by the House Committee on Homeland Security on 2/12/20.

Modernization Centers of Excellence Program Act, Khanna (D-CA)

H.R. 5901

Would require the General Service Administration’s Technology Transformation Services to SUMMARY

establish a Modernization Centers of Excellence Program to facilitate the adoption of modern technology by executive agencies.

STATUS Referred to the House Committee on Oversight and Reform on 2/13/20.

Coronavirus Preparedness and Response Supplemental Appropriations Act, Lowey (D-NY)

H.R. 6074

Provides $8.3 billion in emergency funding for federal agencies to respond to the coronavirus SUMMARY

outbreak.

STATUS Signed into law on 3/6/20; P.L. 116-123.

The Families First Coronavirus Response Act, Lowey (D-NY)

H.R. 6201

SUMMARY Provides paid sick leave, tax credits, and free COVID-19 testing; expands food assistance and unemployment benefits; and increased Medicaid funding in response to the COVID-19 outbreak.

STATUS

Signed into law on 3/18/20; P.L. 116-127.

H.R. 6307 Easing Disruption for America’s Small Contractor Act, Houlahan (D-PA)

SUMMARY

STATUS

NEW

Would provide small business government contractors with additional time to meet contract obligations if there is a delay or interruption by the small business contractor employees’ inability to access Government facilities, systems, or other Government-provided resources due to restrictions related to COVID–19.

Referred to the House Committee on Small Business on 3/19/20.

Contractor Stability Act, Veasey (D-TX) H.R. 6320 Small Would raise the caps on sole-source contracts for each category of small business concerns for the NEW

SUMMARY

remainder of the fiscal year.

STATUS Referred to the House Committee on Small Business on 3/23/20.

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Professional Services Council

Bill Tracker: 116th Congress-Second Session (2020) NEW

Newly introduced since last issue

Major action taken since last issue

Bill became law since last issue

National Defense Authorization Act for Fiscal Year 2021, Smith (D-WA)

H.R. 6395 Would authorize appropriations and policy for fiscal year 2021 for the Department of Defense.

SUMMARY

This bill includes funding levels requested for DoD and policy changes affecting contractors.

STATUS Passed by the House Committee on Armed Services on 7/1/20.

Opportunities to Vanquish Infectious Diseases (COVID) Research Act, Lucas (R-OK) H.R. 6599 Computing Would establish an interagency working group to coordinate federal activities concerning

NEW

SUMMARY

emerging infectious disease prediction and forecasting and requires the group to identify challenges in predicting outbreaks and develop a strategic plan to address them.

STATUS Referred to the Committees on Energy and Commerce, and Science, Space, and Technology on 4/23/20.

Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, Lowey (D-NY)

H.R. 6800 Authorizes $3 trillion in funding and makes policy changes in response to the COVID-19 (i.e.,

SUMMARY

coronavirus disease 2019) outbreak and its impact on the economy, public health, state and local governments, individuals, and businesses.

STATUS Passed by the House (208-199) on 5/15/20.Â

H.R. 6978 Endless Frontier Act, Khanna (D-CA)

SUMMARY

STATUS

NEW

Would establish a new Directorate for Technology in a restructured National Science and Technology Foundation to focus on emerging technologies and authorize $100b over five years for artificial intelligence, 5(G), cybersecurity and other technologies.

Referred to the House Committee on Science, Space, and Technology on 5/22/20. Related bill: S.3832.

H.R. 7010

Paycheck Protection Program Flexibility Act, Phillips (D-MN) SUMMARY Modifies the small business Paycheck Protection Program to provide more time for participants to use

the loans and allows the loans to be used for additional expenses.

STATUS Signed into law on 6/5/20; P.L. 116-142.

Evaluating Disparities and Outcomes of Telehealth During the COVID-19

H.R. 7078 Emergency Act, Kelly (D-IL)

SUMMARY

STATUS

NEW

Would direct the Secretary of Health and Human Services to compile and report to Congress on telehealth practices during the COVID-19 emergency, including nationwide data on the number of telehealth visits, the health care facilities providing telehealth services, what services patients received and other information.

Referred to the Committees on Energy and Commerce, and Ways and Means on 6/1/20.

S. 893

Secure 5G and Beyond Act of 2020, Cornyn (R-TX)

SUMMARY Would require the President, in consultation with relevant federal agencies, to develop (1) a strategy

to secure and protect U.S. fifth and future generations (5G) systems and infrastructure, and (2) an implementation plan for the strategy.

