Archives: Procurement Policy

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Department of State Releases 2017 TIP Report

The Department of State has released its 2017 Trafficking in Persons (“TIP”) Report.  As with prior versions of the annual report, the State Department reviewed efforts made by more than 180 countries to address the minimum Prosecutorial, Protective, and Preventative standards necessary for effective anti-trafficking measures, as these standards are outlined in the United States’ … Continue Reading

Key Takeaways from Trump Administration Memo on Buy American Laws

On June 30, 2017, Commerce Secretary Ross and OMB Director Mulvaney issued a Memorandum to Federal agencies regarding the “assessment and enforcement of domestic preferences in accordance with Buy American Laws,” which includes the Buy American Act (“BAA”). Although the Memorandum purports to provide guidance to help agencies implement the vision expressed in President Trump’s … Continue Reading

Highlights from DoD Industry Day on DFARS Cyber Rule

The Department of Defense (“DoD”) held an “Industry Information Day” on June 23, 2017 to address questions regarding DFARS Case 2013-D018 “Network Penetration and Reporting for Cloud Services,” including DFARS clauses 252.204-7012 “Safeguarding Covered Defense Information and Cyber Incident Reporting” and 252.239-7010 “Cloud Computing Services.”   DoD’s presentation lasted approximately four hours and covered a wide range of … Continue Reading

Section 809 Panel Urges Congress to Bring DoD Spending into the 21st Century

The Section 809 Panel recently released an interim report and supplement (the “Interim Report”) advocating in broad strokes for a host of improvements to the Department of Defense’s (“DoD”) acquisition system to better streamline the process and increase industry offerings to the government.  The NDAA for FY 2016 established the Section 809 Panel to address … Continue Reading

GAO Recommends Improvements to DOE’s Fraud Controls; DOE Fires Back

Earlier this month the U.S. Government Accountability Office (“GAO”) released a report titled “Department of Energy: Use of Leading Practices Could Help Manage the Risk of Fraud and Other Improper Payments” (GAO-17-235) (the “Report”).  As the title suggests, GAO assessed the Department of Energy’s (“DOE”) internal controls to manage “the risk of fraud and improper … Continue Reading

Key Takeaways From President Trump’s “Buy American” Executive Order

[This article was originally published in Law360.] President Trump took a significant step this week towards implementing his often touted objective of protecting U.S. manufacturers and workers by signing the “Presidential Executive Order on Buy American and Hire American” (the “EO”) on April 18, 2017.  In addition to addressing reforms to the H1-B visa program … Continue Reading

GAO Report Identifies Government-wide Contracting Trends In Stark Contrast To Proposed Presidential Budget

On March 9, 2017, the U.S. Government Accountability Office (“GAO”) issued a Report entitled “Contracting Data Analysis — Assessment of Government-wide Trends” (the “Report”), detailing Government-wide trends in federal contracting for goods and services during the five-year period from 2011 through 2015.  The report highlights trends in spending, competition, contract types, and contract recipients, and … Continue Reading

2017 NDAA’s Impact on Audits and Cost Accounting Standards

Section 820 of the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-238, 130 Stat. 2000 (NDAA), makes three significant changes to the federal government’s future method of conducting audits and implementation of Cost Accounting Standards (CAS).  First, it empowers contractors to avoid Defense Contract Audit Agency (DCAA) audits by employing private … Continue Reading

President Trump’s First Address to Congress Foreshadows Increased Buy American Act Enforcement

On February 28, 2017, President Donald J. Trump addressed a joint session of Congress for the first time and outlined his plan for a “new chapter of American Greatness.”  That plan included continued emphasis on protecting United States labor and manufacturing, and can be summarized in a few words often repeated by President Trump: “Buy … Continue Reading

Trump’s Commitment Against Human Trafficking Brings Greater Uncertainty for Contractors

Last Thursday, President Trump and his senior advisors met with representatives of organizations committed to fighting human trafficking. As reported by several news outlets (e.g., AP, NYT, and Reuters), the President stated during the meeting that he would commit the “full force and weight” of the U.S. government against what he views as an “epidemic” of … Continue Reading

DoD Further Clarifies Its DFARS Cybersecurity Requirements

On January 27, 2017, the Department of Defense (DoD) issued an updated Frequently Asked Questions (FAQ) regarding the application and requirements of DFARS 252.204.7012 Safeguarding Covered Defense Information and Cyber Incident Reporting. Though questions remain regarding various nuances of the rule, the FAQ is a helpful document for those contractors still working on implementation of … Continue Reading

New Policies on Sustainable Acquisition: Among the Last Proposed FAR Rules of the Obama Administration

