Archives: Procurement Policy

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If Shulkin Didn’t Resign, Who Runs the VA Until a New Secretary Is Confirmed? A Vacancies Act Puzzle

Recent news reports have raised a substantial question about who has authority to run the Department of Veterans Affairs (“VA”) in the wake of Dr. David Shulkin’s departure from the agency.  According to the White House, Dr. Shulkin resigned.  Meanwhile, Dr. Shulkin himself has publicly insisted that he did not resign and was instead fired. … Continue Reading

At Long Last – GSA Issues Final Rule on Purchasing “Order-Level Materials” on Schedule Orders

Few issues have bedeviled the GSA Schedules program as much as the provision of incidental supplies and services under Schedule orders.  For years, it has been unclear how such supplies and services are to be purchased and priced, since they are not themselves on Schedule. But now, with GSA’s new Order-Level Materials (“OLM”) rule, GSA … Continue Reading

Third Time Around: Inconsistencies Persist with Final DFARS Commercial Items Rule

On January 31, 2018, the Department of Defense (“DoD” or the “Department”) published a final rule regarding commercial item purchasing requirements.  Among other key amendments, the final rule modifies the Defense Federal Acquisition Regulation Supplement (“DFARS”) by:  (i) formalizing a presumption of commerciality for items that DoD previously treated as commercial; (ii) providing commercial item … Continue Reading

DoD Implements Streamlining Awards for Innovative Technology Projects

On January 9, 2018, Department of Defense (“DoD”) issued Class Deviation 2018-O0009, designed to reduce barriers to entry for innovative entities through streamlining the awards process for research and development contracts. This Class Deviation allows for the use of simplified acquisition procedures and excuses certain procurement obligations when DoD awards contracts and subcontracts valued at … Continue Reading

Changes Coming to the FAR: Government Proposes New Rules on Data Breaches, Cost Evaluation of IDIQ Proposals, and Overseas Small Business Contracting

Federal contractors may be subject to a slate of new regulations in 2018, including rules that increase cyber reporting burdens, expand small business competition, and change the procedures for competitively awarding IDIQ contracts. Among the proposed rules, announced in the Semiannual Regulatory Agenda of the FAR Council and the General Services Administration (“GSA”), are changes … Continue Reading

Senate Democrats Continue Efforts to Strengthen “Buy American” Requirements

Over the last few months, various Senate Democrats have pushed to strengthen “Buy American” requirements applicable to Federal Government procurements. This month is no different. On December 6, 2017, Senator Chris Murphy (D-CT) reintroduced the 21st Century Buy American Act (S.2196), which aims to “strengthen existing Buy American standards to ensure that the U.S. government … 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

Senate Democrats Double Down on “Buy American”

As we reported last month, four Senate Democrats published an article about “strengthen[ing]” the U.S. Government’s “Buy American policies” through certain proposed amendments to the FY 2018 National Defense Authorization Act (“NDAA”). Although most of the proposed “Buy American” amendments were left out of the version of the bill that was sent to conference, 16 Senate Democrats … Continue Reading

Pentagon Reverses Course and Rolls Back The IR&D Technical Interchange Rule

On September 14, 2017, the Department of Defense issued a new class deviation that eliminates the requirement on major contractors to engage with the Government in technical interchange meeting prior to the generation of independent research and development (IR&D) costs.  This class deviation represents a continuing reversal in position for the Pentagon, which had been … Continue Reading

Senate Democrats Look to Strengthen “Buy American” Policies and Requirements

Last week a group of four Senate Democrats – led by Minority Leader Chuck Schumer (D-NY) – jointly published an article about “strengthen[ing]” the U.S. Government’s “Buy American policies.” While the senators acknowledged President Trump’s recent efforts to “re-examine the use of . . . Buy American waivers” (see our blog post regarding the “Buy … Continue Reading

A Summary of the Recently Introduced “Internet of Things (IoT) Cybersecurity Improvement Act of 2017”

On August 1, 2017, a bipartisan group of Senators introduced legislation (fact sheet) that would establish minimum cybersecurity standards for Internet of Things (“IoT”) devices sold to the U.S. Government. As Internet-connected devices become increasingly ubiquitous and susceptible to evolving and complex cyber threats, the proposed bill attempts to safeguard the security of executive agencies’ … Continue Reading

Six Takeaways from President Trump’s Executive Order on Assessing Manufacturing and the Defense Industrial Base

[This article was originally published in Law360.] On July 21, 2017 – and during “Made in America Week” – President Trump issued Executive Order 13806 on “Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States” (the “Manufacturing EO”).  The Manufacturing EO sets forth a policy stressing the … Continue Reading

Senate Committee Directs DoD to Reduce Drug Prices

In its Report on the National Defense Authorization Act for Fiscal Year 2018, the Senate Armed Services Committee (the “Committee”) included an “Item of Special Interest” directing the DoD to exercise its rights under the Bayh-Dole Act “to authorize third parties to use inventions that benefited from DOD funding whenever the price of a drug, … Continue Reading

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

[This article also was published in Law360.] 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 … 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
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