Interview transcript:

 

Terry Gerton A lot has happened over the last few weeks and as people in the contracting world get back to their desks and start things back up again, they’ve got a lot to touch base on. Just before the shutdown we had the publishing of the FAR overhaul and defense has come out with a lot of new priorities. How can people start to put all these pieces together and make sure they’re working with the whole picture?

Emily Murphy It’s a really complicated picture right now. I want to go back and say — GSA, DoD, NASA, OFPP did an incredible job in getting that FAR overhaul done and published. And they even got the updated FAR companion out during the shutdown, which I know has to have been a struggle. So they did a wonderful job with it. USDA, Department of Homeland Security, and GSA have all adopted the entire new set of standard deviations. That means, however, that no other agency has. So if you’re a contracting officer right now or you’re a contractor, there’s not a standard set of rules you can go to. You have to be looking at which deviations did this agency adopt? How does that interface with what contract vehicle I’m using? And what about this other policy that’s happening over at the Department of War? There’s not a clear one-size-fits-all answer to the problem anymore. If you think of GSA, for example, assisted acquisition has always said that they follow the rules of the funding agency. So, money and requirements coming into GSA’s assisted acquisition service, they’re going to follow that agency’s money and the rules that come with it. Well, that might mean that they’re adopting, if it’s coming in from Department of Energy, one set of rules; Department of War, another set of rules. If it’s coming in from the SBA, it might be a third set of rules. So I keep thinking that if I’m an 1102 right now, a contracting officer, I want more monitors. Because I’m going to have to have so many different versions of rules and guidance up until we can make it through this. I think the standardization is going to come, but I think it’s going to be a really tough few months — as the new rulemaking takes effect  as more and more agencies adopt those standard deviations, and as we get more clarity on what the Department of War’s new announcement from the 7th of December actually means in the application, so that we know what to expect with those contracts.

Terry Gerton How much more complicated does the continuing resolution make it? Because now some agencies have full-year appropriations. We have a CR in place for others through the 30th of January. And on top of that, we have all these new rules that you’re talking about.

Emily Murphy So if one thing contracting officers are used to dealing with and contractors are very used to dealing with, it’s CRs. I don’t think that that’s going to be the hard thing. It does slow down new starts for the agencies that have a continuing resolution. For the agencies that actually have their appropriations, it means that they can get started. It actually may help balance the workload out a little bit, because you can start the new starts for agencies that have the authority while you’re still working on the continuing resolution and continuing the existing contracts for all the other agencies. But the sort of mosaic of rules and regulations out there is going to make things tougher … it’s one more complication thrown into the mix. And the irony is that this is all really intended to make things simpler, faster, cheaper, better. And I think ultimately it will, but it’s going to be a little bit painful for the next couple months.

Terry Gerton Well, speaking of simpler, faster, better, cheaper, what’s the perspective of contractors? We’re talking first about the contracting workforce, but contractors and especially small business organizations who might not have a big contracting shop to help them navigate all of this. What should they be looking at and thinking about in this new, sort of interim period?

Emily Murphy So they need to be really carefully looking at not just their contracts, but the agencies they’re doing business with and seeing where the changes are coming. For example, if you’re an 8(a) firm, you need to be looking at the new competition rules that are in part 19. If you’re a service-disabled veteran or a woman-owned small business or hub zone company, it’s opening up the realm of what you can compete for, because things that were previously in the 8(a) program are now available if an agency chooses to take them and compete them amongst those other socioeconomic categories, they can. That’s just looking at the small business programs. They also need to be looking at the clauses. Right now, their contracts probably have the old clause matrix in them. Part 12 reduced for commercial type contracting, reduced the number of clauses by about 30%. Which clauses are changing? Which ones can they get, and what does that transition look like for them? What can they stop doing? And what do they have to change how they’ve been approaching? And it’s going to be a sort of a contract-by-contract answer. Someone’s going to deal with their flow-downs. And then we’re also hearing — I think Jason Miller, your colleague, reported on it — that there’s going to be maybe some changes to how IT value-added resellers are being treated. So that’s not even in the current regulations, but it’s something that’s sort of looming out there over the community that they that they’re going to need to be paying a lot of attention to, because limitation on subcontracting is becoming more important. Compliance with contracting terms, frankly even the move towards OTAs and CSOs and all sorts of alternative contracting, they’re going to have to become masters at a whole other set of contracting options — or award options, I should say, not even contracting options at that point.

