Online Shopping for Government Contracts? GSA Invites Industry to Comment on Its Upcoming e-Commerce Portals

In an effort to create a new online market for government contracts, the General Services Administration (“GSA”) has invited industry to comment on the development and design of e-commerce portals for commercial procurements.

GSA’s request for comments will be published tomorrow, December 15, 2017.  This comment period provides a valuable opportunity for contractors to advise GSA on what regulations and business practices should apply to e-commerce portals, which will likely serve as a platform for billions of dollars’ worth of government business.

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NIST Releases Updated Draft of Cybersecurity Framework

On December 5, 2017, the National Institute of Standards and Technology (“NIST”) announced the publication of a second draft of a proposed update to the Framework for Improving Critical Infrastructure Cybersecurity (“Cybersecurity Framework”), Version 1.1, Draft 2. NIST has also published an updated draft Roadmap to the Cybersecurity Framework, which “details public and private sector efforts related to and supportive of [the] Framework.”

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California Law Aims to Scrutinize Drug Pricing

Over the last few weeks, much attention has been paid to California’s recently enacted SB 17, legislation that requires pharmaceutical manufacturers to report certain price increases of prescription drugs and, in some cases, provide a justification for such increases. The legislation also requires health insurers and health plans to report additional rate information to state agencies. California’s push to impose disclosure of prescription drug pricing information is part of a growing trend of proposed and enacted legislation across the country purportedly aimed at increased price transparency and control. Continue Reading

NIST Releases New Draft Publication Designed to Assist Contractors In Assessing Compliance with NIST SP 800-171

Ahead of the upcoming December 31, 2017 deadline for federal defense contractors to implement National Institute of Standards and Technology (“NIST”) Special Publication 800-171 (“SP 800-171”), NIST has released a new draft publication designed to assist organizations in assessing compliance under SP 800-171, Draft Special Publication 800-171A, Assessing Security Requirements for Controlled Unclassified Information (“CUI”) (“SP 800-171A”). Continue Reading

DoD Class Deviations Allow for Greater Contracting Flexibility in Times of Crisis

The Department of Defense (“DoD”) has issued two Class Deviations that provide defense agencies with greater flexibility when procuring in times of crisis. These Class Deviations allow for the use of simplified acquisition procedures and excuse certain procurement obligations when DoD is responding to a cyber-attack or providing relief in support of domestic or international disasters.

On November 8, 2017, DoD issued Class Deviation 2018-O0001, which expands the types of procurements treated as commercial item acquisitions and exempts acquisitions in support of cyber-attacks, international disaster assistance, and “emergency or major disaster” relief from requirements to (i) comply with item unique identification, (ii) receive two offers, and (iii) limit the use of time and materials contracts. This Class Deviation also delegates authority for determinations relating to these acquisitions from the Secretary of Defense to the various heads of contracting activities within DoD.

There appears to be a typographical error in the attachment accompanying the November 8, 2017 Class Deviation memorandum. FAR section 12.102 permits agencies to treat acquisitions “used to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack” as an acquisition of commercial items. In the Class Deviation, DoD expands this exception to include defense against cyber-attacks. However, section 212.102 in the attachment leaves off the key phrase “as an acquisition of commercial items.” From context, however, it appears this is what DoD intended.

This Deviation is a follow-up to Class Deviation 2017-O0007, which implements amendments to 41 U.S.C. § 1903 imposed by sections 816 and 1641 of the National Defense Authorization Act (“NDAA”) of 2017. Section 816 increased the micro-purchase threshold (from $5,000 to up to $30,000) and the simplified acquisition threshold (from $150,000 to up to $1.5 million) for acquisitions that “facilitate international disaster assistance or in support of response to an emergency or major disaster.” Section 1641 incorporated cyber-attacks as an additional basis for special emergency procurement authority. These changes also authorize DoD to add cyber-attacks, international disasters, and emergency or major disasters as grounds for procuring up to $13 million in commercial items under simplified acquisition processes pursuant to FAR 13.5.

Together, these changes provide DoD, and it contractors, with greater flexibility to respond to emergencies and times of crisis and subjects contractors to reduced procurement obligations when time is of the essence.

Government Contracts 101 Reminder: Certified Claims Must Include a “Signature”

Earlier this Fall, the Armed Service Board of Contract Appeals dismissed an appeal for lack of jurisdiction because the certified claim lacked a proper signature. Appeal of NileCo General Contracting LLC, ASBCA No. 60912 (Sept. 22, 2017). This simple oversight proved decisive. Although this case does not chart a new course in Contract Disputes Act (CDA) jurisprudence, it serves as a helpful reminder that the Board’s jurisdiction hinges on compliance with basic requirements. Failing to meet any of those requirements could have significant consequences. Continue Reading

Senate Democrats Notch a “Buy American” Victory

As we reported late last month, one-third of the Senate Democratic caucus doubled down on efforts to keep “Buy American” protections intact for certain defense items. Now Senate Democrats are declaring a “Buy American” victory as the FY 2018 NDAA conference report revealed that some of these protections will remain. Continue Reading

GAO’s Annual Report: Protests Are Down, But Their Effectiveness Is Up

On Monday, GAO issued its Bid Protest Annual Report to Congress for Fiscal Year 2017.  Most notably, the effectiveness rate hit 47%.  The effectiveness rate looks at all cases filed, and measures the percentage of cases in which a protester obtains some relief, whether through a sustain by GAO or voluntary corrective action by the agency.

That’s right:  Protesters obtained relief in almost half of all protests last year.  And this year’s 47% effectiveness rate is a new all-time high — continuing a steady upward march over the past several years.  When GAO began measuring the sustain rate in 2001, it was just 33%.  By 2008, it had risen to 42%.  It then held pretty steady through 2012, but has been rising since:

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Left Holding the Bag: Release Provision Precludes Recovery for Costs Incurred Post-Release

Over the last year, we have reported extensively on various government contract decisions regarding contract releases. In Sylvan B. Orr v. Department of Agriculture, CBCA 5299 (Sep. 29, 2017), the Civilian Board of Contract Appeals (“CBCA” or “Board”) published yet another notable opinion on this topic. This decision demonstrates why it is critical to reserve your rights regarding potential claims sparked by conduct that occurs before a release of claims provision is signed—even when the additional costs at issue are not incurred until after the release is executed.

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