From the desk of the ALA President
Quotes of Note
“I will review the Department’s original recommendations on this issue and will evaluate the savings and efficiencies that can be gained by various service models or consolidations. It is important that any consolidation or shared services model maintains or improves the benefit while achieving desired savings.” “If confirmed, I will support quality of life programs that reinforce a strong military community and focus on those that will help to build and sustain resilient families. My priorities include spouse employment, preventing both domestic violence and serious harm to children, and childcare programs. I will base my decisions on programs that are determined to have the greatest impact on readiness, retention, and resiliency.” Secretary of Defense nominee Lloyd Austin at his January 19 confirmation hearing before the Senate Army Services Committee.
“The Senate Armed Services Committee views military quality of life and military family readiness as critical factors in the recruitment and retention of servicemembers. Military families want access to high quality education for their children, and to high quality health care and childcare services on military installations and in local communities. Military spouses seek education and employment opportunities, and military families benefit from modern morale, welfare and recreation (MWR) services.” From Advance questions submitted by the Senate Armed Services Committee to Secretary of Defense nominee Lloyd Austin for his January 19 confirmation hearing.
“Thanks to all the first responders, medics, DoDEA staff, AAFES/DeCA/FSS food handlers, and others who have volunteered to get the vaccine as a way to protect the population and themselves and to decrease the chance for continued spread of COVID. We are all in this together. As our partner, our host nation has vaccinated more than one million German citizens so far. Sadly, I continue to be concerned for the United States where 20,000 Americans have lost their lives to COVID in the last week.” A Facebook posting from the Chief Medical Officer at Ramstein Air Force Base, Germany.
“Now, if confirmed, you'd have the honor of leading a team of Americans to represent everything that is noble and best for our nation, our soldiers, our sailors, our airmen, Marines, space guardians, our military families. And by the way, on the military families, we always hear from those who are a little less enthusiastic about a strong national defense that we spend more than Russia and China put together. And there's a reason for that.”
“The reason for that is we care about the families. We care about housing. We care about--the largest single expense that we have a military is for families--our military families. Now in a communist country, you don't have that. They just give you a gun and say, "Go out and shoot people." So, this--it's what we are concerned about and we will continue to do that.”
“Our many defensible servants also sacrifice day in and day out for our national security and really get the credit for--they deserve. The department will require strong civilian leadership. For you to serve as the secretary of Defense, Congress must provide an exception to the law that prohibits individuals from being appointed if they are within seven years of their military service. Last week, this committee held a hearing on civilian controlled armed services which have--I think it was instructive. I've never been all that concerned about the seven years, but others--others have.” Senator Jim Inhofe at the January 19 Senate Armed Services Committee confirmation hearing for Secretary of Defense nominee Lloyd Austin.
“Today, U.S. force levels in Afghanistan have reached 2,500. Directed by President Trump, and as I announced on November 17, this drawdown brings U.S. forces in the country to their lowest levels since 2001.” January 15 statement by then Acting Defense Secretary Christopher Miller.
“This is my community, and it’s one I care deeply for. The world has changed since Joining Forces started in 2011. And I know that we have work to do to make sure that we are as timely and as targeted as we need to be. I take my mandate and our bias for action very seriously.” Rory Brosius, newly appointed Military Family Engagement leader for First Lady Jill Biden.
2,500 troops, 18,000 contractors. The Pentagon employs more than seven contractors for every service member in Afghanistan, figures from U.S. Central Command show. More than 18,000 contractors remain in Afghanistan, a Defense Department report released this week said, after the Pentagon announced Friday it had reduced its troop total in the country to 2,500. Stars and Stripes reports About 4,700 of the contractors are Afghans hired locally, but nearly three-quarters come from outside the country, including about a third who are U.S. citizens, the data in this week’s report show. Many of the rest are from developing countries such as Uganda and Nepal.
