Off the Shelf

This week’s guest on Off the Shelf is Tim Keeler, partner, and co-head of the International Trade team at Mayer Brown.   

The Committee on Foreign Investment in the United States (CFIUS) plays a critical national security role regarding the industrial base. Keeler details the inter-agency structure, purpose, and scope of CFIUS, and explains the process and criteria whereby CFIUS reviews certain covered transactions involving foreign investments in the nation’s industrial base that raise national security concerns. 

Keeler talks about the key considerations and practices for potential mergers and/or acquisitions involving foreign investors, and he shares key trends in the CFIUS decision-making process. 

Finally, Keeler provides his thoughts on key trends in international trade and trade agreements.  

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This week on Off the Shelf , Jonathan Aronie, partner at Sheppard Mullin, updates his leukemia journey since his last year’s appearance on the show. He is now back to work full-time and as such the conversation quickly turns to key trends in investigations and audits. 

Aronie outlines the spectrum of “reviews, investigations, and audits” that are part of doing business with the federal government. He continues with his analysis of the oversight spectrum by outlining the key features associated risks for contractors when dealing with GSA’s Industrial Operations Analyst (IOA) reviews, audits, and investigations.

As part of a wide-ranging discussion, Aronie shares best practices and key considerations for contractors dealing with investigations and audits. 

Among other topics, Jonathan gives his thoughts on the role contractor self-initiated internal reviews/investigations can have in mitigating risk. Finally, the discussion concludes with a focus on how of GSA’s legislative proposal addressing “best value” in the federal supply schedules will increase competition, leverage commercial innovation, and deliver enhanced mission support to customer agencies.  

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This week on Off the Shelf, Townsend Bourne, partner at Sheppard Mullin, shares her insights regarding the Cybersecurity and Infrastructure Security Agency’s (CISA’s) proposed rule implementing the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA). 

At over 400 pages, the proposed CIRCIA rule is a daunting read. Bourne breaks down the rule identifying the key aspects and corresponding impacts for those covered entities.  She discusses the 16 critical infrastructure sectors covered and the corresponding number of private firms that will be subject to the rule, noting that defense infrastructure sector will now be subject to overlapping reporting requirements (CIRCIA and the DFARS/FAR cyber incident reporting requirements).

Bourne also outlines what “cyber incidents” are to be reported, walking through the key tests for reporting .

Finally, she details the mechanics and key features of the reporting process and contrasts the CIRCIA rule with the proposed FAR cyber incident reporting rule.   

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Bob Metzger, shareholder at Rogers Joseph O’Donnell, joins Off the Shelf this week and provides his incisive analysis and insights regarding the federal government’s cybersecurity framework.

Metzger outlines the complex, ever-changing threat environment facing government and industry. From near peer adversaries to independent criminal elements, he frames the threat against the government’s ongoing program and regulatory cyber initiatives.

Metzger analyzes the government’s underlying cyber strategy currently being implemented through procurement regulation, and he gives his take on the FAR’s cybersecurity regulations/clauses and the Department of Defense’s Cybersecurity Maturity Model Certification (CMMC) program.

Metzger also shares his thoughts regarding the impact of the cyber regulatory framework’s impact on small businesses and the government’s long term access to commercial innovation, and whether the government should move to a more “performance-based approach” to cybersecurity versus the current more prescriptive model outlined in a host of proposed rules.

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This week on Off the Shelf, Alan Thomas, founder and chief strategist at Alpha Tango Strategies, examines the history of the eCommerce platform and shares his thoughts on the acquisition and policy history of the CPI as well as prospects for growth now that the eight follow on contracts have been awarded. 

Thomas highlights the outreach role GSA has played and must continue to play to enhance opportunities for growth in customer agency usage., and he discusses the impact of GSA's new SaaS advance payment policy and what it means for customer agencies and industry. Thomas contrasts this new commercial-like payment policy with the current state of the federal acquisition regulation and the re-regulation of commercial item contracting. 

Finally Thomas talks about the impact of regulatory burdens on competition and access to the commercial market.  

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This week Jason Miller, executive editor at Federal News Network, joins Off the Shelf, for a wide-ranging discussion of the policies, regulations, legislation, trends, and programs shaping the federal procurement market.

Topics include the FAR at 40 years, the new part 40 of the FAR, GSA's commercial platform awards, GSA's new policy on SaaS and advance payments, the impact of CMMC on small business, new grant regulations, and the trends on DoD's PALT for task and delivery orders.  

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This week on Off the Shelf, Jason Workmaster from Miller Chevalier provides a legal and policy update for government contractors. 

Topics include key provisions in the 2024 NDAA impacting procurement and the industrial base, the DFARS commercial item rule and regulatory creep, the impact of a recent federal circuit decision on EULAs and third party suppliers' ability to seek redress under a government contract.

Workmaster also discusses the lessons learned and the impact of the CIO-SP4 bid protest decisions, and the split in bid protest case law (GAO vs. Court of Claims) on key personnel requirements.   

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This week's guest on Off the Shelf is Anthony Principi, principal in the Principi Group, and former secretary of Veterans Affairs in the President George W. Bush Administration. 

His discussion with host Roger Waldron focuses on the evolving healthcare environment and the implications for the VA's mission. 

Principi highlighted the advances in medical technologies, treatments, and protocols that have reduced the need for hospital beds and resulted in a VA medical infrastructure that is a mismatch due to its surplus number of hospitals and facilities. He also talked about efforts over the last 20 years to address the VA’s healthcare infrastructure taking into consideration the evolving healthcare environment.

Principi outlined the critical role the VA healthcare system plays in our nation, including medical research, training, and serving as the national healthcare backstop in times of emergency. The conversation also included Principi’s thoughts on leadership and management, often drawing on key experiences during his time in government. 

Finally, Principi highlights the noble mission of the VA in delivering critical healthcare to veterans.  

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Ken Dodds, vice president of Acquisition Policy at the Coalition for Government Procurement joins host Roger Waldron on this week's Off the Shelf for an in-depth discussion on the latest policy, contracting, and program developments impacting small businesses in the federal procurement market.  

The discussion topics include the impact of the Ultima decision on small, disadvantaged businesses, the Forward Slope size appeal and the impact on Seaport NG, mentor-protégé joint venture experience litigation including the latest POLARIS decision, and NAICS code on orders under multiple award contracts.

Dodds also address the ongoing focus on the NAICS for the NASA SEWP follow-on procurement and the potential waiver of the non-manufacturer rule.  

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This week’s guest on Off the Shelf is Jessica Tillipman, associate dean for Government Procurement Law & Government Contracts Advisory Council Distinguished Professorial Lecturer in Government Contracts Law & Policy at The George Washington University Law School. 

The GWU Law School’s Government Procurement Law Program is considered the preeminent program of its type in the world. Professor Tillipman highlights the resources and opportunities to students focusing their legal studies on federal procurement law. She also discusses the positive role the program plays in the federal procurement community.

She also shares her thoughts and analysis on a series of procurement issues, including bid protests, the so-called revolving door, and artificial intelligence as applied to procurement operations. 

Other topics of discussion include the Supreme Court’s SuperValue civil false claims act decision, the role and purpose of debarment in federal procurement, and teaming in federal procurement.

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