STATUS Signed into law on 3/23/20; P.L. 116-129. Related bill: H.R. 2881.

DIGIT Act, Fischer (R-NE)

S. 1611

Would take steps to help develop a national strategy to encourage the development of the Internet of SUMMARY

Things (IoT).

STATUS Passed the Senate on 1/8/20.

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Service Contractor / Summer 2020 / 17

Bill Tracker: 116th Congress-Second Session (2020) NEW

Newly introduced since last issue

Major action taken since last issue

Bill became law since last issue

S. 2336

Department of Veterans Affairs Information Technology Reform Act, Tester (D-MT)

SUMMARY Would improve the management of information technology projects and investments of the

Department of Veterans Affairs.

STATUS Reported by the Committee on Veterans Affairs on 2/13/20.

S. 2560

Congressional Budget Justification Transparency Act, Peters (D-MI)

SUMMARY Would require federal agencies to make budget justification materials available to the public.

STATUS Reported by the Committee on Homeland Security and Governmental Affairs on 3/2/20. Related bill: H.R. 4894.

Protecting Business Opportunities for Veterans Act, Cassidy (R-LA)

S. 3282

Would apply certain small business subcontracting limitations to contracts that the Department of SUMMARY

Veterans Affairs awards to a small business concern owned and controlled by a veteran or a veteran with a service-connected disability.

STATUS Referred to the Committee on Veterans Affairs on 2/12/20. Related Bills: H.R.561.

Fair Pay and Safe Workplaces Act, Smith (D-MN)

S. 3448 Would impose new requirements on federal contractors and their workplaces, with regard to labor

SUMMARY

standards and working conditions.

STATUS Referred to the Committee on Health, Education, Labor and Pensions on 3/11/20.

S. 3712

The Cybersecurity Competitions to Yield Better Efforts to Research the Latest

Exceptionally Advanced Problems (CYBER LEAP) Act, Wicker (R-MS)

SUMMARY Would require the Department of Commerce to establish national cybersecurity grand challenges to

achieve high-priority breakthroughs in cybersecurity.

STATUS Ordered to be reported by the Senate Committee on Commerce, Science, and Transportation on 5/20/20.

Endless Frontier Act, Schumer (D-NY)

S. 3832 Would establish a new Directorate for Technology in a restructured National Science and Technology

NEW

SUMMARY

Foundation to focus on emerging technologies and authorize $100b over five years for artificial intelligence, 5(G), cybersecurity and other technologies.

STATUS

Referred to the Committee on Health, Education, Labor, and Pensions 5/21/20. Related bill: H.R.6978.

National Defense Authorization Act for Fiscal Year 2021, Inhofe (R-OK)

S. 4049 Would authorize appropriations and policy for fiscal year 2021 for the Department of Defense,

SUMMARY

including provisions that impact the acquisition process and the contractor community.

STATUS Passed by the Senate Committee on Armed Services on 6/10/20. Related bill: H.R.6395.

Intelligence Authorization Act for Fiscal Year 2021, Rubio (R-FL)

S. 3905 Authorizes appropriations for the intelligence community’s programs for Fiscal Year 2021 and includes

SUMMARY

policy provisions that impact the Intelligence Community contractor workforce.

STATUS Reported by the Select Committee on Intelligence on 6/17/20. Text included as an amendment in S. 4049, the Fiscal Year 2021 National Defense Authorization Act.

18 / Service Contractor / Summer 2020

Professional Services Council

+ E T A NEW D !

L A U T R I NOW V

Sept. 15, 2020 8:30 a.m. - 1 p.m. EST Virtual Discover the Policy and Acquisition Priorities in Civilian and Military Health The fourth annual PSC Federal Health Conference will bring senior executives from across industry and government together virtually to discuss critical policy and acquisition priorities in civilian and military health. Speakers from HHS, VA, and DoD will discuss their needs and challenges so that industry can better determine where the federal health market is headed. This half-day conference will be your opportunity to engage with senior government leaders on federal health priorities, future policy and procurement trends and their implications on your company.