ALA Foodservice Council. Several foodservice companies are joining ALA and the ALA Board has established a working council to represent the military nonappropriated and appropriated food service sectors. The need to address the concerns of manufacturers, prime vendor distributors and the military and government agencies, which are responsible for appropriated and non-appropriated feeding, is an under-served element which ALA seeks to provide advocacy and strength. ALA will be working to bridge the gaps that exist between industry and DOD general foodservice. The ultimate goal is to improve the quality of life of Servicemembers while enhancing business practices between industry and the DOD agencies. Inside the Defense management shuffle. Here’s who the Biden administration has slated to fill some of the Defense Department jobs on an interim basis while it awaits either a Senate confirmed official or a permanent appointee. At the same time, the Pentagon released a long list of civilian holdovers who will fill key positions until Biden nominees are named and confirmed. The six-page memo lists career Pentagon officials who will step in on a temporary basis, either in an acting or PTDO [Performing the Duties Of] capacity. Norquist, formerly Deputy Secretary of Defense is now the Acting Secretary of Defense until the confirmation of Lloyd Austin. Austin’s confirmation could move quickly. The House will vote today on a needed waiver to allow him to serve as Secretary and the SASC could also vote today to confirm him. Veen Penrod is the Acting Undersecretary of Defense for Personnel and Readiness. Julie Blanks is the Acting Deputy Undersecretary and Tom Constable is the Acting Assistant Secretary of Defense for readiness.
Army
· Secretary of the Army John Whitley · Under Secretary of the Army Christopher Lowman · Assistant Secretary of the Army (Acquisition, Logistics and Technology) Army Lt. Gen. Robert L. Marion · Assistant Secretary of the Army (Civil Works) Vance F. Stewart III · Assistant Secretary of the Army (Financial Management and Comptroller) Wesley C. Miller · Assistant Secretary of the Army (Installations, Energy and Environment) J. E. (Jack) Surash · Assistant Secretary of the Army (Manpower and Reserve Affairs) Mark R. Lewis · General Counsel Craig R. Schmauder
Navy
· Secretary of the Navy Thomas Harker · Under Secretary of the Navy: none · Assistant Secretary of the Navy (Installations, Energy and Environment) Todd Schafer · Assistant Secretary of the Navy (Financial Management and Comptroller) Alaleh Jenkins · Assistant Secretary of the Navy (Manpower and Reserve Affairs) Catherine L. Kessmeier · Assistant Secretary of the Navy (Research, Development and Acquisition) Frederick (Jay) Stefany · General Counsel Garrett L. Ressing · Air Force · Secretary of Air Force John Roth · Air Force Under Secretary of the Air Force: none · Assistant Secretary of the Air Force (Manpower and Reserve Affairs) John Fedrigo · Assistant Secretary of the Air Force (Financial Management and Comptroller) Stephen Herrera · General Counsel Craig Smith · Assistant Secretary of the Air Force (Acquisition, Logistics and Technology) Darlene Costello · Assistant Secretary of the Air Force (Installations, Energy and Environment) Jennifer Miller · Assistant Secretary of the Air Force (Space Acquisition and Integration) Shawn Barnes
Also, around 20 other permanent members of the Biden Administration were sworn in yesterday including several that will have an effect on resale programs:
• Terry Adirim, Principal Deputy Assistant Secretary of Defense for Health Affairs • Patricia Barron, Deputy Assistant Secretary of Defense for Military Community and Family Policy, Office of the Under Secretary of Defense for Personnel and Readiness • Susanna Blume, performing the duties of Director, Cost Assessment and Program Evaluation • Melissa Dalton, Principal Deputy Assistant Secretary of Defense for Strategy, Plans and Capabilities • Beth Foster, Senior Advisor, Office of the Under Secretary of Defense for Personnel and Readiness • Jongsun Kim, Deputy Comptroller for Budget and Appropriations Affairs, Office of the Under Secretary of Defense (Comptroller) • John Kirby, Assistant to the Secretary of Defense for Public Affairs • Kelly Magsamen, Chief of Staff to the Secretary of Defense
Insight into the likely new Secretary of Defense. I took a look at the testimony and advance policy questions for the nominee for Secretary of Defense, Lloyd Austin. Here’s some insight from him.