Terry Gerton I’m speaking with Emily Murphy. She’s former administrator of the General Services Administration and senior fellow at the Baroni Center for Government Contracting at George Mason University. Emily, along with all of these changes, you’ve been a strong advocate for training of 1102s. But with all of this happening, and we have Secretary Hegseth announcing a complete shift in focus for DAU, now the Warfighting Acquisition University, what do you see as key to keeping 1102s current and keeping their mindset focused on these new ways of doing business?

Emily Murphy So we’re giving the 1102s, the contracting community, a lot of new tools. I mean, you’re seeing GSAI, the Department of War is rolling out new tools as well. Everyone’s got new tools. We’ve got new regulations, we’ve got new authorities. What I haven’t seen is anyone budgeting for the time to train the workforce on how to use these and how to use them properly. There are some very powerful tools out there and very powerful changes in the regulations themselves that give that workforce a lot more authority. But you’ve got a realignment of who the your contracting officers are going to be reporting to within the Department of War, so that they’re going to be reporting instead of up into a contracting organization, they’re going to be aligned with the program instead. At least that’s what’s been stated. We haven’t seen the reassignments happen yet. So how is that going to change day-to-day business? Who’s taking the time to sit down and explain you can now do a simplified acquisition procedure for commercial items up to $9 million? What does that look like? How do I do it? How do I do it well? If I still have to get a senior-level approval for an award above — and choose your threshold because it varies from agency to agency — $100,000, $50,000, $250,000, $1 million, what advantage is there to these new simplified tools that I’ve got if everything’s still going to go through an enhanced level of review that’s imposed at the agency level? How does that play itself out? And where should I be spending my time and prioritizing to get that best deal? There’s so much more data. How do I use it? How do I make sure that it doesn’t create a conflict of interest, also? If I’m educating an AI model, how do I make sure I’m educating it appropriately and then using it in a way that it doesn’t create its own organizational conflict of interest or its own problems with inherently governmental? How do I make sure it’s not hallucinating?

Terry Gerton Who should be thinking about that training and who should be funding it since so many of these changes are centrally driven?

Emily Murphy  I know that GSA has been thinking about this. Clearly the Department of War, with the rebranding and renaming of the BAU to WAU, is thinking about training. The problem is time. You’ve got a workforce that has been under enormous pressure to get things out the door. And training isn’t something that happens … they lost over 40 days, they lost over six weeks of opportunity that they couldn’t go and take that training. And there is a backlog of work. Training, unfortunately, gets frequently put on the back burner at that point when it needs to be prioritized first so that you’ve got the ability to actually execute better on what’s waiting on your desk. But that’s easy to say. It’s a lot harder to do when your desk is overflowing with work.

Terry Gerton Contracting shops are a lot leaner after all the DRPs and downsizing. We’ve got lots of new confusing rules. Do you anticipate that this is going to pose a problem in terms of oversight and then potentially protests as this plays out?

Emily Murphy I think it is. I think it’s interesting. I heard the other day that it’s about 25% of the acquisition workforce that’s gone. I couldn’t point to the source of that statistic, but that’s a substantial reduction at a time when we’re not seeing a reduction in contracting actions or in spending. And when you’ve got different rules and different interpretations of those rules and guidance that can be changed regularly, that doesn’t have the same effect as a actual regulation, it leaves open the possibility that contracting officers or program offices or others can be interpreting things in different ways. And a difference of interpretation is ripe for oversight. And I don’t mean that in a in a negative way; that oversight can actually help highlight where you’ve got discrepancies if it’s done appropriately. It can also, though, turn into a game of “gotcha.” And for a workforce that’s already stretched pretty thin, playing “gotcha” with them just doesn’t seem very fair right now.

The post Now that the shutdown is over, contracting officers have a lot to catch up on first appeared on Federal News Network.

Interview transcript: 

Eric White Let’s start from the FAR overhaul perspective. They were able to get that out right before the shutdown occurred. I wanted to see what your initial thoughts were and what you’re hearing from industry folks who are going to have to comply with these new rules.

