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Artificial intelligence brings a fresh set of procurement challenges. And it seems like every agency is buying it in one form or another. The White House last month issued guidance on what it calls responsible acquisition of AI. Joining the Federal Drive with Tom Temin with the implications for intellectual property and who owns what, Haynes Boone procurement attorney Dan Ramish.

Interview transcript: 

Tom Temin Dan, this update with which was late September, that actually supersedes an earlier memo on the same topic.

Dan Ramish Well, Tom, it doesn’t actually supersede it. It supplements it, it expands on it and builds on it. Both the earlier memo M 2410 and the Biden administration’s executive order on AI 14110 Safe, secure and Trustworthy Development and Use of artificial intelligence. So this new memo M 2418 focuses on acquisition of artificial intelligence by government agencies and expands on the earlier memo, talks about cross-functional collaboration and interagency collaboration around AI, which has been a big theme. The government wants to make sure that different agencies are talking to each other in how they’re learning to use AI and sharing best practices and also lessons learned when things go wrong.

Tom Temin And when you are acquiring. I guess maybe we should start with what are you actually acquiring? Because in some cases you are basically buying the services of an algorithm and you produce your own results, but you could also, in other cases, be buying a software application. So is that part of the complication here?

Dan Ramish Well, so the memo talks about agency procurement of AI systems and services. Services suggests procurement of AI on a you know, as a service model, which is a common method of software delivery these days. Certainly an AI system, you would think more of a software application that the government would obtain maybe through the cloud the way things are delivered these days.

Tom Temin And so what is unique here with respect to intellectual property, I guess, is the question?

Dan Ramish Well, Tom, there are a number of specific considerations that arise in the context of AI that were raised in the earlier memo. And this new memo talks more about them. So the earlier memo simply pointed out that procurement of AI has to be consistent with applicable intellectual property, law, regulation and policy. So recognizing that AI procurement occurs within the broader legal context, both the legal context that applies to all intellectual property and also the government procurement, legal context, the Bayh-Dole Act for patents and the technical data statute and the technical data and computer software rights regulations. So a procurement occurs in that context, but there are a lot of unique features that aren’t directly addressed within the regulations or maybe go well beyond, in some cases what the regulations contemplate. Incidentally, general intellectual property law in the United States is still trying to figure out AI and a number of features of AI. So there are legal questions about whether copyrightable material can be used to train AI without running afoul of the copyright law, whether creations of an artificial intelligence system can be protected through copyright or through patent. So it’s really a wild West across the board. But then you throw in some special considerations when the government is the one buying the AI. And that’s part of what this memo illuminates. So the government is recognizing increasingly in both of these memos that data is really an asset that the federal government has a lot of unique data that no one else has and a volume of data that is valuable. So treating data as an asset is one of the themes of both the prior memo and this memo from OMB talking about handling of data and data improvements, cleaning and labeling to treat it as a critical asset so that can be used in in AI training and operations moving forward.

Tom Temin Data also then applies to what is produced by the AI.

Dan Ramish Both the input data that’s used to train the AI and to operate the AI, the iterative improvements of an AI model and also the outputs of an AI are significant for intellectual property purposes and the parties need to think about who owns them, who owns the input data, who owns the output data, who owns the improvements to the AI, how the data needs to be handled under the contract so that it’s usable.

Tom Temin We are speaking with Dan Ramish. He’s a procurement attorney with Haynes Boone. And it sounds like these concerns are commercial and governmental for anyone buying AI. Does the government have any unique concerns here that are addressed in this memo?

Dan Ramish Absolutely, Tom. So two categories of AI that were addressed, particularly in the prior memo, the 2410 memo, were safety impacting and rights impacting AI, as you can imagine. Right. The. Given the different activities of the federal government, there are activities that implicate the legal rights of people, whether that’s their civil rights, property rights, ability to get credit, anything across the board. There are particular concerns about how an eye goes through any decision making process that could affect the legal rights of people. And the other major bucket is safety impacting air, which has some implications for human safety or health, or where if something goes wrong, it could cause injury or other harm.

Tom Temin Sure. Well, I guess the question becomes how should government and how should I contractors or contractors using air proceed? I mean, what are some of the best practices, if we have them at this early stage in this whole evolution?