Spending. “Resources are an important part of generating the capability to achieve our national security goals, but that capability also depends on wise planning, leadership, effective training, and other factors. My goal will be to use the resources available to the Department wisely to realize the strategic aims of the Department and ensure the nation has the military capabilities to compete and win. Given the likely budget impact of COVID-19, DOD must be fiscally pragmatic and be prepared for modest growth in the coming years.”
Europe troop levels. “If confirmed, I would initiate a global force posture review relative to the threats we face and examine how that posture should change over time. That review would, of course, include U.S. posture in Europe, particularly given Russia’s aggressive behavior, and I would closely consult our NATO allies in considering any changes. Finally, I would continue to encourage our allies to increase their investments in modernization and new defense capabilities.”
“President-elect Biden pledged a comprehensive review of our global military posture relative to the threats we face and, if confirmed, I look forward to leading that effort and examining how that posture should change over time. While I have not yet fully reviewed our deterrent posture in Europe, I believe it must be a part of this review. If confirmed, I will also want this review to examine the Trump Administration decision to withdraw significant numbers of US troops from Germany.” Pacific basing. “There’s no question that we need a more resilient and distributed force posture in the Indo-Pacific in response to China’s counter-intervention capabilities, supported by new operational concepts. If confirmed, I’ll review our posture in the Indo-Pacific from all aspects including presence, capabilities, logistics, exercises, infrastructure, and capacity building and cooperation with allies and partners.
If confirmed, I’ll review our posture in the Indo-Pacific from all aspects including presence, capabilities, logistics, exercises, infrastructure, and capacity building and cooperation with allies and partners.”
South Korea. “The U.S.-Republic of Korea (ROK) Alliance is the linchpin of peace and security in the region. It is among the most combined, interoperable, capable, and dynamic bilateral alliances in the world, and is a robust deterrent to aggression on the Korean Peninsula. Strengthening America’s alliances will be at the center of President-elect Biden’s foreign policy and national security strategy. Having built coalitions and fought alongside our allies for decades, I consider our unparalleled network of allies and partners one of our greatest strategic advantages -- and the foundation of our position as a Pacific power. If confirmed, I will focus on modernizing our alliances throughout the Indo-Pacific and will seek the early conclusion of cost sharing negotiations with South Korea as part of those efforts.”
DoD finances and systems. “If confirmed, I would continue the Department’s efforts to achieve a clean audit opinion on its financial statements. The process of undergoing an audit drives discovery, transparency, and business process discipline that yields significant positive results for the Department. Also, having accurate, actionable business data is essential to running any large organization. I understand the Department has developed a single common ‘data lake’ that is used to provide real time information on financial, HR, security, acquisition and readiness status, which I will continue to use to manage and reform the Department. Now that we have the data – no small feat – we need to use the data to drive and support our decision making. The Department has too many information technology systems that perform similar functions. These need to be reduced and rationalized. If confirmed, I would require the Services and Defense Agencies/Field Activities to migrate from legacy systems to modern systems that already exist inside the Department or elsewhere in government wherever possible instead of developing new capabilities internally. DoD has a long history of not making optimal investments in business systems, and now is the time to capitalize on the expertise that exists in the civilian side of government.”
Base closures. “If confirmed, I will work with my senior advisors and the Military Department leaders to determine whether authorization for a BRAC round is something to consider in the future as we shape priorities. The BRAC process is recognized as fair, objective, and a proven process for closing and realigning installations in the United States. That said, I understand that Congress has expressed concerns about the 2005 BRAC round. If confirmed, I will assess the need for changes to law or policy to address congressional concerns with the 2005 BRAC round. The key will be maintaining the essence of the BRAC process: treating all installations equally, all or none review by both the President and Congress, an independent Commission, the priority of military value, and a clear legal obligation to implement all of the recommendations in a time certain together with all the authorities needed to accomplish implementation (specifically the authority to undertake military construction necessary to implement recommendations).”