Featured Keynote Speakers Dr. Richard A. Stone Executive in Charge, Veterans Health Administration

Dr. Barclay Butler Assistant Director-Management and Component, Acquisition Executive, DHA

Register at www.fedhealthconference.org

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Service Contractor / Summer 2020 / 19

Developing a Culture of Resilience to Successfully Manage the Next Crisis

by Jeff Treffinger, Senior Vice President of Environmental, Health and Safety (EHS), Amentum

A

s we progress through various stages of reopening, more people are returning to the workplace. There has been much discussion both within government and within the government contracting community about when and how to reopen offices, and how to best protect workers as they return.

Some workers, particularly those supporting critical missions in government and in the private sector, continued to work safely throughout the early months of the COVID-19 pandemic. What enabled these organizations to continue the mission without seeing outbreaks among their workers? What lessons can we take away from this experience as we prepare for the next crisis? To answer these questions, we must first define what success looks like.

What defines success?

Practice how you fight

Our military partners know the value of exercising their people and processes; it is no less important for those of us who partner with the government to do the same. Exercise can address all types of crises, ranging from a security breach to a hazardous material incident to a global pandemic.

Although it’s impossible to practice every scenario in the field, companies should set aside time to convene key decision makers to work through crisis scenarios that could occur within normal operations. In addition to identifying what to do, these types of activities better position the organization to respond to any emergency, even those that could not be predicted, ultimately establishing a culture of resilience.

Successful continuity of operations during a pandemic must include several key elements. First, essential operations such as those supported by the Defense Industrial Base must be able to continue as needed. Some of these might include operations and maintenance or security functions. For highhazard work that is suspended, it must be able to successfully restart without incidents.

Second, the organization must stay true to its values and priorities and maintain focus on the overall business strategy or mission initiatives. Highly successful organizations will use the crisis as a catalyst to innovate and optimize traditional standard business practices. In all cases, the health of workers must be protected, so the infection rate must be kept low.

The X factor: Leadership

The key ingredients

A culture of safety

Prior to the emergence of COVID-19, successful organizations had protocols already in place. For those that had a standard pandemic response plan, it took less time to create a tailored COVID-19 response. A strong culture of safety and occupational and public health expertise enabled swift implementation of calculated safety protocols at these companies.

Organizations that could quickly pivot had the ability to make necessary changes and had an immediate advantage. Early and consistent communication between leaders anticipated these needs, such as increasing VPN bandwidth, to enable the shift to telework. By allowing work to continue, organizations were able to lessen the impact to their bottom line.

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Resilient leaders facilitate decentralized decision making, resulting in speed and agility within the ranks. Agile organizations will also be more adept at quickly integrating company, customer and facility requirements, furthering their ability to operate throughout the crisis.

For weeks, COVID-19 was the topic of almost every news story. Our people were continually bombarded with messages about the pandemic, and the result for many was fear. In this environment, direct communication from leaders to employees was more important than ever; frequent messages from company leaders set successful organizations apart in this crisis situation – even when we didn’t have all the answers.

Amentum had a strong focus on safety well before the emergence of the coronavirus, largely due to the nature of our work. We support high-hazard, high-consequence, operations.

From this vantage point, we see the factors that separate organizations that successfully continued operations during COVID from those that were more heavily impacted. By having crisis protocols in place, by practicing scenarios, and by engaging in frequent leader communications with employees, Amentum has built up resilience within our organizations over time. As we return to facilities and settle in to the new “normal,” companies should refocus efforts on those activities that will improve their odds for success when the next crisis emerges. 3 Professional Services Council

Summoning Your Superpowers for the Post-Pandemic Future and Beyond

by Shawn James, President, Transformation Systems, Inc.

shutterstock.com / Xavier Gallego Morell

T

he COVID-19 pandemic and recent social unrest have fundamentally changed the way the professional services industry and our government clients operate. While leaders try to anticipate the post-pandemic business drivers, the future remains unclear amid concerns of economic uncertainty, a potential second wave of the virus, and untold social parity measures. What is clear is that we cannot simply revert to the old normal; instead we must reinvent our businesses for the next normal. When we face extraordinary circumstances, it is always transformative. Whether we intend to transform or not, it happens naturally to everyone in every facet of an organization.

This transformation is an opportunity that can be channeled to make us better leaders, be more mission-oriented employees, and become superhero-like as the best, strongest version of ourselves.

Individual behaviors and organizational mindsets can help each of us summon our superpowers and reinvent our futures to achieve success.

