Archives: Procurement Reform

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Takeaways From DoD’s Proposed Changes to Commercial Item Contracting

[This article was originally published in Law360 and has been modified for the blog.] Over the summer, pursuant to Section 874 of the FY 2017 National Defense Authorization Act (“NDAA”)[1], the Department of Defense (“DoD”) issued a proposed rule[2] to exclude the application of certain laws and regulations to the acquisition of commercial items, including … Continue Reading

OIG Report Criticizes GSA’s TDR Pilot Program

On July 25, the GSA’s Office of Inspector General (“OIG”) published a report summarizing its audit of the GSA Transactional Data Reporting (“TDR”) pilot program.  That ongoing pilot program, which we have covered previously and have been tracking since the beginning, allows participating Federal Supply Schedule (“FSS”) contract-holders to report government-sales data each month, in … Continue Reading

Senate Largely Leaves Bid Protests Alone in Passed Version of FY 2019 NDAA After Threatening Major Revisions

For the first time in several years, the version of the FY 2019 National Defense Authorization Act (NDAA) that just passed the Senate does not contain any major reforms to limit bid protests.  But the bill the Senate sent to the conference committee process does contain two provisions aimed at bid protests.  Although they are … Continue Reading

DoD Seeks Streamlined Procurements of Innovative Technologies – Other Transaction Agreements and the Commercial Solutions Opening Pilot Program

The Department of Defense (DoD) has once again emphasized its willingness to engage with commercial companies and other non-traditional contractors to try to expedite and simplify its procurement of innovative technologies. In particular, the Defense Information Systems Agency (DISA) indicated that it plans to enter directly into Other Transaction Authority (OTA) agreements, and DoD issued a … Continue Reading

How Trump Plans To Finance Federal Real Property Projects

[This article was originally published in Law360 and has been modified for the blog.] Earlier this year, President Trump revealed his plan to facilitate new (and much-needed) federal real property projects in part through a $10 billion “mandatory revolving fund,” commonly known as the Federal Capital Financing Fund or the Federal Capital Revolving Fund (the … Continue Reading

Congress Aims to Redefine the “Subcontract”

[Updated August 13, 2018] If an agreement qualifies as a “subcontract” under a government contract, then it may be subject to certain flow-down, compliance, and reporting requirements.  These requirements are intended to protect the government’s interests, and have significant ramifications for contractors, e.g., increasing transaction costs, expanding potential areas of exposure.  These compliance obligations and … Continue Reading

Key Takeaways from Trump’s Infrastructure Plan—Private Financing And A Capital Budget, But No “Buy American” Requirements?

Last week, President Donald Trump released his long-awaited infrastructure plan, entitled a “Legislative Outline for Rebuilding Infrastructure in America.”  Clocking-in at 53 pages, this plan is designed to “stimulate at least $1.5 trillion in new investment over the next 10 years” through $200 billion of federal funding.  The infrastructure plan is intended to provide a … 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

RAND Report Concludes That Protests of Department of Defense Procurements Are Rare, Effective

Last week, the RAND Corporation published a report entitled “Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, And Drivers.”  In it, RAND analyzed the prevalence and impact of bid protests of U.S. Department of Defense (“DoD”) acquisitions, and concluded that DoD bid protests are both “exceedingly uncommon” and, on the whole, … 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

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

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

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

House and Senate Defense Bills Target Executive Order

Congress has weighed in on Executive Order 13673, known officially as the “Fair Pay and Safe Workplaces Order” and unofficially as the “Blacklisting Order.”  While the Office of Management and Budget reviews the Labor Department’s draft of the final regulations and guidance, the House and Senate Armed Services Committees have added language to the Fiscal … Continue Reading

DoD Rule Would Help Contractors Protect Their Technical Data Rights in Commercial Items Used in Major Systems

The Department of Defense (DoD) is considering a proposed rule that would help contractors protect their technical data rights in privately-developed commercial items that are incorporated into major systems, including major weapons systems. The proposed rule likely will be welcomed news to the defense industry, which has long sought to defend contractors’ intellectual property rights … Continue Reading

SBA Proposes New Data Rights and Phase III Preferences under SBIR/STTR Awards

The U.S. Small Business Administration (“SBA”) recently issued a notice detailing proposed amendments to the policy directives governing the Small Business Innovation Research (“SBIR”) and Small Business Technology Transfer (“STTR”) programs.  The notice indicates that the SBA intends to implement significant changes to the current data rights provided under SBIR/STTR awards, as well as the … Continue Reading

DoD IG Report Reveals Ongoing Struggles in IT-Acquisition Reform

IT-acquisition reform remains an area of ongoing concern for Federal agencies and government contractors.  Indeed, as we previously discussed, the GAO has added IT Acquisitions and Operations to its bi-annual list of programs it identifies as posing a high risk for fraud, waste, abuse, and mismanagement.  Strengthened by Congress’ passage in December 2014 of the … Continue Reading

HASC Chairman Proposes New Acquisition Reforms

Defense acquisition reform took another step forward this month with the launch of HASC Chairman Mac Thornberry’s “discussion draft” of legislation that will work its way into the FY2017 National Defense Authorization Act.  Chairman Thornberry continues to press with his commitment to an iterative, incremental drive for acquisition reform.  This year’s bill focuses on key … Continue Reading

Defense Contractors Must Share (Even More) Information About Their IR&D Projects Before DoD Will Reimburse IR&D Costs

The Department of Defense (DoD) will require contractors to disclose more information about their Independent Research & Development (IR&D) projects before the Government will reimburse IR&D costs, the Pentagon said in a proposed rule issued earlier this week.  The proposed rule, which was previewed in an August 2015 white paper, is the latest sign that … Continue Reading

DoD To Reconsider How It Evaluates Proposed IR&D Projects In Awarding Government Contracts

The Department of Defense (DoD) is considering a proposed rule that would prevent defense contractors from promising future Independent Research & Development (IR&D) investments as a way to gain a competitive price advantage in DoD procurements.  Although DoD’s rulemaking is in its early stages, defense contractors with substantial IR&D programs should monitor these developments closely, … Continue Reading

Acquisition Reform Ramps Up Early in 2016

House Armed Services Committee Chairman Mac Thornberry is wasting no time in his efforts to build on last year’s reforms to the defense acquisition system.  Less than a year after he launched his opening salvo in a new round of changes, Chairman Thornberry previewed the year ahead with a recent hearing and a presentation at … Continue Reading
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