Dan Ramish So this new memo really takes a strong line in encouraging agencies to plan ahead and avoid vendor lock in as they refer to it. Some of the language is fairly innocuous as far as just ensuring that the rights and deliverables that are provided for in the contract meet the agency’s mission. But in some cases the memo goes significantly further in talking about requiring vendors to transfer knowledge to agency staff to allow them to essentially transfer the A.I. system at the end of the contract, or requiring vendors to promote data and model portability. Again, their interests on both sides. The agency needs to make sure that they are buying AI systems that it will be able to use and that that won’t die at the end of the contract and that they aren’t stuck with a single vendor for a long term contract. But at the same time, the contractor has interests in their own proprietary intellectual property and that may be the very foundation of their whole business, right?

Tom Temin So then you really have to negotiate carefully and it sounds like almost that you need a specialized approach for AI, at least until this becomes normalized and that could be years. But you’re buying something fundamentally different than other software and software services.

Dan Ramish That’s right. And you don’t have some of the same infrastructure that you have for other types of procurements. As I mentioned before, it’s not yet totally clear under copyright law whether materials that are created by AI are subject to copyright protections. So if there isn’t a broader legal framework to plug into, then the government and the contractor need to come up with some other way of dealing with or protecting the outputs of an AI.

Tom Temin In some ways, the acquisition as a head of the whole intellectual property framework. I mean, I read about a podcast producing service from Google the other day where you dump documents into it and it produces a conversational two person dialog that you can listen to, like a podcast, even though no human actually spoke a word, it’s all generated. Well, if you and I both dump the same documents into the same algorithm and it produces the exact same thing, then who can copyright that? Or if we both dump the same thing in and something else has happened in between and it produces different results, Can that be copyrighted? That’s the type of question I guess people don’t really know the answer to yet.

Dan Ramish That’s right. And along with that, there are other concerns that arise. And so one of the recommendations that the memo makes for agencies is to conduct careful due diligence to the supply chain of the vendors data. And in part, that’s thinking about the potential for rights impacting or safety impacting AI. They need to understand whether the training data could include any sources of bias or quality problems that could call into question whether the decision affecting rights or safety was proper. Also, there are cybersecurity concerns when it comes to training data, which the memo mentions need to understand, evaluates the data used in model training and the models so they can understand the AI risks such as data poisoning, which is cybersecurity attacks, the training data or also data leakage, unintentional exposure of sensitive data that was used to train a model.

Tom Temin So there’s a lot of branches to this. But on the intellectual property front, the rule then is be specific and make sure the contractor and you as the agency have the exact same understanding before you sign anything.

Dan Ramish That’s right. Well, and all of these factors have intellectual property implications because a contractor might closely hold what kind of training data they’re using. But the government may have specialized interests in knowing what that training data is or otherwise understanding the model because of the stakes of the government’s.

Tom Temin Dan Ramish is a procurement attorney with Haynes Boone. Well, thank you for outlining what sounds like a really complicated quagmire area for people to be careful of.

Dan Ramish Tommy, in the modern era, we’ve gone from procurement of goods to procurement of services. AI may be the next major procurement category for the federal government. It’s important for the government and for industry to work together to get it right.

Tom Temin And we’ll post this interview at federalnewsnetwork.com/federaldrive. Subscribe to the Federal Drive wherever you get your podcasts.

Copyright © 2024 Federal News Network. All rights reserved. This website is not intended for users located within the European Economic Area.

Tom Temin And let’s begin with the seniors program itself. Tell us what it’s all about, where it fits in with AmeriCorps mission. I think a lot of people sometimes forget AmeriCorps is a federal agency in the first place.

Atalaya Sergi AmeriCorps, the federal agency. Our mission is to improve lives, strengthen communities and fosters civic engagement through service and volunteering. And so that is our task for the nation. And AmeriCorps Seniors is an office within the agency that focuses on engaging older adults. So adults 55 years of age or more in national service in their communities. We seek to keep them engaged, to bring all of the lived experience, their knowledge, their skills and talents to the community so that they can continue to make their communities a rich place to live.

Tom Temin And what are the types of things they actually do in those communities?