Emily Murphy So it’s really interesting, very last minute, obviously they got everything out, they wanted to meet that deadline. And I’ve got to commend the folks at OFPP, GSA, NASA, DoD, who all got that out and they worked really hard to get that out so that it would be out there before, frankly, many of them ended up getting furloughed. They got Part 15 out, Part 16 out, so they’ve got a lot of stuff out at the very last minute, and there’s a lot there to still digest. Part 16, which is type of contracts, was really interesting because it created BPAs against GWACs, which was something we haven’t seen before. Lots of sections came out with even just PDFs, and they’ve now been updated to include the actual downloadable, the actual text. But there was a lot there. One thing that contractors should be paying attention to right now is that even though these have all gone out, if you go to the Revolutionary Far Overhaul site, you’ll see that not all of them have been adopted at every agency. And so that’s something that you should be very, very aware of, depending on where they’re contracting. So, some of the deviations have only been adopted by two, three agencies. Others have more than 30 agencies that have adopted them. But when you consider how many agencies there are, that still isn’t a very large number, and so it becomes a question of, are the agencies considering these to be just adopted by, in absence of them taking any action, is it that they are still thinking through the deviations, they need to do some additional modifications to a deviation they would be doing, because these were model deviations, they were not agency-specific deviations. And then, this was the FAR Council putting these out with the intention of doing it as a deviation that agencies could adopt and start implementing right away as they started an official rule making process. And the expectation was that official rule making would start sometime mid-November. Now, I don’t know if that’s gotten slowed down by the shutdown or not. But it raises a lot of questions. You still can go on to the acquisition.gov website and give informal comments. And I would suggest anyone who’s thinking of doing so do that, but then start coming up with what they want their real comments, their official comments to be on those rules. What did the FAR Council get right? And then, where are there areas that need changes, that need some adjustments? And I trace it with both, because frequently, at least back in the days when I was actually working on the FAR Council stuff in the Bush administration, we would frequently get comments back from people only about what they disliked. They wouldn’t tell us what was good. And when you don’t tell agencies what is good, they may actually get rid of what it was that you liked in the FAR changes because they’re not hearing people step up and say, that was a good change, that’s going to make things better, please keep that. If all they hear from is people saying we don’t like anything, you never know what’s going to then survive that comment period. So it’s very important to comment, not just on what you think needs to be changed, but also on what needs to be retained.

Eric White I think any Amazon reviewer will cite the same experience if they have that. They only tell me what they don’t like. They titled it the Revolutionary FAR Overhaul. Is that, I want to get your opinion, is that an inappropriate title? Is this really revolutionary or is this a bit of labeling that we’ve seen from the Trump administration in the past?

Emily Murphy I’m not sure that they could be truly and utterly revolutionary in terms, because there were statutory constraints, but they did about everything they could within that statutory framework. They got rid of a third of the clauses that affect commercial contracting. They got rid of the reps and certs, lots of them, and it’s going to be much easier to register as a federal contractor going forward. The commercial type contracting, they broke it down into commercial type contracting for under simplified procedures versus non-commercial, so we’re dividing the world there. It’s the only place where we saw new regulations coming in. Part 15 got rid of the old discussions and replaced it with negotiations. There is a lot of change. Part 8, taking the schedules ordering procedures out of the FAR and putting them back into the GSA Acquisition Regulations, that’s pretty revolutionary. So there’s a lot in there that is very much worth noting and is going to change how agencies operate and how vendors have to comply. It should streamline things, it should speed things up. It really does push decision-making down to the lowest level possible. And it will be interesting to see, since the FAR Council noted on the website that things that require a statutory or regulatory statutory changes or changes to executive order would be addressed with the second round of this, with the official rule making. So whether there’s even more up their sleeve, if there’s going to be more that happens. But I think that they did a lot to make this fairly momentous and they did it really fast. You remember the last time they tried to rewrite Part 15, it took years. They did it this over the course of a summer while they did every other part of the FAR as well.

Eric White We’re speaking with Emily Murphy, former GSA administrator and senior fellow at George Mason University Baroni Center for Government Contracting. Let’s get to the vendors themselves. Shutdown is still ongoing, as of this recording. What are you hearing and seeing from those vendors that have long-term contracts that are coming to a close, or they’re going to need some help operating in this new FAR environment and they may not have the necessary guidance that they could use at a time like this?

