Georgia Tech Procurement Assistance Center

Latest effort to reform DoD acquisition borrows heavily from expert panel’s recommendations

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For the fourth year in a row, the chairman of the House Armed Services Committee is pushing a package of legislation that he says will modernize and accelerate the Defense acquisition system.

This year’s version includes at least a couple of key differences though. For one, it attempts to prod the Defense Department to implement the changes Congress has already passed as part of prior-year reform bills.

For another, most of the changes Rep. Mac Thornberry (R-Texas) is proposing were first recommended by the Section 809 Panel, an 18-member team of acquisition experts Congress commissioned in 2017 to provide advice on how to streamline the system.

Among the traits shared by the Thornberry bill and the recommendations the 809 panel has already delivered is an emphasis on scraping years of detritus from the federal statutes that govern the acquisition system.

Keep reading this article at: https://federalnewsradio.com/defense-main/2018/04/house-chairmans-latest-effort-to-reform-dod-acquisition-borrows-heavily-from-expert-panels-recommendations/ 

What should contractors know about GSA’s new e-commerce portal implementation plan?

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One of the most closely monitored provisions of the 2018 National Defense Authorization Act (NDAA), Section 846, directed the General Services Administration (GSA) to create a new e-commerce portal for the sale of commercial goods.  Section 846 established delayed implementation of the new e-commerce portal, which is set to occur in phases that each require distinct action items and submissions.

  • Phase 1 requires the Office of Management and Budget (OMB), in consultation with the GSA, to create an implementation plan and schedule for carrying out the e-commerce portal program.
  • Phase 2 requires OMB and GSA to prepare recommendations for any changes to – or exemptions from – laws necessary for effective implementation of the program within one year of submitting the implementation plan and schedule contemplated under Phase 1.
  • Phase 3 requires OMB and GSA to create guidance for the e-commerce portal program within two years of submitting the implementation plan and schedule contemplated under Phase 1.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=687578

Holland & Knight’s analysis of Section 846 is available here, and the original Thornberry acquisition reform bill that started this is available here.

3rd time around: Inconsistencies persist with final DFARS commercial items rule

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On January 31, 2018, the Department of Defense (DoD) published a final rule regarding commercial item purchasing requirements.  Among other key amendments, the final rule modifies the Defense Federal Acquisition Regulation Supplement (DFARS) by:  (i) formalizing a presumption of commerciality for items that DoD previously treated as commercial; (ii) providing commercial item treatment to goods and services offered by nontraditional defense contractors; and (iii) prioritizing the types of information that the contracting officer (CO) can consider when determining price reasonableness in the absence of adequate competition.

The final rule adopts much of DoD’s August 2016 proposed rule, which itself was a revised version of a retracted August 2015 proposed version.  (This was discussed the August 2016 proposed rule on this subject(and linked to an article regarding the August 2015 version in a prior post.)  Despite receiving repeated input from industry and Congress, DoD’s final rule still provides little concrete guidance, and although these changes were made with the stated purpose of promoting consistency across purchasing components, it appears likely that inconsistencies will persist.

In particular, the final rule continues to leave the door open for individualCOs to make potentially burdensome requests for information to support the proposed pricing of commercial items.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/02/third-time-around-inconsistencies-persist-final-dfars-commercial-items-rule/

DoD checks the box for Congress but still unnecessarily burdens commercial contractors

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The Department of Defense (DoD) has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) and implementing sections of the National Defense Authorization Acts (NDAAs) for Fiscal Years 2013, 2016 and 2018. This final rule results from Congressional pressure to reduce barriers to entry for commercial contractors and streamline commercial item procurement procedures. But, while making specific changes required in the NDAAs intended to foster the DoD’s ability to purchase commercial items and services, the final rule retains unnecessary burdens that may continue to discourage commercial contractors from entering into the federal marketplace.

At the same time, DoD has issued a new “Guidebook for Acquiring Commercial Items” available here, replacing a draft version issued in February 2017. This Guidebook addresses both commercial item determinations (Part A) and pricing (Part B). This guidance will merit close scrutiny from contractors supplying commercial goods and services to DoD.

Notably, the final rule does not address changes required by the FY 2017 NDAA which, for example, required special treatment for nontraditional defense contractors supplying services, established commerciality for certain commingled items, and added preferences for commercial specifications. DoD has opened a separate DFARS case (No. 2018-D016) to address the reforms mandated by the FY 2017 NDAA, but no proposed rule has yet been issued.

Keep reading this article at: https://www.lexology.com/library/detail.aspx?g=70c7f255-f5f2-4ad4-9d63-8d60d09fcf38

For commercial item contractors, some improvements in DoD’s final rule and guidebook

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At long last, the Department of Defense (DoD) on January 31, 2018, issued its final rule regarding the procurement of commercial items. On the same day, the DoD also published an updated two-part “Commercial Item Acquisition Guidebook,” a draft of which the DoD circulated last year.