Atalaya Sergi We have four programs. Our three signature programs, the first one is the Foster Grandparent program. So that one partners older adult volunteers with children and youth helping them with their academic and social emotional development. So the volunteers are tutors and mentors. Then we have the Senior Companion program where the volunteers help other older adults or those who are living with disabilities to remain in their homes and live independently as long as they can. And they also give respite support to caregivers. And then our third signature program is RSVP. And that program kind of becomes the face of their community. So the grantees who have grants, they decide what is the thing in their community that they need to focus on. And they recruit volunteers to do that work. So RSVP does everything from food security to supporting people with their taxes to supporting veterans and military families and everything in between. Right now, we probably have a lot of our RSVP volunteers doing disaster support in the places that have been impacted recently. And then our fourth program is a smaller program. It doesn’t get a lot of press, because it’s really an opportunity to test new things, test new ways of engaging older adults in service and new ways of supporting older adults. It’s called the Senior Demonstration program. And right now we have two senior demonstration opportunities that have grantees working in them. One is focused on using a service as a pathway back to employment for older adults that are interested in going back into the workforce or changing careers. And then the other one is partnering with our native nations and indigenous communities to develop programing that is more in alignment with their cultural practices and the norms of their nations. So those are our programs.

Tom Temin All right. And with the millions and millions of boomers and many of whom are complaining, I don’t know what I’m going to do when I retire, I would think you’d have millions of people pounding on the doors.

Atalaya Sergi We have about 140,000 volunteers that volunteer through our grantees. We have grantees in every state and two territories. Organizations that get our grants are nonprofits, faith based nonprofits, tribal nations, local government agencies can get our grants. And so we have about 900 plus, almost a thousand grantees that are supporting these hundred and 40,000 volunteers to work in their communities.

Tom Temin We’re speaking with Atalaya Sergi. She’s director of AmeriCorps Seniors. And let’s get to the part about changing the rules. You went through an extensive rulemaking that is now finalized. What were you trying to accomplish with the change in rules?

Atalaya Sergi What we wanted to do with the changes in our rules was to remove barriers for individuals to serve in AmeriCorps. Seniors, help make it more streamlined for individuals to come and volunteer. And also supporting our grantees to make things a little bit more flexible for them, for them to be able to really be responsive to their local community needs and the unique needs that they have with some of the changes in our volunteers and also removing administrative burden where we can so that they can really be focused on the work in their communities and supporting their volunteers to do that.

Tom Temin And what do you feel were the main barriers? There’s one, for example, about a modernized income calculation. What’s that all about?

Atalaya Sergi We wanted to look at how the income for our foster grandparent and senior companion programs was calculated. So to be a volunteer in foster grandparent senior companion, and to receive the modest $4 service hour stipend, you have to be within 200% of poverty. And so the whole focus for those programs is also to engage older adults that have lower incomes and remove the cost of volunteering so that they can participate and they can be engaged in community. And so when we looked at some of the things that were in the calculation of income, and mind you, foster grandparents was our very first program that started in 1965, Senior Companions was in 1974.

Tom Temin So the first three recipients are grandparents now.

Atalaya Sergi Yes. So those programs still have things that were from those times in some of the rules that we were looking at. And so for income calculation, we noticed that there were some things in the calculation that were not mandated or required income. They were very subjective. So it was things like income that you might receive from a family member. Well, we all know that even in my own family, yes. We as children and grandchildren, we sometimes provide our parents with some extra funds here and there for things that they want to do. But it’s very dependent upon whether we have extra money that particular month. And so because this income really ties back to whether someone can participate in the program or not, we didn’t want to just have things that were not mandated, not permanent. We didn’t want temporary things to be impacting someone’s ability to participate, because maybe over the last two months, your daughter has been able to give you extra funds. But that’s not true every month.

Tom Temin Sure. Is it possible for someone to volunteer and forego the stipend because they have means and they just want to help?

Atalaya Sergi For the Foster Grandparent Senior Companion program, about 10% of any grantees a volunteer pool can be those that are over the income. Because we do want to keep that open. We want to have that open to those that can. But because those programs were also designed specifically to engage volunteers who had lower incomes and make it possible for them to volunteer, we try to keep that 90% of volunteers, those that have the lower incomes.