Our team at TSI has found that people who succeed in uncertain times and bring about remarkable results in their business endeavors and in their personal lives attain mastery in four specific areas. We’ve rolled these concepts out across the Navy’s acquisition workforce of ~65,000 public servants as part of our LEAP (Leadership Effectiveness and Potential) Program and observed similar positive trends that result in higher employee morale, more engagement and higher productivity.

These are quantifiable results that can be measured by either the Federal Employee Viewpoint Survey for government employees or by your organization’s climate assessment.

These four masteries are more important now than ever.

You, too, can tap into your “superpowers” and motivate those around you with the following masteries: 1. Personal Mastery: cultivating commitment, curiosity, and courage. Commitment to your goals. Curiosity that stretches your imagination, introduces you to new ideas, and helps you find new solutions to problems. Courage to eschew the status quo, take risks, and be willing to learn from failure. Individuals at all levels are being asked to step out of their comfort zones to confront challenges, help a colleague, and do more.

2. Interpersonal Mastery: focuses on being able to connect, communicate, and collaborate. Connect, Professional Services Council

understand, and empathize with people across diverse backgrounds. Communicate new ideas and approaches to a solve old problems and unheard-of challenges.

Collaborate using technologies that stretch knowledge and skills. We’ll be positioned for success as we accelerate best practices around these elements.

3. Organizational Mastery: a critical tool amid a crisis and post-crisis. All employees must have a deeper understanding of their coworkers and the processes and products they provide. We must see how it all fits together in the big picture. This allows us to make smart, futureoriented decisions for the outcomes we desire.

4. Motivational Mastery: engaging, elevating, and energizing those around you whether you are formally a supervisor or not. Today’s “Essential Employee” is different than we envisioned them to be last year. Your team and colleagues are looking to you for cues, and now is the time to create an environment that fosters inclusivity and development to create sustainable achievement in your organization.

We can all summon our strengths for the post-pandemic future and beyond, to achieve remarkable results for our customers, our organizations, and ourselves. 3 Service Contractor / Summer 2020 / 21

Sharing Secure Communication When SCIF/SAPF Hits the Fan

by Mitch Lawrence, CEO, Lawrence Solutions LLC

22 / Service Contractor / Summer 2020

establishes an entire process, including a form documenting consent by the agreeing agencies, for co-using and joint-using facilities and classified information systems, respectively.

Why, then, have these available paths for access to SCIFs and SAPFs been problematic in the present time of great need?

In a brief survey conducted with a dozen companies’ ICD 705 physical security professionals who collectively oversee many SCIFs and SAPFs, none suggested great difficulty in accommodating ICD 705 requirements for access to their cleared facilities. They said Temporary storage, TSCIFs and co-use/joint-use approvals have been forthcoming, understandably with some timeliness challenges. So, what is the real issue then?

During the same survey, it became clear that the problem was inability to share secure communications housed within a Professional Services Council

shutterstock.com / metamorworks

C

rises tend to expose things that we all have known about but have put off addressing. We learned during the last few months that those cleared to use secure communications at their work sites are not eligible at other sites due to “need-toknow” and/or administrative policies not necessarily related to physical security. This seeming paradox requires change, with the goal of ensuring that appropriately cleared workers can gain access to and use corresponding secure communications wherever that may be possible.

When many US Government highly secure facilities— Sensitive Compartmented Information Facilities (SCIFs) and Special Access Program Facilities (SAPFs)—across the nation were closed due to the COVID-19 pandemic, contractors working in those facilities no longer had access to do the classified work required to perform their companies’ contracts.

Naturally, workarounds would be explored and achieved.

But unlike past local crises like Hurricane Katrina, 9/11, etc., this crisis went beyond regional and nation-wide limits to impact the entire world. This meant workarounds have been difficult but, maybe also fortuitously, revealed a shortcoming in access to secure communications.

Several people raising this issue about problematic SCIF/ SAPF access during the ongoing crisis have complained of a failure of facility reciprocity. This is not true in general, so what does the SCIF/SAPF policy say?

Director of National Intelligence (DNI) Intelligence Community Directive 705 (ICD 705) and associated policies governing SCIFs/SAPS establish cleared facility “reciprocity” for the federal government and its contractors. But this reciprocity has to do with construction requirements, not reciprocity of personnel access, or as germane to this issue, sharing of secure communications. Just the same, ICD 705 policies allow for the temporary storage of classified material not normally associated or approved for a SCIF or SAPF. It also permits the creation of Temporary SCIFs (TSCIFs) when following the approval guidance in the policy. And it

SCIF or SAPF. This has nothing directly to do with ICD 705 reciprocity; it has everything to do with the facility’s policy and procedures reflecting its sponsoring agency’s authorities.