MWR programs and family services. “If confirmed, I will support quality of life programs that reinforce a strong military community and focus on those that will help to build and sustain resilient families. My priorities include spouse employment, preventing both domestic violence and serious harm to children, and childcare programs. I will base my decisions on programs that are determined to have the greatest impact on readiness, retention, and resiliency.”
Including military family readiness considerations in evaluating basing options. “These considerations, and others such as housing, and licensure portability for military spouses and other beneficial State-level legislation and policies, are important as they contribute to the overall readiness and well-being of the military family. If confirmed, I will work with the Military Department Secretaries to continue their efforts to develop criteria that will equitably evaluate State and local community actions to support the needs of military families”
Support for reserve component families. “The Department’s approach must focus on both active duty and reserve component members and families. It is imperative that the Department continue to provide support for a geographically dispersed population through a coordinated network of care encompassing support and services provided by the Department and other Federal, State, local, non-profit and private entities. One example of a DoD-wide resource for families is Military OneSource - the Department’s 24/7/365 solution to providing Service members and their families with resources, tools, and information.”
If confirmed, I will explore what needs currently exist, and determine what is available to families wherever they reside in order to identify gaps. Innovative solutions, such as web- based delivery systems, may allow the Department to be more flexible and responsive to the diverse needs of the population. Military OneSource, for example, is a virtually accessible program offering support services from anywhere around the world. The Department should continue to work with other federal agencies, and those in local governments, businesses, and non-profit stakeholders, to ensure support for military families wherever they live and work.
Exchange and commissary consolidation. “If confirmed, I will review the Department’s original recommendations on this issue and will evaluate the savings and efficiencies that can be gained by various service models or consolidations. It is important that any consolidation or shared services model maintains or improves the benefit while achieving desired savings.”
AAFES plans to open chiropractic offices at select installations in the United States beginning this year. This healthcare offering will be consistent from location to location to help ensure continuity of care as PCSs occur.
Veterans shopping benefit one-year anniversary. Yes, it’s been one year since the Department of Defense provided exchange and commissary benefits for 4.1 million disabled veterans. The benefit stumbled out of the gate because of various base access issues associated with increased threat conditions and the pandemic. DoD plans to promote the benefit as the pandemic ebbs.
President Joe Biden is promoting food retailers to provide their workers with back hazard pay as part of a $1.9 trillion economic stimulus plan. The proposal also calls on lawmakers to approve unemployment aid to grocery delivery workers, ride-share drivers and other self-employed people who ordinarily are not eligible for compensation if they lose their jobs. “A number of large employers, especially in the retail and grocery sectors, have seen bumper profitability in 2020 and yet done little or nothing at all to compensate their workers for the risks they took,” the incoming administration said in a document outlining its rescue package. “The president-elect believes these employers have a duty to do right by their frontline essential workers and acknowledge their sacrifices with generous back hazard pay for the risks they took across 2020 and up to today.” The United Food and Commercial Workers International Union (UFCW), which has played a key role in the push to bring back hazard pay for grocery workers, praised Biden for pressing grocers to take action.
Kroger has rolled out new KroGo shopping carts on a test basis at its Madeira, Ohio grocery store outside of Cincinnati. The new carts come with a built-in video screen that is essentially a smaller version of the scanners that Kroger has at its checkout lines. Customers can swipe rewards cards, weigh produce right at the cart, scan the bar codes on items as shoppers plunk them off of shelves, and even put things back and remove them from the tab. The cart gives shoppers a running subtotal of purchases as items are added, helping people stay on budget. Once clients are done shopping, they can scan debit or credit cards and walk out without standing in line. The only things the KroGO carts can’t currently handle are gift cards, coupons, cash, purchases of tobacco or behind-the-counter pharmacy items like certain decongestants, and U.S. government food aid programs like EBT and WIC. Winsight Grocery Business reported that Kroger has yet to say when or if it will roll out the smart carts at more of its 2,700 stores.