Dentons has been tracking both, including an analysis regarding the proposed rule and an earlier DFARS case that contributed to it. Although the final rule contains some beneficial elements for commercial item contractors and nontraditional defense contractors, it fails to overcome several of the barriers that deter such contractors from selling to DoD and sets the stage for possible problems down the road.

Starting with some potentially good news, it is helpful that the discussion and analysis in the final rule expressly acknowledges that the DoD considers the commercial item determination to be separate from the price reasonableness determination. This was an issue that was of particular concern in industry comments submitted in response to the DoD’s proposed rules. Moreover, the DoD’s acknowledgement of these separate inquiries is important because it also emphasizes and reinforces the avenue by which items that have not previously been sold may nonetheless qualify as commercial items if they are “of a type.” It was not long ago that the DoD was actively engaged in an effort to revise the statutory commercial item definition to remove this very concept.

Another bit of good news in the final rule relates to nontraditional defense contractors. The final rule defines a nontraditional defense contractor as an entity “that is not currently performing and has not performed any contract or subcontract for DoD that is subject to full coverage under [CAS] . . . for at least the 1-year period preceding the solicitation . . . .”  The language at DFARS 212.102 states that contracting officers may treat supplies and services provided by nontraditional defense contractors as commercial items.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=670448

GSA hears comments from industry about e-commerce portals

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As part of ongoing efforts to create an online marketplace for government purchasers, GSA officials held a public meeting January 9th to discuss potential market structures and legal requirements.

A wide range of stakeholders attended the hearing, responding to questions from GSA on issues such as how many online portals should be implemented, who should have privity of contract with the government, and whether certain federal procurement requirements should be waived for program participants.  GSA had previously published its discussion topics in a Federal Register notice on December 15, 2017.

GSA’s town hall took place as part of the implementation of Section 846 of the National Defense Authorization Act for FY 2018.  As discussed in a previous blog post, the 2018 NDAA requires GSA and OMB to develop and implement e-commerce portals for commercially available off-the-shelf (COTS) item procurements, rolling out the program under a three-phase plan.  [2018 NDAA § 846(c)(1)]  Phase I requires the development of a plan for implementing the commercial e-commerce portals program, including recommendations regarding “changes to, or exemptions from, [existing procurement] laws.”  Id.  That Phase I plan is due to Congress on March 12, 2018. Id.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/01/gsa-hears-comments-industry-e-commerce-portals/#more-7422 

New NDAA purchasing rules should benefit government shoppers, small business

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The 2018 National Defense Authorization Act (NDAA) rules governing the acquisition of commercial items should give those making relatively small purchases more choices, and small businesses more hope for getting a piece of the federal spending pie.

Since President Donald Trump signed the 2018 NDAA into law on Dec. 12, the focus has been on rules providing a three-fold increase in the micro-purchase threshold for civilian agencies from $3,000 to $10,000.

A micro-purchase, because of its relatively low value, doesn’t require competition. With few limitations, it allows contracting officers to  buy any product from any company, so long as it doesn’t exceed the $10,000 threshold.

Keep reading this article at: https://federalnewsradio.com/acquisition-policy/2018/01/new-ndaa-purchasing-rules-should-benefit-government-shoppers-small-business/

Update on government contracts ramifications of the Trump administration

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In December 2016, Jones Day issued “ Government Contracts Ramifications of the Trump Election,” a Commentary in which we discussed several likely impacts of the Trump Administration in the government contracts arena. Specifically, we discussed that the new Administration would:

  • Seek repeal of numerous Executive Orders affecting government contractors.
  • Reject some Obama Administration procurement policies, such as: the preference for fixed-price type contracts; the preference for lowest-price technically acceptable (“LPTA”) evaluation schemes; and the preference against outsourcing government jobs to private companies.
  • Embrace Commercial Item contracting.
  • Increase government spending for defense, cybersecurity, infrastructure, and immigration-related activities.
  • Decrease spending by many agencies, including the Department of Education, Environmental Protection Agency, and Internal Revenue Service.
  • Focus on compliance issues such as rooting out fraud, waste, and abuse, and ensuring compliance with the Buy American Act and Trade Agreements Act.
  • Withdraw from, or renegotiate America’s participation in, certain trade relationships, which could affect companies’ supply chains.
  • Decrease the federal workforce, which could result in understaffing and undertraining within the acquisition workforce.
  • Appoint the members of the FAR Council, including the Office of Federal Procurement Policy (“OFPP”) Administrator, Secretary of Defense, Administrator of National Aeronautics and Space Administration, and the Administrator of General Services Administration.

Since the issuance of our earlier Commentary, President Trump has taken several actions that provide additional insight into the impact his Administration will have on government contractors.

Keep reading this article at: http://www.mondaq.com/unitedstates/x/564798/Government+Contracts+Procurement+PPP/Update+On+Government+Contracts+Ramifications+Of+The+Trump+Administration

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