Just two days before Donald Trump’s Inauguration, the Federal Acquisition Regulatory Council published a proposed rule to implement Executive Order 13693, Planning for Federal Sustainability in the Next Decade, and certain biobased acquisition provisions of the Agricultural Act of 2014.  The Council characterized the rule as advancing policies put into effect by an interim rule … Continue Reading

Endgame for the Blacklisting Order

Congress recently began the process to legislatively overturn the regulations implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order.  Under the Congressional Review Act, Congress can dismantle regulations that were finalized in the waning days of a presidential administration.  Our colleagues in the Public Policy & Government Affairs practice provide some details of the … Continue Reading

The More You Know: Agencies Advised to Increase Use of Post-Award Debriefings

On January 5, 2017, as part of its “myth-busting” series, the Office of Federal Procurement Policy (“OFPP”) issued a memorandum encouraging federal agencies to improve their post-award debriefings to increase their “productive interactions with . . . industry partners.” Based on feedback from industry and federal agencies, the OFPP described the numerous benefits of effective … Continue Reading

Contracting by Tweet: What Impact Can the New Administration Have on Existing Contracts and Future Awards?

Among the many subjects to receive President-elect Trump’s attention in advance of his swearing in on January 20 are venerable defense contractors and their performance of major systems contracts.  The Boeing Company (Boeing) and Lockheed Martin (Lockheed) have both felt the “heat of the tweet” – Boeing for the projected cost of the next generation … Continue Reading

New Guidance on Contractor Risk Management Under the Human Trafficking Rule Released

On December 7, the Office of Management and Budget, the Department of Labor, and the Office to Monitor and Combat Trafficking in Persons in the Department of State, issued a proposed memorandum titled “Anti-Trafficking Risk Management Best Practices & Mitigation Considerations.”  The document is intended, at least in part, to “promote clarity and consistency in … Continue Reading

New FAR Rule Encourages “Constructive Exchanges” between Federal Agencies and Contractors

On November 29, 2016, the Department of Defense, General Services Administration, and the National Aeronautics and Space Administration proposed an amendment to the Federal Acquisition Regulation (“FAR”) aiming to encourage pre-acquisition communications between industry professionals and federal agencies.  This amendment is part of a five-year long effort by the Obama Administration to clarify that communications … Continue Reading

FAR Council Clarifies 8(a) Sole Source Justification Requirements for High Value Contracts

On October 15, the Federal Acquisition Regulatory Council (FAR Council), issued a proposed rule to clarify contracting officer and agency responsibilities when justifying sole source awards exceeding $22 million dollars made through the Small Business Administration’s 8(a) program.  The revisions directly address recommendations from a December 2012 Government Accountability Office (GAO) report titled, “Slow Start … Continue Reading

Private-Sector Opportunities – and Challenges – in the New $38.8B U.S.-Israel Military Assistance Package

U.S. and Israeli defense industries are anxious for details of a ten-year, $38.8 billion military assistance package that was signed in Washington this past September. Whether the terms of the aid package are upended entirely or left mostly unchanged by the current incoming administration will have far reaching consequences on future U.S. and Israeli government … Continue Reading

Confidentiality Agreements Continue To Pose Potential Compliance Trap for Contractors

Federal contractors who require employees to sign confidentiality agreements—including those selling only commercial products or in small quantities—need to examine their agreements closely. For the last two years, the government has sought to prohibit confidentiality agreements that restrict employees’ ability to report fraud, waste, or abuse to “designated investigative or law enforcement representative[s]” for federal … Continue Reading

What Goes Around Comes Around: OFPP Makes Efforts to Institutionalize Category Management

Earlier this month, the Office of Federal Procurement Policy (OFPP) released a proposed Office of Management and Budget (OMB) Circular, Implementing Category Management for Common Goods and Services, which “institutionalizes” category management as the government-wide model for the acquisition of common goods and services.  Contractors should be aware of this trend, as it could impact … Continue Reading

GSA Leaves Many Questions Unanswered, As Industry Assesses The New Transactional Data Reporting Rule

We recently wrote about GSA’s new Transactional Data Reporting (“TDR”) pilot program, which requires participating Federal Supply Schedule (“FSS”) contractors to report 11 items of transactional data to GSA each month. The TDR rule also eliminates the requirement to provide a Commercial Sales Practices (“CSP”) format as well as the Price Reductions Clause.  As we … Continue Reading

DoD Finalizes Rule Expanding Contractor Rights in Technical Data

DoD has issued a Final Rule that gives added protections to the technical data of privately developed commercial items incorporated into major systems, including major weapon systems.  This rule implements Section 813(a) of the National Defense Authorization Act (NDAA) for Fiscal Year 2016 and modifies 10 U.S.C.§ 2321(f).… Continue Reading
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