Emily Murphy So the first thing I’d say to companies that are operating, have a contract that’s about to lapse, read your contract, make sure you know what’s in it. Most contracts have a provision in there — it’s usually in 52.217, sometimes dash eight, sometimes dash nine — on how to extend that work. Make sure you know which clause you have or what clauses you have, what options are there. I’m hearing some talks about taking a no-cost extension. And that’s a decision agencies and vendors are going to have to make. But the vendors should be aware of when they do that, they’re performing at risk. That there is a good chance that they may not ever have that option exercise. They may not have that ability to get reimbursed for that. They certainly won’t get reimbursed for a no-cost extension, but they may not have something happen once the government shutdown is over. So it’s got to be a business decision they’re making at that point in time. But ultimately, know what’s in your contract, know to the greatest extent possible who it is you’re dealing with at the agency, what set of rules they’re following at this point in time, and have options in a strategy you’re willing to propose to the government to make it easier for them, because whether we’re back from the shutdown by the time this airs or we’re still on a shutdown, you’ve got a very small workforce dealing with a lot of work. And the easier you can make it for them, the better it’s going to be.

Eric White We’ve seen these shutdowns now popping up every couple of years or so, usually right around this time of year. Do you see any adjustments coming down the pipeline by vendors of putting provisions into contracts or taking necessary precautions, maybe waiting until they are messing with the extensions or deadlines before they hear whether or not there is going to be one or not? Especially, like I said, around this time of year when shutdowns seem to occur.

Emily Murphy Well, the last major shutdown that happened happened December of 2018, and it went through January of 2019, so it was the 35-day shutdown, it was the longest shutdown we’ve ever had. So while in the past it was fairly, you thought right after the fiscal year there being a risk of shutdown, the fact that it was a long shutdown that didn’t start until just before Christmas, I remember because I was at GSA at the time and people had gone home for the holiday before the shutdown happened. That made it a tough time. There’s never a good time for a shutdown, so I shouldn’t say that, but that was a tough time for people to be shutdown on Christmas. I don’t know that they’re trying to time a shutdown. It’s sort of reading tea leaves or trying to do some fortune telling. I think that smart companies, though, are planning to know that government shutdowns do happen and they have a plan for their workforce when that’s going to happen, whether it’s mandatory training that they need their employees to be taking, to maintain certifications, to comply with a government requirement, whether its the upskilling of that workforce, whether it’s working on strategic planning documents or other things, they’ve thought about how they’re going to use their workforce if the workforce isn’t able to show up. We talk a lot about what’s going to happen to federal employees and will they be paid for the work for this time that they have been furloughed. The contractors don’t get paid, and good contractors try to do everything in their power to keep paying their employees, but they’re never going to be made whole for that. And there’s a limit to how long a small business and midsize business can continue to pay people to not work. And we need to be very aware that this hits the industrial base, not just the federal employee base, and that both sides of this are feeling a lot of tension right now and a lot stress.

Eric White Wanted to finish up here by getting your thoughts on the East Wing renovation happening at the White House. People were obviously going back and forth about the actual move itself, but people like you and I were probably thinking, huh, I wonder how that contract was structured. What are your thoughts, and who do you think was handling it? We’ve got really three choices, the Executive Office of the President, GSA, your former camp, or even the Park Service, as the White Houses i actually designated as a national park.

Emily Murphy It is, and what’s interesting is when I was the GSA administrator, we were looking at doing renovations in the West Wing and that very much would have been a GSA contract. It would have in the Public Building Service doing that work. The East Wing, though, probably it’s going to fall into either the National Park Service or the [Executive] Office of the President that would be doing that work. It’s not a GSA building once you hit the East Wing. It’s fascinating when you look at the White House complex. There is an agreement that tells you down to what brick along the sidewalk is managed by GSA versus by Interior versus whoever else and who’s got responsibility for what. East Wing would definitely be either the, what they call room one or would be a National Park Service.

Eric White And when a private donor enters the picture, I imagine that that can add some complications to the paperwork, as you shake in your head now for those of us not watching on video. What does that entail, and did you ever have any experience with a private donor paying for something that the government usually does?

Emily Murphy I never had that experience at GSA. When I was at SBA, SBA had a lot of gift authority and we did occasionally get sponsorships or things along those lines that would come into play. It will allow them to go a lot faster because they’ve got private funds. But my recollection is that when they did the renovation at the White House years ago under Jackie Kennedy, that that was also funded a lot through private donations. And so there is precedent for private donations going in and assisting with paying for these things. And it’ll be interesting to see when the contract details come out, and I’m sure they will, how it’s all been structured and how it’s proceeding. And you look forward to getting a chance to look through those documents someday.

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