In other words, the barrier to sharing secure communications is manifested in “need-to-know” and “data ownership” conditions, not SCIF or SAPF access or construction reciprocity.

An example goes like this: Customer A’s SCI-briefed person, who is no longer able to access their normal government SCIF due to the on-going crisis, requires communicating securely on an important, timely issue. The person requested the use of secure comms at Customer B’s SCIF but was told that, since they were not SCI-briefed on that contract with that agency, they can allow SCIF access under ICD 705 SCIF reciprocity, but not to use the secure comms within that SCIF. An extension of that scenario included the SCI-cleared team having to tell the SAP team they couldn’t attend a secure conference call to have their questions answered, despite the SCI team being able to be present during the call. In both cases the rationale for withholding access to secure communications were procedures governed by need-to-know and agency ownership of the secure phone/conference equipment.

Most who have spent time in the cleared world would find this aggravating but, unfortunately, not unsurprising—hence putting off a known problem only for it to be intensified during a crisis. If someone is cleared and briefed—and if warranted, escorted—why would they be disallowed temporary use of secure comms, especially during a crisis? Those who have been around recall that the STU and STE secure phone instruments

would inform each caller of the level of classification allowed by the distant end caller. How different would it be for the host of a call to identify themselves as known to the distant end and then inform that some listeners are not briefed to the same level?

As this is being written there is movement within the Pentagon to find a solution to enable both US Government and Industry cleared persons to be permitted to have SAP conversations inside DoD-approved SCIFs. Getting the Intelligence Community (IC) to allow SAP discussions in ICapproved SCIFs is complicated by the fact that each IC agency has its own policies for allowing other agencies’ classified use of its secure communications, notwithstanding that the facilities are certified to the same standard.

Although DoD’s efforts are laudable, it should become obvious that the DNI, as the federal government’s security executive agent, needs to intercede to truly remedy the ability for cleared personnel to access, when warranted, secure communications across the government. One recommendation is to have the DNI amend ICD 705 and/or other policies governing access to SCIFs and SAPFs to allow for appropriate, even if limited, use of secure communications by any cleared personnel. The goal would be to facilitate access to secure communication of national security information, not prevent or deny it.

We know there will be consequences if the government fails to provide a remedy to such secure communication access.

There must be a resolve to attain a better path forward. 3

Policy Spotlight, from page 14

the CMMC maturity level standards have been in effect since early this year, without the implementing regulations, neither the DoD buying agencies nor federal contractors can make essential and market-affecting decisions. PSC has a long history of working with DoD and our member companies on all facets of the CMMC program and our work continues, even as we await publication of the proposed rule and an opportunity to comment.

Finally, but certainly not least, we are waiting for DoD (and possibly other agencies) to provide additional guidance on the implementation of Section 3610 of the CARES Act – the provision that provides for the reimbursement of contractors who had employees denied access to government facilities and yet unable to telework because of the COVID-19 pandemic, but who were on paid leave to remain in a “ready state” so as to be available immediately to return to work.

Here, again, PSC has been a leader in our advocacy for the

Professional Services Council

timely, meaningful, and reasonable implementation of this statutory response to COVID-19.

While we appreciate the enormous work done to date by DoD and other Executive Branch agencies to implement the law, much work remains to be accomplished before most contractors will be eligible to receive any reimbursement. For example, on May 18, DoD published draft guidance on the requirements for reimbursement; PSC (and others) submitted extensive comments on May 22. DoD (maybe in conjunction with OMB and other agencies since it is a government-wide provision) have not released the final guidance by press time.

PSC is prepared to work on parallel advocacy tracks as legislation and regulations are advanced. Our member companies always provide valuable and real-time input and guidance when we highlight impending action. The balance of calendar year 2020 will provide numerous opportunities to excel. 3

Service Contractor / Summer 2020 / 23

2020 Federal Business Forecast Scorecard

by Amanda Goff, Research & Analysis Associate, Professional Services Council

F

ederal contractors often have lengthy and complex business cycles that require many months (and sometimes years) of advanced planning to marshal the needed resources to compete successfully for U.S. government contracts. Talented personnel must be identified, facilities located, IT systems lined up – all with sufficient back-office support to guarantee smooth operations.

