doing business with dod & the intel community - behind closed doors #govcon

Doing Business With DOD &

The INTEL Community Monday, November 28, 2016

Hosted By:

Jennifer Schaus & Associates

In Collaboration With:

GMU PTAP (George Mason University Procurement Technical Assistance Center)

and AED (Arlington Economic Development BizLaunch)

ABOUT US: Jennifer Schaus & Associates is a specialized consulting firm based in downtown Washington DC. The organization assist companies with federal government contracting services. This includes:

business plans,

small business Sub-Contracting plans,

capability statements,

proposal writing,

sales & business development,

GSA and VA Schedules,

SBA 8(a) Certification and more. Clients are domestic and foreign, both product and service firms, mid-tier and large businesses. Ms. Schaus is a frequent speaker and contributor to government industry publications. Jennifer holds a BA from Towson University. She has completed the Leadership Accelerator from UC Berkeley and holds a Certificate in Executive Leadership from Cornell University. For More Information Please Visit: http://www.JenniferSchaus.com or Call Us At: 2 0 2 – 3 6 5 – 0 5 9 8

Please Join Us

200+ Federal Government Contractors At

Government Contractors Holiday Soiree – 2016

Tuesday, December 20, 2016

Location: Terrace Level of The John F Kennedy Center

Time: 5.30pm – 7.30pm

This is a NETWORKING Event, not a conference.

All Ticket Sales are Final. No Refunds.

Government Contractor With CAGE CODE: $30.

Non-Government Contractor: $60 Sponsorships Are Available.

INFO & REGISTRATION: https://govconholiday16.eventbrite.com

Doing Business With DOD &

The INTEL Community

PRESENTERS SLIDES

"Understanding DoD Nuances & Winning Defense Contracts" (Ret.) VADM Lou Crenshaw "Best Practices for Surviving A DCAA Audit" Alex Brager & Kevin Swatt (E Cohen CPAs) "Contracting and the National Industrial Security Program" Jennifer Zucker, WileyRein "The Nuts, The Bolts & The Requirements After the Clearance" Eleanor Bewley, OCEUS Networks "Cracking The Nut On The Intel Community" Moderator - Tony Porter, Eastern Foundry Panelist #1 - Graham Plaster, The Intel Community Panelist #2 - Tabetha Chandler, GreenCyber Panelist #3 - Cheereka Montgomery, P1 Strategies

"Understanding DoD

Nuances & Winning

Defense Contracts"

(Ret.) VADM Lou

Crenshaw

Doing Business with DoD

VADM Lou Crenshaw USN (Ret.) Crenshaw Consulting Associates

November 28th, 2016

But First . . . . .

• Keep them simple.

• Use few words.

• Make sure the words are spelled

corectly and numbers add up.

• Have a time budget for your slides.

• DON”T READ THE SLIDES!!

• If they can’t see it, why use it?

• Don’t read the slides.

• Don’t use Power Point.

Lou’s Power Point Rules

Use Agency Small Business Offices

Join a Professional Organization

Read the RFPs Carefully

• Use all the options • Don’t over deliver • Answer all the questions • Don’t waste words • Demonstrate understanding • Review all the FAR paragraph

cites in Section I • Focus on people skills, not

people • Always, Always get a debrief

Watch Out!!!

Watch Out!!!

Unhappy COs

Where’s my deliverable?

Watch Out!!!

Ethics

Be Prepared

• Funding uncertainty • Holidays • Stop Work Orders • Protests • Reorganizations • TFTCOG • Long waits for clearances • Terminations for Convenience • Time to develop relationships • Shifting priorities • Beware of “contractpation”

LPTA

Strategies for Lowest Price Technically Acceptable

Bids

Thoughts on LPTA

• Use client risk aversion to your advantage • Know the guidelines (FAR, BBP 2.0, DFAR, etc) • Incumbent is in a tough spot • No points for extra effort • Factors in “Technically Acceptable”

• Credibility, quality, schedule, capacity, reputation, past performance, personnel qualifications, project management, approach, risk management, facilities

• Focus on minimums, not differentiation • Lower rates by teaming • TA must be comprehensive…must clearly define government’s

minimum requirements (low risk, high probability of delivering, etc) • LPTA winning proposals focus on proving you are the only acceptable

offerer. • “Buying” the work is a one-time silver bullet for most firms

Questions

"Best Practices for

Surviving A DCAA

Audit"

Alex Brager & Kevin

Swatt (E Cohen

CPAs)

Presented by: Alex Brager, CPA and Kevin Swatt, CPA

http://www.dcaa.mil/

Presented by Alex Brager, CPA and Kevin Swatt, CPA


mailto:[email protected]


"Contracting and the

National Industrial

Security Program"

Jennifer Zucker,

WileyRein

Contracting and the National Industrial Security Program

Jennifer S. Zucker November 2016

Roadmap National Industrial Security Program (the “NISP”)

Personnel Security Clearances

Facility Clearances Requirements

The Facility Clearance Process

Foreign, Ownership Control and Influence (FOCI)

Mitigating FOCI

Common Questions

51

National Industrial Security Program NISP Established by Executive Order 12829, (January

8,1993)

DSS administers the NISP for DoD and 24 other Federal agencies • DoD Directive 5220.22 (“NISP”, 5/18/11)

• DoD Directive 5105.42, (DSS Charter, 8/3/10)

Other references • DoD 5220.22-M, (NISPOM, 2/28/06)

• DTM 09-019, (Policy Guidance for FOCI, 9/2/09)

