Georgia Tech Procurement Assistance Center

GAO continues to expand the scope of ‘prototypes’ that DoD may buy through OTs

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The most common question heard about the recent boom in the Department of Defense’s spending on other transactions, or OTs, is a simple one:  How can I get in on the action? 

Understandably, OTs – essentially contracts not subject to procurement laws or regulations like the Federal Acquisition Regulation (FAR) – are very enticing to traditional and nontraditional contractors alike.  And opportunities for OTs abound, particularly since Congress, in 2015, codified the DoD’s authority to award OTs for “prototype projects” (previously just a pilot program) and expanded that authority to include OTs for follow-on production efforts.  But there are limits to DoD’s authority, foremost being that, in general, DoD may acquire only “prototypes” through OTs, and must buy all other goods and services through traditional, FAR-based procurement contracts.

So the question of how to access DoD’s surge in OT funding hinges, among other things, on more specific questions:  What exactly is a “prototype”?   And do my offerings fit the bill?

The answers, it seems, are quite a lot and probably yes.  Congress provided very little legislative direction, instead leaving to DoD the decision over just how broad its authority might reach.  Unsurprisingly, it took a broadminded approach to the term “prototype,” and so far the Government Accountability Office (GAO), as legislative oversight, has upheld the DoD’s expanding interpretation.  This continued in ACI Technologies, Inc., B-417011, Jan. 17, 2019, 2019 CPD ¶ 24, where the GAO found the DoD properly awarded a prototype OT for, among other things, training programs, skills development outreach, and the drafting of best practices for fostering commercial development of secure electronic parts.

Specifically at issue in ACI Technologies was a solicitation by the Naval Surface Warfare Center seeking a firm to manage a consortium of contractors in support of the agency’s Strategic & Spectrum Missions Advanced Resilient Trusted Systems (S2MARTS) initiative.  This initiative’s stated goal is to obtain “innovative technological solutions to address current and future security threats in the electromagnetic spectrum (EMS), trusted microelectronics, and strategic missions hardware environments,” which includes “developing a relationship with industry and academia to establish streamlined processes for obtaining innovative, State-of-the-Art (SOTA) technologies” and “establishing an agile and collaborative working relationship amongst the Government and academia/industry.”

Keep reading this article at: https://www.jdsupra.com/legalnews/gao-continues-to-expand-the-scope-of-91815/

For more information about OTs, see the Defense Acquisition University’s OT Guide at: https://aaf.dau.mil/ot-guide/

‘Eliminate most DoD small business set-asides,’ says Section 809 Panel

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The Section 809 Panel has recommended that Congress eliminate most small business set-asides for DoD acquisitions.

The Panel would replace the longstanding set-aside system with a meager five percent small business price preference.

For small government contractors, this recommendation is the policy equivalent of a five-alarm fire. Small contractors may need to fight hard to save the set-aside system.

Get ready for a battle.

Keep reading this article at: http://smallgovcon.com/statutes-and-regulations/eliminate-most-dod-small-business-set-asides-says-section-809-panel/

Find all of the Section 809 Panel’s reports here: https://section809panel.org/media/updates/

5 ‘bold’ recommendations to improve DoD acquisition

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Congress and the Defense Department are paying close attention to recommendations coming from the Section 809 panel to change the military’s acquisition process.

The House and Senate Armed Service committees added every idea from the group’s May 2017 interim report as well as many of the recommendations from the panel’s January 2018 volume one report to recent Defense authorization bills, said David Drabkin, the panel’s chairman.

“During this process, we have met frequently with both the House Armed Services Committee, the Senate Armed Services Committee, and on occasion we have met with the House Appropriations Defense subcommittee and Senate Appropriations subcommittee on Defense, and have worked closely with the department as you can see on the panel, three of the department’s acquisition executives have been a part of the panel itself,” Drabkin said Tuesday during the roll out of the volume 3 recommendations in Washington, D.C. “We can’t assure Congress will accept our work, but we have an indication that they are very interested. As you look around the room, you can see members from the staff of the HASC and SASC sitting in the meeting today.”

So with the congressionally-mandated group of public-private sector experts issuing their third and final set of recommendations on Jan. 15th detailing 58 new ones across 13 sections, the likelihood of many of these proposals advancing is good. In all, the panel made 93 recommendations, provide implementation plans and legislative language across more than 1,000 pages and three volumes of work since 2016.

Keep reading this article at: https://federalnewsnetwork.com/acquisition/2019/01/5-bold-recommendations-to-improve-dod-acquisition/

See the 809 Panel’s final report here: 

See the 809 Panel’s earlier reports here: https://section809panel.org/media/updates/ 

Here’s how technology vendors can navigate the legislative branch

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Congress can be a difficult place for technology vendors to do business.

The legislative branch’s “unique, fragmented and opaque rules” set a barrier to entry that can keep even vendors with experience in other areas of government out of the loop. But a new white paper from Future Congress aims to lay out the rules of the road for vendors and civic hackers who’d like to help Congress function better.

The paper gives a little information on everything from the governance structure of IT in the House and Senate to the acquisition rules and practices that govern the $288 million in IT spending Congress does each year.

Keep reading this article at: https://www.fedscoop.com/future-congress-tech-vendor-white-paper/

Lawmakers announce deal to avoid government shutdown

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Lawmakers announced last Thursday that they have reached an agreement that would avoid a government shutdown at the end of the month.