A critical early, first step in this process is the review of the relevant government agencies’ projected needs. These needs are most clearly presented via agency Business Forecasts. The greater the level of accurate, advanced information that can be provided in a government agency’s forecast, the higher the quality of input, planning and preparation companies will offer their government customers. The follow-on effect will be shorter award decision timelines that allow programs to commence in a timely fashion, benefitting both the government and the American taxpayer.

As explained by a PSC member company representative, “the earlier they (agencies) release information on opportunities, and the more complete that information is, the more likely they are to receive compelling proposals from offerors.”

Recognizing the importance of successful agency forecasts in the overall procurement lifecycle, particularly given its prominence in the earliest stages of programmatic activity, PSC undertook the first-ever Business Forecast Scorecard review in 2019. After lengthy discussions with our members who rely on these forecasts, PSC produced a list of 15 “key attributes” that an effective forecast must include. Industry identified action/award type, anticipated solicitation date, and set-aside status among the most important of those attributes.

Last year, PSC categorized the forecasts of 48 agencies into three classes, based on those attributes. We then engaged with the lower scoring agencies as well as the Office of Federal Procurement Policy to discuss how agency business forecasts can be improved.

24 / Service Contractor / Summer 2020

The 2020 edition of PSC’s Business Forecast Scorecard examined procurement forecasts from a total of 60 federal agencies and components. PSC is pleased to see substantial improvement in eight agencies but continues to encourage all federal agencies to refine the information made available to industry.

This year’s PSC Scorecard also recognized select agencies for the improvements made to their business forecasts following last year’s evaluation.

Model for Success: Naval Information Warfare Systems Command NAVWAR (formerly SPAWAR) showed the most significant improvement over their 2019 evaluation.

Their straight-forward, thorough forecast document is easily navigated and includes in-depth information about anticipated security clearance needs and other program requirements. The information made available in their forecast exceeded expectations and distinguished them as this year’s model for success. Honorable mention goes to USAID and the Department of Education who have been rated highly in both the 2019 and 2020 editions of the Scorecard.

Most Improved: Treasury and Energy Both the Department of Treasury and the Department of Energy showed improvements over previous iterations of their business forecasts. The Department of Energy filled in gaps in their award information, while Treasury provided more substantial project details for forthcoming opportunities. PSC applauds these agencies for taking visible steps to improve their information sharing with industry.

In their feedback to PSC, member company representatives frequently cited incomplete and inconsistent information in agency forecasts, even in those forecasts that scored well. PSC is grateful for their input and looks forward to continuing to work with agencies, OFPP, and interested members of Congress and their staffs, to improve the Federal Government’s vital business outreach effort. 3

Professional Services Council

Newly Released!

FEDERAL

2 0 BUSINESS FORECAST 2 0

SCORECARD

The second annual PSC Federal Business Forecast Scorecard examines procurement forecasts from 60 federal agencies and sub-components. PSC is pleased to see improvement in many agencies but encourages all federal agencies to continue improving and refining the information made available to industry.

PSC companies frequently cite incomplete and inconsistent information in agency forecasts, even in those forecasts that scored well.

There is still work to be done, and PSC looks forward to continued engagement with government to improve their scores in future editions of the Scorecard.

Model for Success: Naval Information Warfare Systems Command NAVWAR (formerly SPAWAR) showed the most significant improvement over last year’s PSC evaluation.

Their straight-forward, thorough forecast is easily navigated and includes in-depth information about anticipated clearance needs and other program requirements. The available information exceeds expectations. PSC encourages agencies seeking improvement to reference NAVWAR as a good model. Their easily replicable spreadsheet can be found here.

Honorable mention goes to USAID and the Department of Education.

Most Improved: Treasury and Energy Both the Department of Treasury and the Department of Energy showed improvements over previous iterations of their business forecasts. Energy filled gaps in award information, while Treasury provided more substantial project details for forthcoming opportunities. PSC applauds these agencies for taking visible steps to improve their information sharing with industry.

Most Significant Decline: Navy Facilities Engineering Command The currently available business forecast provided by NAVFAC fell short of its previous iteration evaluated by PSC. There is insufficient project information available to empower and inform industry planning processes. PSC encourages NAVFAC and other agencies seeking to improve their scores to refer to this year’s Model for Success, NAVWAR.

