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.

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Photo of Susan B. Cassidy Susan B. Cassidy

Susan Cassidy co-chairs Covington’s Aerospace and Defense Industry Group, and has been advising government contractors for more than 35 years on the requirements imposed on companies contracting with the U.S. Government.

Susan’s practice focuses on the intersection of cybersecurity, national security, and supply…

Susan Cassidy co-chairs Covington’s Aerospace and Defense Industry Group, and has been advising government contractors for more than 35 years on the requirements imposed on companies contracting with the U.S. Government.

Susan’s practice focuses on the intersection of cybersecurity, national security, and supply chain risk management for companies that sell products and services to the U.S. Government. Susan advises contractors at all phases of the procurement cycle, and regularly:

advises clients on compliance obligations imposed by the FAR, DFARS, and other agency regulatory requirements;
leads internal and government False Claims Act (FCA) investigations addressing allegations of violations of government cybersecurity, national security, supply chain, quality, and MIL-SPEC requirements; and
advises clients who have suffered a cyber breach where U.S. government information may have been impacted.

In her work with global, national, and start-up contractors, Susan advises companies on all aspects of government supply chain issues including:

Government cybersecurity requirements, including the Cybersecurity Maturity Model Certification (CMMC), DFARS 252.204-7012, FedRAMP, controlled unclassified information (CUI), and NIST SP 800-171 requirements;
Evolving sourcing issues such as Section 889, counterfeit part requirements, Section 5949 semiconductor product and service restrictions, and limitations on sourcing a variety of products from China; and
Federal Acquisition Security Council (FASC) regulations and product exclusions.

 

Susan previously served as senior in-house counsel for two major defense contractors (Northrop Grumman Corporation and Motorola Incorporated) and is Chambers rated in both Government Contracts and Government Contracts Cybersecurity. Chambers USA has quoted sources stating that “Susan’s in-house experience coupled with her deep understanding of the regulatory requirements is the perfect balance to navigate legal and commercial matters.”

Susan is a former Public Contract Law Procurement Division Co-Chair, former Co-Chair and current Vice-Chair of the ABA PCL Cybersecurity, Privacy and Emerging Technology Committee.

Susan’s pro-bono work extends to assisting veterans in a variety of matters, as well as providing advice to elderly clients on their wills and other end-of-life planning documents.

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