The Department of Defense is seeking early input on implementation of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (the “FY2023 NDAA”) in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation. Although this early engagement process will not replace the formal rulemaking process, it presents a significant opportunity for government contractors, technology providers, industry associations, and other interested parties to provide their perspectives on acquisition-related provisions of this year’s NDAA. Providing early input can ensure that industry’s perspective is heard. Indeed, providing input at this stage may impact the future rulemaking process by guiding areas of focus and influencing ways the rule makers ask for input during the rulemaking process.
As noted in our prior alert, the FY2023 NDAA authorizes $857.9 billion in fiscal year 2023 funding and provides authorities for critical defense priorities. Although most of the provisions directly related to acquisition policy and management are set forth in Title VIII of the law, this early engagement opportunity is not limited to that part of the NDAA. Rather, DoD is inviting input on any provision of this sweeping legislation that may implicate acquisition policy. The new law touches on supply chain integrity, domestic preference requirements, and semiconductor prohibitions, as well as on intellectual property transactions, cybersecurity, small business programs, and inflation and extraordinary contractual relief. It also authorizes a number of pilot programs: to accelerate contract and pricing processes; bridge the security clearance gap for innovative technology companies; open the door to use of other transaction authority for installation or facility prototyping; and to accelerate the development of new battery technologies, to name but a few.
Interested parties can provide input directly via the Defense Acquisition Regulation System (“DARS”) website. Other than the requirement that the input be in writing, there are no format constraints or page limits and, at present, there is no cutoff date for the submission of input. DoD will make another public announcement when early input will no longer be accepted. Although DARS is responsible for developing and maintaining acquisition rules and guidance for the DoD, it also supports the Federal Acquisition Regulation Council, so this opportunity should be of interest to even those government contractors whose work for DoD is limited. This is important given that the NDAA incorporates authorizations for the intelligence community, the State Department, and the Coast Guard.
A word of caution: all early input will be publicly released in its entirety. Accordingly, submissions to DARS should not include any confidential, proprietary, or otherwise sensitive information.
The FY2023 NDAA contains a host of opportunities for government contractors across a spectrum of industries, but it also contains many provisions that if not implemented properly, could negatively impact contractors. As a result, industry participation in this implementation effort will be crucial to ensuring that these provisions are implemented in a manner that does not unduly burden contractors or interfere with their ability to provide the Government the products and services on which the Government relies. This early engagement process presents an opportunity to begin this dialog to ensure rule makers are tracking on important issues while implementing this legislation’s provisions.
As DoD and other agencies are charged with implementing the FY2023 NDAA’s provisions, contractors and the Government’s efforts to implement them can position contractors to help ensure the impact of Congress efforts do not present obstacles, while capitalizing on new opportunities that may be presented in the legislation.