View full report at www.pscouncil.org/scorecard

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Membership Value: PSC Pivots to Member Needs During COVID-19 PSC

is actively navigating the changing face of life and business during the COVID-19 crisis. PSC continues to be your advocate with the Legislative and Executive branches on important marketplace issues like teleworking, mobile-ready status, communicating with federal agencies, returning to the workplace, and more.

Additionally, we have focused internally on our continued efforts to provide you the greatest value for your membership.

Below are just some of the ways we are striving to maximize your PSC membership during these unique times.

COVID-19 Resource Center PSC monitors reports from the media, U.S. government and other agencies, and member companies on COVID-19 for potential impact to your company and employees and to the work you are doing. The PSC COVID-19 Resource Center, available at www.pscouncil.org/covid19, includes relevant updates in several key categories, what PSC is doing and how we plan to stay engaged with you during this time.

Virtual Events PSC has pivoted our robust events, conferences and training schedule from in-person to virtual.. We moved our Annual Conference and FedHealth Conference, from the early Spring to the Fall. The Federal Acquisition Conference, along with many of our committee meetings, has also transitioned to virtual events. Our Service Contract Act trainings have also been moved online. We have added briefings from our executive staff on the policy and budget impacts the crisis has had on our industry. For information on these and other programs and events, visit our events page at www.pscouncil.org/calendar or contact our events team at events@pscouncil.org.

Online Communities

shutterstock.com /Khakimullin Aleksandr

PSC is implementing additional tools to improve and enhance virtual member-to-member interactions. One tool is Online Communities, a dynamic, virtual platform that allows members and groups to engage through discussion boards, polls and more.

Launching later this year, this “digital gathering place” will allow members to effectively collaborate and communicate with each other and PSC staff members in real time.

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Welcome New Q2 PSC Members!

Membership Engagement by Role There is a membership path for a variety of roles within each member company. View the snapshot below and learn more in the PSC Member Engagement by Company Role handbook.

• C-Suite and Senior Executives • Strategy, Management and Operations

View all the way you can engage with PSC based on your company role in the PSC Member Engagement by Company Role .

Handbook

• Business Development • Marketing and Communications • Government Relations • Contracts and Legal • Human Resources and Security • Information Technology and Cybersecurity Visit www.pscouncil.org/engage_by_role

For more information on PSC membership, contact membership@pscouncil.org.

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2021 SPONSORSHIP OPPORTUNITIES Year-Long Sponsorship and Advertising Partnership PSC offers investment packages that blend sponsorships, advertising and year-long recognition at multiple levels for our membership. In these packages, you will receive an additional level of recognition on the sponsorships you already purchase. “A-la-carte� options are still available, but year-long level commitments get first access to the limited numbers of opportunities.

2021 Event Sponsorships

Advertising

Leadership Summit January 2021 | Washington, DC www.pscleadershipsummit.org

Federal Acquisition Conference Summer 2021 | Arlington, VA www.fedacquisition.org

Defense Strategic Planning Forum Feb. 2021 | Arlington, VA defense.visionforecast.org

Golf Tournament Sept. 2021 | DMV Area

Law Enforcement Conference Feb. 2021 | Arlington, VA www.psclawenforcement.org

Tech Trends Conference Sept. 2021 | Washington, DC www.federaltechtrends.org

Civilian Strategic Planning Forum 2021 | Arlington, VA civilian.visionforecast.org

Vision Federal Market Forecast Oct. 2021 | Falls Church, VA www.visionforecast.org

FedHealth Conference March 2021 | Silver Spring, MD www.fedhealthconference.org

Defense Services Conference Nov. 2021 | Arlington, VA defenseservicesconference.org

PSC Annual Conference April 2021 | The Greenbrier | WV www.pscconference.org

Development Conference Dec. 2021 | Arlington, VA developmentconference.org

Service Contractor Magazine is published quarterly by PSC and reaches thousands of professionals across the federal technology and professional services industry, key members of Congress and agency leaders.

The PSC Daily e-newsletter is published every business day by PSC and reaches the email inboxes of more than 6,000 senior executive members of PSC.

Spotlight your company in PSC's Annual Report. The Featured Service Providers will include your company logo, website, point of contact and brief description of your services.

