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The Procurement Lawyer Spring 2024

Recap of the 2024 Federal Procurement Institute: What Did We Learn?

Summary

  • The Federal Procurement Institute is the ABA Section of Public Contract Law's flagship event.
  • Panel discussions explored new developments in cybersecurity, the federal supply chain, and classified information in bid protests.
  • Other topics included whether climate change has impacted federal government construction.
Recap of the 2024 Federal Procurement Institute: What Did We Learn?
Patrick Herrera; plherrera via Getty Images

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From March 6–8, 2024, the ABA Section of Public Contract Law (PCL) sponsored its flagship event, the annual Federal Procurement Institute (FPI), in Annapolis, Maryland. Hundreds of members and nonmembers attended from across the country for the event’s 30th anniversary. Here is a brief summary of what was discussed and what we learned.

1. Cybersecurity. Two panels explored the emerging risks relating to cybersecurity. The first panel explored current regulatory and compliance risks with “Recent Developments in Cybersecurity: On the Front Lines.” The second panel focused on “Preparing Critical Infrastructure for a Post-Quantum Computing World.”

  • Townsend Bourne (Sheppard Mullin) led the first panel, with Mike Glennon (Department of Defense, Acquisition & Logistics), Sara McLean (Department of Justice), and Roger Hipp (Department of Homeland Security) discussing the latest updates with the proposed cybersecurity rules, including the Cybersecurity Maturity Model Certification (CMMC). The panel also discussed the DOJ’s ongoing Civil Cyber Fraud Initiative and the SEC’s recent cybersecurity risk management and disclosure rules.
  • On the infrastructure panel, Umer Chaudhry (Cooley), Sara Kasper (Sandbox AQ), and Ryan McKenney (Quantinuum) explored the emerging risks to public infrastructure as quantum computing technology improves, placing aging infrastructure increasingly at risk. The panel discussed recent federal directives to strengthen public infrastructure, including initiatives to help make our infrastructure more resilient in the face of improved quantum computing.
  • Separately, during the Council Meeting, Sandeep Kathuria (L3Harris) and Weiss Nusraty (Boeing) guided a group discussion through a series of hypotheticals relating to the practical difficulties in implementing the new proposed Cybersecurity Maturity Model Certification (CMMC) program rule—in terms of ensuring compliance both within your own company and also down through the supply chain and among external service providers.

2. Supply Chain. Three of our panels explored issues relating to the federal supply chain.

  • The first panel, “How National Security Impacts the Federal Supply Chain,” was led by Michael Mutek (Aerojet Rocketdyne), facilitating discussion among Niki Carter (BAE Systems), Lisa Miller (Northrop Grumman), and Sivram Prasad (Department of Defense, Acquisition & Logistics), regarding the logistical intersection of “practical” and “policy” in the federal supply chain. The panel discussed current events around the world and how those events impact what the government can (and cannot) purchase, and they also offered helpful insights on what the defense industry is doing to better secure its supply chains.
  • The second panel discussed “Increasing Competition at the Component Level: The Legal Aspects of Modular Open System Approaches.” The panelists included moderator James McEwen (Lockheed Martin), Richard Gray (Department of Defense, Intellectual Property Cadre), Erin Felix (Polsinelli), and Jose Recio (Collins Aerospace). Richard Gray described the DOD’s new Modular Open Systems Architecture (MOSA) program, emphasizing that the government is trying to streamline its technology purchases by focusing more on solutions and less on acquiring the underlying data rights. The panel discussed how this innovative approach will change not only how the government buys technology, but also how it develops products, how it solicits new requirements, and what it will require in data and technology deliverables.
  • The third panel discussed “Diversifying the Defense Industrial Base: How Can the Department of Defense Attract Small Businesses to Defense Contracting.” Led by Ambika Biggs (Hirschler Fleischer), David Busigo (Department of Defense, Office of Small Business Programs), Christopher Clarke (Small Business Administration), and Stephen Ramaley (Miles & Stockbridge) discussed how the DOD is working to implement its Small Business Strategy, steps that the DOD is taking to prioritize small business set-aside contracts, and initiatives that the DOD is implementing to reduce the barriers to entry for small businesses.

3. Classified and Controlled Unclassified Information in Bid Protests. Day 2 began with a very timely panel discussing “Special Handling Requirements for Classified and CUI Materials in Bid Protests.”

  • Moderated by Sandeep Nandivada (Morrison & Foerster), the panel included a variety of perspectives from Dana Chase (US Army), Peter Tran (Government Accountability Office), and Judge Marian Blank Horn (US Court of Federal Claims).
  • The panel explored best practices in dealing with classified and controlled unclassified information (CUI) when filing a bid protest. There seemed to be an acknowledgment that government marking of information as “CUI” is on the rise, meaning that the difficulties will not be going away.

4. Suspension and Debarment. Next was a panel discussion exploring “Hot News in Debarment and Suspension.”

  • Moderated by Paul Khoury (Wiley), the panel included Rodney Grandon (Affiliated Monitors), Jude Sunderbach (Department of Defense, Cyber Crime Center (DC3)), and Jennifer Ward (Department of Homeland Security).
  • The group reviewed the current state of affairs for suspension and debarment regulations, including the new January 2024 proposed rules to update the FAR and how those proposed rules align with the nonprocurement common rule at 2 C.F.R. Part 180. The panel also discussed trends in suspension and debarment, as well as what companies can do to reduce the risk of suspension or debarment when under investigation by the government.

5. Climate Change. As part of an optional luncheon program, another panel discussed the question “How Has Climate Change Impacted Federal Government Construction?”

  • Aaron Silberman (Rogers Joseph O’Donnell) facilitated an interesting discussion among government personnel Elliot Doomes (General Services Administration), Daniel Murray (US Army Corps of Engineers), and Creighton H. Wilson (Department of Defense, Environment Energy & Installations).
  • The panel discussed a variety of topics, including the government’s increased use of disaster response contracting in response to climate change, new greenhouse gas (GHG) monitoring requirements, and predictions as to how the government’s post-2024 election priorities might change.

6. Ethics. The conference closed with a dynamic (and entertaining) discussion on “Navigating Ethical Obligations with Emerging Technologies.”

  • Judge Mary Ellen Coster Williams (US Court of Federal Claims (ret.), Resolute Systems) unleashed Lucian T. Pera (Adams & Reese) and Ed Walters (vLex), who explored a number of ethical issues raised by emerging technologies.
  • The panel discussed how emerging tools can help lawyers do their jobs better, while also highlighting several high-profile examples of people who learned the hard way that technology is not infallible.

7. Networking and Council Meeting.

  • Several networking opportunities were held, including a special Women’s Networking Event, Receptions, and No-Host Dinners where Section members were able to explore Annapolis and get to know other members of the Section.
  • FPI also included a Council Meeting, led by Section Chair Eric Whytsell (Stinson) and Chair-Elect Jason Workmaster (Miller & Chevalier).

Overall, it was great conference, where we had the chance to explore interesting and timely issues in federal procurement. We thank all of the speakers for their insights. And we also thank our sponsors. Special thanks to the Conference Director, Sheila Armstrong (K&L Gates), and Conference Co-chairs Mitchell Bashur (Verizon), Jason Carey (Covington), Justin Chiarodo (Blank Rome), Susan Warshaw Ebner (Stinson), and Derek Santos (US Air Force).

We hope to see you at our next Section event, the Spring Committee Showcase on May 30, 2024.