Tom Temin And then you have also changed the rules in match requirements for the grantees. It looks like.

Atalaya Sergi We changed it for the RSVP program. So the RSVP program had a match requirement that changed each year up until the third year. And the foster grandparent and senior companion programs had a flat 10%. That never changed, no matter how long you had your grant. And so we wanted to bring some consistency across our portfolio. One, we didn’t want to treat the programs differently, so we wanted to bring RSVP down to that 10%. That is also one of the things that was a streamlining of administrative work as well. So a program would know over the course of your grant, your match is always going to be 10%. So that meant that they could plan each year a little bit better in order to raise the funds or raise the match that they needed to contribute to their program. So it did two things, it also it took a little bit of financial stress off of those programs so that they could be sustainable over time and also reduce some of the administrative burden, which then allows our programs to really focus on the recruitment and retention of their volunteers. We lost a lot of volunteers through the pandemic, and our programs are still building up their volunteer basis back to where they were pre-pandemic. And so this is also an opportunity for them to really focus on that work. And RSVP is our largest program of the three as well.

Tom Temin And you have really two ways to look at this. One, there are people in affluent areas who are low income nevertheless, but the organizations that get the grants probably are pretty well equipped financially. And then you have areas that are impoverished, Lehigh Valley in Pennsylvania or Northwest part of Arizona, whatever the case might be, where the grantee organizations may themselves be kind of hard up for funds. And so how do you look at it that way?

Atalaya Sergi So most of our grantees in AmeriCorps seniors tend to be smaller local organizations. We do have some that are funded, supported also by their states and that kind of thing. But they tend to be smaller local organizations. That is kind of the DNA of AmeriCorps seniors. We fund local organizations to recruit older adults that live in those communities to continue to serve those communities. So one of the things that we had noticed, and I think is true of many nonprofits at the time, is that fundraising is a lot harder. And we didn’t want the grantees who were doing wonderful work in the community, engaging volunteers to have to relinquish or give up their grants because of the financial burden. And so this was one of the ways that we could do multiple things at the same time in support of our grantees, bringing some equity across our portfolio, also allowing them to really focus on service to community.

Tom Temin And you mentioned 140,000 individuals participate in around 1,000 grantees. What would you like to see it say in two years from now?

Atalaya Sergi In two years from now, I would hope that we could get maybe back to 200,000 volunteers just in AmeriCorps seniors. Right now, the agency has about 200 to 200,000 volunteers. 140 of those are in AmeriCorps seniors. I would hope that we could get AmeriCorps seniors up to just 200,000 volunteers and increasing our number of grantees to that or having our grantees that we have. You’re bringing in some new grantees, but also having the ones we have grow and serve more of their community and be able to bring in more volunteers.

No doubt you’ve heard. Big price hikes for health insurance for federal employees coming next year. Big ones. Open season coming soon, brings lots of questions. For retirees, a smaller cost of living increase is likely. More on the Federal Drive with Tom Temin from the vice president of the National Active and Retired Federal Employees Association, John Hatton.

Interview transcript:

Tom Temin And let’s talk about those premiums. Now, the hikes are average anywhere, are well known now. Open season about to start another few weeks. What’s your take and what are you telling members?

John Hatton Well, certainly disappointing to see a huge increase in premiums, you know, 13.5% on the enrollee share on the federal side and 11.1% for the postal side. And, you know, we’re expecting a cost of living adjustment coming in around 2.5%. You know, maybe a point percentage, you know, a 10th of a percentage point different than that depending on what the final numbers are. That’s certainly going to be hard to take that premium increase with that cost of living adjustment. So, you know, I think seeing that type of health care inflation go up at rates that’s that’s not represented and other goods and not represented in that COLA is challenging.

Tom Temin And it’s also challenging because, you know, this is generally a better risk pool for the insurers, federal employees.