At a conference committee meeting on Thursday, Rep. Rodney Frelinghuysen, R-N.J., chairman of the House Appropriations Committee, said lawmakers would push that timeframe back until at least Dec. 7 with a continuing resolution.

That measure would only put some agencies on autopilot, as lawmakers are poised to pass full-year, line-by-line appropriations for most of the government in the coming weeks. Congress was expected on Thursday to send President Trump the first package of spending bills, a “minibus” that funds the departments of Veterans Affairs, Energy and related agencies, as well as the legislative branch. The White House indicated this week that President Trump would sign the measure into law.

Keep reading this article at: https://www.govexec.com/management/2018/09/lawmakers-announce-deal-avoid-shutdown/151246/

Shutdown advice for contractors: If a stop-work order comes, stop work

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Congress’s progress on its 12 annual spending bills for fiscal 2019 means “we’re in pretty good shape ” for funding federal agencies, David Berteau, president and CEO of the 400-member Professional Services Council, told his contractor members in a webinar last Wednesday.

Congressional appropriators have reported all spending bills from committee, with a half-dozen approved by full chambers, Berteau noted, lawmakers’ most productive pace in 12 or 13 years. But with only 11 legislative days left before the fiscal year ends Sept. 30, there is a “slim chance” of all 12 getting through conference or a major negotiated omnibus deal, which is why it is “prudent” for agencies and contractors to prepare for the possibility of a lapse in appropriations. Getting all the bills signed by Oct. 1 “is subject to a lot of decisions affected by both votes and politics,” Berteau said.

“The reason we [present preparation guidance for our members] is not to predict a [shutdown]–we hope there is no government shutdown,” added Alan Chvotkin, PSC’s executive vice president and counsel, but because reacting to agency closures “is an arcane area.”

Keep reading this article at: https://www.govexec.com/contracting/2018/08/shutdown-advice-contractors-if-stop-work-order-comes-stop-work/150578/

Congress aims to redefine ‘subcontract’

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If an agreement qualifies as a “subcontract” under a government contract, then it may be subject to certain flow-down, compliance, and reporting requirements.  These requirements are intended to protect the government’s interests, and have significant ramifications for contractors, e.g., increasing transaction costs, expanding potential areas of exposure.

These compliance obligations and risks can even deter some companies from performing under government contracts, especially those companies offering commercial items.

Currently, there is no uniform definition of “subcontract” in the applicable procurement regulations or in the procurement chapters under Titles 10 and 41 of the U.S. Code.  Indeed, there are more than twenty varying definitions of “subcontract” in the FAR and DFARS, with many clauses failing to specify which definition applies.  Now Congress is looking to address this lack of uniformity through the FY 2019 National Defense Authorization Act (NDAA).

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/06/congress-aims-to-redefine-the-subcontract/

An infrastructure deal should be easy, but isn’t

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The stars should be aligned for a big infrastructure deal.

The lingering devastation from the hurricanes that crippled Houston and Florida underscored the national problems of crumbling roads and bridges, inadequate transportation systems and aging electrical grids. President Donald Trump and congressional Democrats both want Washington to spend billions on repairs and construction.

The need is critical. The American Society of Civil Engineers recently gave the country’s infrastructure a D-plus grade and estimated that its deficiencies will cost the economy $4 trillion over the next decade. As Floridians go days, stretching into weeks, without power, and with old people dying in nursing homes, the urgency is clear.

Keep reading this article at: https://www.bloomberg.com/view/articles/2017-09-17/an-infrastructure-deal-should-be-easy-but-isn-t

Cyber executive order could signal windfall for contractors

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This week, the House passed a major bill that would create working capital funds agencies to modernize their internal technology. Last week, President Donald Trump signed an executive order directing agencies to update their cybersecurity practices and to hold agency heads, not chief information officers, accountable for incidents.

What do these moves mean for technology contractors? They could signal continued or greater upcoming investments in private-sector cyber services, Candace Worley, McAfee’s chief technical strategist, told Nextgov.

Keep reading this article at: http://www.nextgov.com/cybersecurity/2017/05/mcafee-vp-cyber-executive-order-could-signal-windfall-contractors/137979

Frequently-cited statistic about danger small businesses face from cyberattacks has no basis in fact

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It’s the kind of figure that can make your jaw drop, the kind that forces lawmakers and public officials to get off their duffs and do something, that drives home the way cyber insecurity is ravaging small businesspeople across the nation.

House and Senate lawmakers have cited it in bills that would redirect federal resources and are awaiting action on their chambers’ floors. Top executive branch officials have cited it in official testimony to Congress.

But it’s completely erroneous, not based on any existing study, according to an exhaustive Nextgov search.

The statistic, typically attributed to the National Cyber Security Alliance, is that 60 percent of small businesses that suffer a cyberattack will go out of business within six months.

Keep reading this article at: http://www.nextgov.com/cybersecurity/2017/05/how-fake-cyber-statistic-raced-through-washington/137542

See related article, “House Panel Passes Bill Requiring Federal Cyber Guidance for Small Businesses,” at: http://www.nextgov.com/cybersecurity/2017/05/house-panel-passes-bill-requiring-federal-cyber-guidance-small-businesses/137499 

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