Consumers often pay too much, regulators say. American consumers have been forced to eat food- delivery costs sometimes nearly as big as the meals themselves. Regulators are fed up. In addition to new laws boosting compensation and benefits for delivery drivers, restaurant protections such as pandemic-related commission caps have been proliferating at the city and state levels. Consumer protections could be next, according to the Wall Street Journal.
New laws have been costly for delivery players that have been struggling to generate consistent profits lately. On its third-quarter conference call, Uber, which owns and operates Uber Eats, suggested it wouldn’t absorb all of the added costs related to the passage of Proposition 22 in California. Instead, Chief Financial Officer Nelson Chai said he expected additional wage or benefit costs to be passed along to customers. DoorDash and Grubhub say they are doing the same. When the state’s voters opted to keep drivers classified as independent contractors, they didn’t necessarily realize they would be picking up the tab for the added benefits drivers got as part of the deal. Yet, on Uber Eats orders in California as of Dec. 14, for example, consumers’ itemized receipts include a “Driver Benefits” fee, which is explained in the app as a direct consequence of Proposition 22. With Uber’s acquisition of Postmates last year and DoorDash’s purchase of Caviar in 2019, Uber, DoorDash and Grubhub now control roughly 98% of the overall U.S. market in terms of transactions, according to Edison Trends data.
In addition to Proposition 22, a different California ballot measure passed in November will eventually limit businesses’ use of consumer data and how long they can retain it. Eaters’ data has been a bone of contention among delivery platforms and some of the restaurants they serve because the platforms often keep that valuable intelligence to themselves.
Bigger get bigger. Though the pandemic set off a wave of bankruptcies and shuttered stores, most of the biggest retail brands have raked in massive profits. A November report from watchdog Public Citizen found that the nation’s top 15 retailers — including Amazon, Walmart and Dollar General — collectively amassed an additional $14.6 billion in profits in fiscal 2020 compared with 2019.
U.S. military commanders in Alaska have ordered alcohol sales to cease after 10 p.m. on two bases in an effort to control drinking-related mental health issues such as suicide. As of Friday, "alcohol may not be purchased between the hours of 10:00 p.m. and 5:00 a.m. on the installation," according to a post Thursday on the Joint Base Elmendorf-Richardson, or JBER, Facebook page. The decision to limit the time alcohol is sold on the installation was made using information from science-based studies that show decreasing the hours of sale, by [two] or more hours for businesses that sell alcohol, may be an effective strategy for preventing alcohol-related harms (including suicide)," he said in a statement. "This decision was made after considerable debate, through counsel and with contributions from mission partners and leadership across JBER. Caring for people remains the number [one] priority of JBER leadership."
Dollar General and Lidl incentivize use of vaccine. Dollar General workers who get the coronavirus vaccine will be rewarded with four hours of pay, the company announced Wednesday, making it one of the first major retailers to incentivize inoculations for its workforce. “We do not have an on-site pharmacy and currently do not have systems in place for employees to receive a vaccine at their work site,” the company said. “We do not want our employees to have to choose between receiving a vaccine or coming to work.” Also, Lidl has announced they will provide extra pay for employees who get the vaccine.
ALA announces Foodservice Council. Several foodservice companies are joining ALA and the ALA Board has established a working council to represent the military nonappropriated and appropriated food service sectors. The need to address the concerns of manufacturers, prime vendor distributors and the military and government agencies, which are responsible for appropriated and non-appropriated feeding, is an under-served element which ALA seeks to provide advocacy and strength. ALA will be working to bridge the gaps that exist between industry and DOD general foodservice. The ultimate goal is to improve the quality of life of Servicemembers while enhancing business practices between industry and the DOD agencies.