John Hatton Yeah. So we always you know, OPM always puts out data on what private sector employers or employees are paying for their health insurance. And it’s a little above that where you’re taking into account just active federal employee, just active employee. So private sector employer health insurance, you know, is going up 8 or 9%, you know, based on surveys. A similar system as CalPERS, which covers both retirees and and active employees in California public sector. And that’s going up a similar amount. And so, you know, one of the good parts about the HBP is it’s, you know, you get to choose among different plans. We always tell our members, take a look, you know, this might be a great year to look at a lower price plan because you have those additional choices. And so but really the plans, it’s private insurance that you’re getting a government contribution for. It’s going to reflect the prices that are existing in the private market for health insurance. And so increase utilization, increase prices that are happening. You know, those insurers can help tamp those prices down, but they’re also subject to them as well.

Tom Temin Yeah, utilization is one thing, and we don’t really know what the population of insurers themselves is yet. Some of them might have dropped out and maybe, you know, with fewer there, there’s less competition or simply the ones left in are the ones that are charging what the market has to do in order to maintain the coverage. And those that couldn’t meet that just aren’t there, we don’t know. But these are questions, I think.

John Hatton Yeah. I mean, I think the the insurance plans are yeah, the costs for each plan are based on who is enrolled in them. So if the costs are going up for the enrollees on what you’re paying for health care costs, it’s going to be reflected in them as premiums. You know, one of the reasons the postal side premium increase is less overall, particularly the general insurance closer is because the Postal Service Reform Act is requiring or providing incentives for enrollment in Medicare in the future. A lot of people enroll. So at last look or out 28,000 postal and do it and took advantage of a special fear to take Medicare without a late penalty. That’s help bringing down some of the costs on the postal side of things which is good news for those in that plan. I know there’s a lot of people who need to shift over to this Postal Service health benefits plan 2025. And I know there’s a lot of confusion, a lot of worry, hopefully seeing some of those premiums be a little bit lower of an increasing move. So high increase is reassuring seeing some of the plans that are going to be available where more than 90% of people are going to have basically the same plans available in the postal side as hopefully a bit reassuring. There’s still some details to be finalized by OPM, the Postal Service health benefits, particularly as it relates to drugs. So there’s there’s still a little wait and see on for some of that stuff. And there’s still may be some cases where people are forced to change plans.

Tom Temin Right. We don’t know whether open season will be affected by that pending rule. With respect to, again, the Postal Service having prescription drug coverage. That’s the question.

John Hatton Well, the all postal annuitants will have prescription drug coverage. The question is, are you going to be essentially required to have it via Medicare or can you retain your existing drug coverage? So in 2024, FHB plans started to offer this new Medicare prescription drug plan coverage and as a supplement to their existing drug coverage. But enrollees in FHP have the option to opt out and keep their existing coverage if they would be subject to higher surcharges for having higher incomes. If they wanted to use drug company discounts and get reimbursement for their insurance company. For OPM’s proposed rule, postal insurance wouldn’t have that same option to opt out, so they’d be forced to have the Medicare prescription drug coverage. Now, though, if they want that to be equal or better than the postal Service for drug coverage. But there are at least a couple of reasons people may want to opt out. And the question is, are is that choice going to be available on the postal side or is it not? We commented on that rule, and I’ve been advocating for retaining that choice for post on new dates and we’ll see what the final rule says.

Tom Temin We are speaking with John Hatton, vice president of the National Active and Retired Federal Employees Association. And with respect to the COLA, again, that’s coming out for retirees, I mean, the good thing about a smaller COLA is that in theory it means inflation is less and it’s only supposed to keep you going, but it doesn’t feel like inflation is all that tame yet.

John Hatton Now it still seems it’s there. And I think part of that is that, you know, prices haven’t gone down. Right? There’s a there’s a lot of high inflation. And so if you’re looking back five years ago and while the prices now compare to them are much higher, you know, the change in prices over the last year seem to be moderating. But again, we’re still seeing some of this increased costs and health care. And, you know, we’ve long advocated for taking a look at cost of living adjustments and measuring it based on what what prices seniors are experiencing. And health care is one of those. So in any year where health care inflation is going up a large amount and you’re taking a look at not just the retiree population that has experienced this health care costs, We’re taking a look at the average working population, you know, that of may not reflect those costs. So, you know, sometimes though, you know, in other in recent years where inflation was higher those for for you know working individuals and maybe a little bit lower for retirees. It worked out well. So you got to take the good with the bad sometimes.

