Archives: Procurement Reform

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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

DoD Retreats on Evaluation of Price Reasonableness

Last week, the Department of Defense (“DoD”) quietly withdrew its ill-received proposed rule on the evaluation of price reasonableness in commercial items acquisitions.  Issued on August 3, 2015, the Proposed Rule purported to provide guidance for evaluating the reasonableness of prices using data other than certified cost or pricing data.  As we previously reported, it … Continue Reading

DoD Proposes DFARS Changes in Attempt to Promote Voluntary Disclosure of Defective Pricing

Pursuant to the Truth in Negotiations Act (TINA), contractors are required to submit current, accurate, and complete cost or pricing data when negotiating certain contracts with the Government.  On November 20, the Department of Defense (DoD) published a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS).  The change would require DoD contracting … Continue Reading

“We Mean It, Maaannnn”—New Proposed Regulation Seeks to Encourage Higher-Quality Proposals by Boosting Enforcement of Five-Bidder Limit in Two-Phase Procurements for High-Value Construction Contracts

On October 8, 2015, the U.S. Department of Defense (“DoD”), National Aeronautics and Space Administration (“NASA”), and the U.S. General Services Administration (“GSA”) jointly proposed a change to the Federal Acquisition Regulation (“FAR”) that would make it more difficult for agencies to bypass the existing five-bidder limitation in two-phase procurements for design-build projects worth more … Continue Reading

DoD Issues Targeted Class Deviation Updating Recently Adopted Cybersecurity DFARS Clauses

Last week, on October 8th, DoD issued a class deviation replacing DFARS 252.204-7012 and 252.204-7008 with revised clauses that give covered contractors up to nine (9) months (from the date of contract award or modification incorporating the new clause(s)) to satisfy the requirement for “multifactor authentication for local and network access” found in Section 3.5.3 … Continue Reading

GSA Seeks Input on Eliminating IT Schedule 70’s Two-Year Experience Requirement

Last month, we discussed Information Technology (IT) Schedule 70, one of the largest contract vehicles administered by the U.S. General Services Administration (GSA). GSA now is evaluating whether Schedule 70 should be made more accessible to certain small contractors, new IT providers, and other, similarly situated firms.… Continue Reading

DoD IR&D Projects May Not Be So “Independent” For Long

Last week, the Department of Defense (DoD) issued a white paper announcing that, beginning in FY2017, it will require contractors to notify DoD before undertaking any new Independent Research & Development (IR&D) projects. Contractors also will be required to inform DoD of “the results from these investments.” The white paper acknowledges that these requirements are a departure … Continue Reading

GSA Seeks Industry Input on Cybersecurity Schedule Offerings

Earlier this month, the U.S. General Services Administration (GSA) issued a Request for Information (RFI) soliciting feedback from industry on ways to improve the sale of Cybersecurity and Information Assurance (CyberIA) products and services through GSA’s multi-billion dollar Information Technology (IT) Schedule 70. IT Schedule 70 currently features more than a dozen special item numbers (SINs) for cybersecurity … Continue Reading

OMB Issues Final Guidance Implementing FITARA

The Office of Management and Budget (“OMB”) has issued final guidance (the “Guidance”) implementing the Federal IT Acquisition Reform Act (FITARA).  We have previously discussed FITARA’s requirements that seek to reform and streamline the Government’s information technology (“IT”) acquisitions, which account for approximately $80 billion in annual spending. At its core, the Guidance implements the … Continue Reading

Proposed “Fair Pay and Safe Workplaces” Regulations Clarify New Responsibilities for Government Contractors

On May 28, 2015, the Federal Acquisition Regulatory (FAR) Council published proposed regulations that create additional obstacles for offerors seeking to obtain government contracts.  As we previously discussed, these regulations implement the “Fair Pay and Safe Workplaces” Executive Order 13673 that President Obama signed on July 31, 2014.  The regulations, which were accompanied by and … Continue Reading

Renewed Pressure to Definitize Letter Contracts

Earlier this week, the GAO issued a report to members of the House and Senate Appropriations Committees regarding the Air Force’s compliance with definitization and reporting requirements associated with the use of undefinitized contract actions (“UCAs”).  UCAs, which commonly take the form of letter contracts, allow contractors to begin performance and seek payment before all … Continue Reading

Contracting Officers Must Soon Separately Justify Awards to Offerors Proposing High-Percentage or “Pass-Through” Subcontracting

Over the past decade, Congress has focused on eliminating excessive “pass-through” charges—charges defined as overhead costs or profits passed to the Government by contractors adding negligible value over work done by lower-tier contractors.  The efforts began with the Post-Katrina Emergency Management Reform Act of 2006, which introduced limitations on tiered subcontracts after allegations that the … Continue Reading

An Acceptable Proposal: Set Appropriately High, Clear Standards for DoD’s Auditors and LPTA Competitions

On April 30, 2015, the House Armed Services Committee passed H.R. 1735, the National Defense Authorization Act for Fiscal Year (“FY”) 2016, with an amendment (Log #325rl) that could shape how the Department of Defense (“DoD”) acquires audit and audit readiness services for its Financial Improvement and Audit Readiness (“FIAR”) Plan. Under the FIAR Plan, … Continue Reading

Doubts Raised About GSA’s New Vision for Federal Contracting

If comments at a recent public meeting are any indication, the General Service Administration’s proposed Transactional Data Reporting rule may be in danger of stalling before it even gets started. The proposed rule, announced to great fanfare last month, has been trumpeted by GSA as a “new vision for Federal purchasing.” During an all-day public … Continue Reading
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