Joining Forces redux. ALA led the way in military family veteran and family member employment for First Lady Jill Biden’s and former FLOTUS Michell Obama’s Joining Forces initiative and ALA and its industry members were recognized by the Obama White House for it hiring programs. We’ll be working with our affiliated family advocacy associations and the White House to highlight resale and supporting industry contributions to the revived Joining Forces effort. And resale agencies are the largest and most consistent employer of military folks with jobs that are transferable from bases to base. Now, the Army Times is reporting that the Joining Forces initiative that supported military families and veterans is coming back to the White House with President-elect Joe Biden’s administration under the office of the future first lady Jill Biden, who helped established it in 2011.
“I know the love and strength and resilience that makes this community so unique, and it’s such a joy to be a part of it, and a privilege really have the chance to serve it,” Jill Biden said Thursday during the virtual announcement with some military family organizations.
Jill Biden also announced Rory Brosius, the military families engagement leader for the Biden transition team, would be the new executive director of Joining Forces and a special assistant to President Biden. Brosius, the spouse of a Marine veteran, was previously the deputy director of Joining Forces during former President Barack Obama’s administration and then an adviser for military families to the Biden Foundation, according to a news release. “This is my community, and it’s one I care deeply for. The world has changed since Joining Forces started in 2011. And I know that we have work to do to make sure that we are as timely and as targeted as we need to be. I take my mandate and our bias for action very seriously,” Brosius said during the announcement.
Condolences to the family of Steve Hallum, a San Antonio market sales representative for commissaries and exchanges who passed away. Mr. Hallum worked as a military resale sales representative in the Texas market for over 20 years.
NDAA provisions on Federal contracting. In my earlier emails I covered the direct resale-related provisions of the FY 2021 Defense Bill that was the fiscal year 2021 Defense bill that was enacted on January 1, 2021. Below are provisions related to federal contracting with implications for resale contractors.
Section 833 requires the DoD to publish a list of OT (other transaction) authority consortia used to disseminate OT contracting opportunities. This listing will make it easier for companies to identify relevant consortia and, in turn, potential projects.
Section 2866(c)(1) requires the Secretary of the Army to establish a pilot program for the development and use of an online real estate inventory tool to identify existing space available at Army installations. The provision expressly requires the Army to consider innovative approaches, including the use of OTs and commercial off-the-shelf technologies, for this program.
Section 819 amends Section 847 of the FY2020 NDAA, which requires covered contractors and subcontractors (companies with a non-commercial item contract or subcontract with a value in excess of $5,000,000) to make disclosures about beneficial ownership and control and for DoD to perform a FOCI risk assessment as part of the responsibility determination. New Section 819 amends the prior section by requiring that DoD periodically assess contractor compliance with the FOCI disclosure requirements, create procedures for addressing relevant changes in ownership, and implement Section 847 through revised policies and training by July 1, 2021. Section 835 requires the DoD to develop requirements for software security criteria to be included in solicitations for commercial and developmental software solutions and the evaluation of bids, and to develop procedures for security review of code, in coordination with cybersecurity efforts.
Section 885 amends 41 U.S.C. § 2313(d) to require disclosure of beneficial ownership in a database maintained by GSA with information on contractors and grant recipients with a federal agency contract or grant in excess of $500,000. This section closely relates to Section 6403 which updates the Anti- Money Laundering reporting requirements to include the reporting of beneficial ownership information for certain companies as part of any bid or proposal for a contract above the simplified acquisition threshold.
Section 814 amends 10 U.S.C. § 2306a by establishing a standard $2 million threshold for application of the requirements for certified cost or pricing data under Truth in Negotiations/Truthful Cost or Pricing Data statutes.
Section 816 modifies the statutory procedures for commercial-product and commercial-service determinations by contracting officers at the DoD. These changes are designed to foster greater consistency for determinations of commerciality across the Department.