• Guides and forms at www.dss.mil

• DoD 5220.22-R (Industrial Sec’ty Reg, 12/4/1985)

52

http://www.dss.mil/

Personnel Security Clearances Adjudicative Guidelines

• Allegiance to the US • Foreign Influence

• Foreign Preference • Sexual Behavior

• Personal Conduct • Financial Considerations

• Alcohol Consumption • Drug Involvement

• Psychological Conditions • Criminal Conduct

• Handling Protected Info • Outside Activities;

• Use of IT Systems

Due Process – Defense Office of Hearing and Appeals

53

FCL Requirements in Contracts FAR Clause 52.204-2, “Security Requirements” • Prescribed by FAR 4.404(a) (see also FAR 4.402 and 4.403)

Contractor executes DD Form 441 “Security Agreement”

NISP Operating Manual (NISPOM) (DoD 5220.22-M, 2/28/2006) is incorporated into contract

Contracting activity issues DD 254 “Contract Security Classification Specification” • Identifies specific security requirements and classification

guidance

54

Contracting Officer Determines need for classified access

Verifies facility clearance and safeguarding approval

• Possessing/Non-possessing;

• IT requirements?

Issues sponsorship letter if necessary

Accurately reflects security requirements for both the procurement process and contract performance

55

Facility Clearance Process Contractor is sponsored for FCL by contracting

activity or another cleared company

• Sponsorship letter is sent to DSS Facility Clearance Branch

• Contractor must have or obtain CAGE code

DSS contacts contractor with explanation of the FCL process and required documentation

DSS assigns the contractor to a local DSS Industrial Security Field Office for initial and follow-on visits

56

Requirements for Facility Clearance DSS must determine that the contractor meets five

threshold requirements before issuing the FCL. The contractor must:

1. Need access to classified information in connection with a legitimate US Gov’t or foreign gov’t requirement (sponsorship letter and later DD 254 fulfill this requirement)

2. Be organized and existing under the laws of any of the U.S. states, DC or an organized U.S. territory

NISPOM (DoD 5220.22-M) sections 2-102 and 2-104

57

Requirements for Facility Clearance (cont.) 3. Have a reputation for integrity and lawful conduct in its

business dealings • Company and key managers must not be debarred or suspended

from Federal contracting

4. Not be under foreign ownership, control or influence (FOCI) to such a degree that granting the FCL would be inconsistent with the national interest

5. Senior management official, facility security officer (and Board Chair), and Insider Officer must each have personnel clearances at the level of the facility clearance

58

FCL Closeouts Administrative termination

• No further requirement for access to classified

• At company request

Due to non-compliance

• FCL invalidation – no new classified work, but allows contractor to continue classified performance, with contracting activity approval

• FCL termination

Contracting activities are notified of all invalidations and terminations for cause

59

FOCI Analysis begins with SF 328

FOCI factors (see NISPOM 2-301 and USD(I) DTM 09-019)

Does a foreign interest hold a majority or substantial minority position in the company?

• Minority position deemed substantial if it is greater than 5% of ownership interest or greater than 10% of voting interest

60

Mitigating FOCI Board Resolution

• Minority foreign interest with no Board representation

• Doesn’t affect available FCL levels

Security Control Agreement

• Minority foreign interest with Board representation

• Doesn’t affect available FCL levels

• Requires disinterested cleared Director(s) approved by DSS

61

Mitigating FOCI Special Security Agreement

• Company effectively owned or controlled by foreign interest

• Requires disinterested cleared Directors approved by DSS, as well as visit and communication controls overseen by Gov’t Security Committee of Board (composed of the cleared Directors)

• Allows foreign owner to be represented on Board

• Permits FCL up to SECRET, but no access to Proscribed Info without National Interest Determination

62

FOCI Mitigation Proxy Agreement (or Voting Trust)

• Company effectively owned or controlled by foreign interest

• Voting interests in cleared company given to at least three cleared proxy holders or trustees approved by DSS

• Foreign owner not represented on Board

• No restrictions on FCL level

63

Specific FOCI Issues National Interest Determinations (NIDs)

• Companies cleared under an SSA cannot have access to proscribed information (TS, most COMSEC, RD, SAP, SCI) unless the contracting activity issues a finding (i.e., NID) that disclosure of the proscribed information will not harm the national interest of the U.S.

DTM 09-019, Attach. 2, para. 5.(c)

64

Specific FOCI Issues DoD or DoE contracts

• Cannot be awarded to a entity effectively controlled by a foreign government if

• Contract performance requires access to proscribed information

• Without a waiver from the Secretary concerned (delegated in DoD to the USD(I))

10 USC 2536; DFARS 209.104-1(g)(ii), 252.209-7002

Proxy agreement is deemed to negate foreign government control (DTM 09-019, Att. 2, para. 5(d))

65

Common Questions Can a contractor be sponsored for an FCL without

having been awarded a classified contract?

• Yes, if the contractor requires the FCL in order to compete for the contract

Common causes for FCL invalidations

• Uncleared key management personnel

• Processing classified information on unaccredited systems

66

Contact Information Jennifer S. Zucker [email protected]

202.719.7277

67


"The Nuts, The Bolts

& The Requirements

After the Clearance"

Eleanor Bewley,

OCEUS Networks

THANK YOU FOR ATTENDING.

FOR MORE INFORMATION ABOUT OUR

SERIVCES, PLEASE VISIT

http://JenniferSchaus.com

or Call Us At 2 0 2 – 3 6 5 – 0 5 9 8

doing business with dod & the intel community - behind closed doors #govcon

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