Tom Temin And when we last spoke to change topics here, it looked like the bill to repeal the weapon, GPO, the pension offset and so on, the Social Security limitations for certain federal employees. It finally did get the votes necessary or the sign ons necessary in the House to make a vote, and it already had them in the Senate and then they went on recess. So how are you handicapping what could actually happen at this point?

John Hatton We feel pretty confident that we’ll get a vote in the House. The vote in the Senate is not you know, we have the numbers in the Senate. You know, the bill came to the floor. There’s enough people who have signed on support of the bill to vote for it and overcome a filibuster, but it still needs to get floor time. The big news that we had in September was a discharge petition gained 218 signatures. And that’s a different procedure than it’s been used ever in the past on this bill. It’s a not often used procedure. It’s looked at as an affront to leadership in the House. But there’s enough bipartisan support for this bill that it got those signatures. And that really puts the control of whether this comes to the floor in the hands of Garret Graves, the sponsor of this bill are other people who support this bill. Now, leadership may try to, you know, determine the timing of it, Chairman, some of the process around this. So, you know, I don’t want to, you know, all my chickens until they hatch in terms of the vote on the floor. But Majority Leader Scalia said that talked to a paper in Louisiana, said he’s going to bring it to the floor in the fall. And that was after we got those discharge petition signatures. So it’s looking at exactly when exactly how it comes to the floor is still a little bit unclear. It could potentially come to the floor right after the election when they return in November. That’s our hope. But we have to see kind of what happens on the timing.

Tom Temin It’s amazing how many important things they have to do which seem manifestly obvious to people on the outside. But Congress really has an internal rhythm that’s pretty hard to fathom externally.

John Hatton Yeah, and hopefully we’ve gotten kind of interrupted that rhythm with regard to getting a House first vote at least. And I’m very hopeful we get it and passes given the amount of support that we’ve seen for it. And then we’ll have to put the pressure on in the Senate to try to schedule a floor vote. And I think the objection we’re going to face is that there’s not time on that schedule because they have to do the National Defense Authorization Act. They’re going to have to do appropriations bills. And if one person objects to bring it to the floor, then. It’s a really delayed process in the Senate where they often operate under unanimous consent. So that’ll be our challenge. It’s one we’re going to try to tackle and try to put pressure on leadership to bring that to the floor for a vote, given it has 62 co-sponsors, 60, you know, it’s got 61 senators and support one of those co-sponsors. So very much so.

Tom Temin Well, we have a great big cattle prod. We can kind of stick it over there, but then that could get in trouble, I suppose. And then finally, the Office of Personnel Management, which serves at the center of so many of these topics, got a little tap on the shoulder from its inspector general.

John Hatton Yeah. So they came out with their report on top management challenges. And you know, I think one of the things is there are still some challenges with regard to retirement services and customer service, despite the fact that they’re you know, they’ve reduced the backlog in initial retirement plans. So that’s the good news, is there has been some progress. So certainly we want to give credit to the hard work of OPM retirement services on that. But what the IG report still indicated, we’re still seeing from our members that it’s still there’s still other difficulties in customer service. And some of that is just getting somebody on the phone and getting the service you need when you call. And, you know, OPM has a stated goal of 4.2 out of five for customer service and they’re, you know, they’re in the threes and getting worse. So, you know, the IG indicated low staffing levels, you know, that may be a result of funding in our view. You know, you need staffing in the short term, but you also need modernization in the long term in terms of moving away from paper based processes, freeing up resources to better serve retirees who have worked their whole career for the federal government, making sure they get the service they deserve.

Tom Temin So. Well, there’s always artificial intelligence. John Hatton is vice president of the National Active and Retired Federal Employees Association. As always, thanks so much.

John Hatton No problem. Thanks for having me.

Tom Temin And we’ll post this interview at federalnewsnetwork.com/federaldrive. Hear the Federal Drive on demand. Subscribe wherever you get your podcasts.

Copyright © 2024 Federal News Network. All rights reserved. This website is not intended for users located within the European Economic Area.

Copyright © 2024 Federal News Network. All rights reserved. This website is not intended for users located within the European Economic Area.