View All Sponsorship Opportunities at www.pscouncil.org/sponsorships

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MEMBER NEWS The Washington Post Names 25 PSC Member Companies Among Top Places to Work in 2020

PSC congratulates the 25 member companies that were listed in The Washington Post’s “Top Workplaces” for 2020. Companies were nominated as top workplaces in sectors including technology, consulting, professional services, engineering, research, finance, banking, law, and real estate.

Moreover, PSC members in all business size categories - “Small”, “Medium”, “Large”, and “Largest” - were nominated for the awards.

The Washington Post annually surveys employees to gauge the region’s top employers, now in the seventh year of the survey in 2020. Over 120,000 DC-area employees were surveyed for the competition, narrowing down to 200 workplaces for nomination.

REI Systems of Sterling, VA, was among the member companies recognized by the Washington Post. “We are honored that our employees have found REI to be such an appealing place to work.

We continue to be proud that our culture is such a big part of that appeal as REI has worked over 30 years sustaining a culture that celebrates our employees,” said REI Systems’ CEO, Shyam Salona.

G2Xchange recently completed its mid-year review and added 75 additional companies to the NXT UP list, a comprehensive analysis of the top Federal Emerging Technology and Consulting firms in the government marketplace today.

PSC Event Recap:

PSC Participates in 2020 CMS Reverse Industry Day

On June 30, 2020, PSC joined the National Contract Management Association, Woodlawn Chapter to hold the Centers for Medicare and Medicaid Services (CMS) Reverse Industry Day program as a virtual event. Over three hundred CMS employees viewed the session and more than four hundred from industry listened to the audio.

In a Reverse Industry Day, the audience is the government workforce (Contracting Officers, Contract Specialist, Program Managers, Contracting Officer Representatives and other acquisition workforce personnel) and industry representatives are the presenters. The purpose of the Reverse Industry Day was to provide CMS with industry views on best practices in the preaward and post-award processes involving CMS procurements and to let CMS know what CMS can do to make improvements.

The final list will be unveiled in October, awarding three winners in each size category.

Abt Associates Honored by Commuter Connections’ Employer Recognition Awards

The Metropolitan Washington Council of Governments Commuter Connections’ program honored Abt Associates of Rockville, MD, with an award for their exceptional commitment to offering and promoting innovative and sustainable commute alternative programs at its 23rd annual Employer Recognition Awards. For the first time, the awards were streamed virtually from the National Press Club with participants joining via livestream to celebrate. These programs help reduce traffic congestion, personal expenses, auto emissions, and improve the quality of life for their employees and the region.

BookZurman Named to Inaugural NXT UP list

BookZurman was recognized alongside champions of industry on the NXT UP list as a company “poised to make big waves in the Federal sector in the second half of 2020 and for years to come.”

BookZurman was included on the inaugural NXT UP list in January of this year with other business leaders such as Microsoft, Perspecta, Google, Intersystems, IBM, and others.

Melissa Starinsky, Director, Office of Acquisition and Grants Management, CMS delivered opening remarks. PSC’s Bradley Saull, Vice President for Civilian Agencies moderated the pre-award session. Derrick Heard, Deputy Director, Office of Acquisition and Grants Management, CMS delivered closing remarks.

A recording of the virtual session should be available for your reference soon on the PSC website.

Thank you to those who submitted a nomination to participate and to those of you that participated in this CMS event. We look forward to conducting similar events with CMS in the future.

Have a story for Service Contractor’s Member News section? E-mail jones@pscouncil.org

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E T A D E H T E V A S

November 9-10, 2020

The Annual Vision Federal Market Forecast is the only non-profit federal market forecast that addresses the defense, civilian, and federal IT markets. The Conference is where industry and government convene to present and discuss the results of the Vision Federal Market Forecast. The Forecast delivers insights from hundreds of government executives, think tank experts, congressional staff and Wall Street analysts who take part in non-attribution interviews. It also provides a concise, quantifiable assessment of the budgets, programs, priorities, and issues in a rapidly changing environment.

Register at www.pscouncil.org/vision

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Professional Services Council 4401 Wilson Blvd., Suite 1110 Arlington, VA 22203

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Aug 13, 2020 • 9 a.m. - 12:30 p.m.

Hear from senior executives across the Department of Defense and federal contracting community discuss how they are adapting to change and accelerate transformation in defense services. Reserve your [virtual] seat for the second annual Defense Services Conference!

Register at www.defenseservicesconference.org 32 / Service Contractor / Summer 2020

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