Section 883 prohibits the DoD from awarding a contract unless the contractor represents that (i) it does not require its employees to sign internal confidentiality agreements or statements that would prohibit or otherwise restrict such employees from lawfully reporting waste, fraud, or abuse related to the performance of a DoD contract, and (ii) it will inform its employees of the limitations on such confidentiality agreements. Currently, FAR 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements prohibits inclusion of similar restrictions in internal confidentiality agreements and requires contractors to notify employees of the impact that the clause has on any pre-existing agreements to the extent that such prohibitions and restrictions are inconsistent with the prohibitions of this clause but there is no requirement for a broadscale notification about such prohibition or affirmative representation on the part of DoD contractors.
Section 815 amends the prompt payment provision of 10 U.S.C. § 2307 to require accelerated payments within 15 days after receipt of a proper invoice for the amount due, thereby removing the ability of the parties to agree in the contract to a later payment date.
Section 862 transfers and consolidates the certification of Service-Disabled Veteran Owned Small Businesses (SDVOSBs) and Veteran Owned Small Businesses (VOSBs) from the Department of Veterans Affairs (VA) to the Small Business Administration (SBA). Section 862 also phases out self- certification of SDVOSBs for the purposes of federal-wide SDVOSB contracting and replaces it with a requirement for affirmative certification by the SBA. The VA will continue to verify an individual’s status as a veteran or service-disabled veteran. Section 862 requires that the SBA’s SDVOSB and VOSB certification program begin within 2 years after enactment of the Act. When the new consolidated program is in place, VOSBs and SDVOSBs will have one year to file a certification application with SBA.
Section 863 lengthens the lookback for employee-based size standards from 12 to 24 months. This follows the Small Business Runway Act’s lengthening of the lookback period for receipts-based size standards from three to five years. In order to avoid the confusion that followed the enactment of the Small Business Runway Act of 2018 as to when concerns can begin certifying against the lengthened lookback period, the Act specifies that this section will take effect one-year after the date of enactment.
Section 864 amends various portions of the Small Business Act to increase the maximum award price for sole source manufacturing contracts to small disadvantaged businesses, WOSBs, and HUBZones from $5 million and $6.5 million to $7 million.
Section 866 amends the Small Business Act to provide assistance with accessing federal government contract opportunities to small business concerns with principal offices in the U.S. territories of the U.S. Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands. For four years following enactment, SBA will provide two incentives to mentors who work with small business concerns in such territories, including positive past performance consideration for mentors that award subcontracts to protégés in these covered territories and the ability to count the costs incurred for providing training to these protégés towards the mentor’s small business subcontracting plans.
Section 868 requires contracting officers to consider two types of past performance submitted by small business concerns: past performance as a first-tier subcontractor and work performed as part of a joint venture. Section 868 amends 15 U.S.C. § 644 to allow a small business concern, if it has no relevant past performance of its own, to rely on the performance of a joint venture in which it took part. The small business is required to describe its duties and responsibilities as part of the joint venture within its proposal. Section 868 also amends 15 U.S.C. § 637 to require prime contractors to provide small business concerns with a record of the entity’s past performance as a subcontractor so that the small businesses may use that record in future proposals. Contracting officers will be required to consider this experience. SBA must issue rules implementing these changes within 120 days.
Section 869 provides that active participants in the SBA’s 8(a) business development program as of September 9, 2020 (even if they had suspended their status at that time) may elect to extend their participation for an additional year. SBA has 15 days after enactment to issue regulations implementing this change on an emergency basis.
Section 886 repeals Section 827 of the FY2018 NDAA, which called for the DoD to roll out a pilot program to determine the effectiveness of requiring contractors with revenues in excess of $250 million to reimburse the DoD for costs incurred in defending against protests filed between October 1, 2019 and September 30, 2022 that were denied by the GAO.