FED GOV CON Webinar Wednesdays 2019 Series JSchaus & Assoc. Washington DC +1–202–365–0598
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NDAA 2019: Focus on Bid Protests, OTA, and Commercial Contracting Changes
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates
• 2019 NDAA IMPORTANT CHANGES AND TRENDS: Bid Protests Commercial Item Contracting Supply Chain OTA
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates
• BID PROTEST PROCESS TREND 2019 NDAA continues to reflect congressional concern with the bid protest process and its impact on procurements. In this year’s NDAA, congress has focused on protests that are filed at GAO, and if unsuccessful, are then taken to the Court of Federal Claims. Congress is requiring DoD to prepare a report analyzing these “double” protests, including success rates, impact on procurement planning, and costs. In addition, not later than 12/1/2019, DoD must develop a plan and schedule for an expedited bid protest process for DoD contracts with a value less than $100,000.
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates
• BID PROTEST PROCESS TREND Not later than 12/1/2019, DoD must develop a plan and schedule for an expedited bid protest process for DoD contracts with a value less than $100,000. This provision represents a partial implementation of the Section 809 Panel’s recommendation that DoD be granted its own protest authority, outside of GAO and COFC. Should we expect to see the creation of a new process similar to the GSBCA’s authority to hear protests regarding telecommunications procurements in the 1990s?
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates
• BID PROTEST PROCESS TREND Not later than 12/1/2019, DoD must develop a plan and schedule for an expedited bid protest process for DoD contracts with a value less than $100,000. This provision represents a partial implementation of the Section 809 Panel’s recommendation that DoD be granted its own protest authority, outside of GAO and COFC. Should we expect to see the creation of a new process similar to the GSBCA’s authority to hear protests regarding telecommunications procurements in the 1990s?
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates
COMMERCIAL ITEMS Splits “commercial item” into two categories: Commercial products and Commercial Services. Recognizes that state and local governments may be included in the definition of commercial customers. Effective date of January 1, 2020.
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates
COMMERCIAL PRODUCTS (1) A product, other than real property, that— (A) is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and (B) has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public. OR
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates COMMERCIAL PRODUCTS (2) A product that— (A) evolved from a product described in paragraph (1) through advances in technology or performance; and (B) is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation. (3) A product that would satisfy the criteria in paragraph (1) or (2) were it not for— (A) modifications of a type customarily available in the commercial marketplace; or (B) minor modifications made to meet Federal Government requirements.
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates
COMMERCIAL PRODUCTS (6) A nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that — (A) the product was developed exclusively at private expense; and (B) has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates COMMERCIAL SERVICES (1) Installation services, maintenance services, repair services, training services, and other services if— (A) those services are procured for support of a commercial product, regardless of whether the services are provided by the same source or at the same time as the commercial product; and (B) the source of the services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government;
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates COMMERCIAL SERVICES (2) Services of a type offered and sold competitively, in substantial quantities, in the commercial marketplace— (A) based on established catalog or market prices; (B) for specific tasks performed or specific outcomes to be achieved; and (C) under standard commercial terms and conditions. 3) A service described in paragraph (1) or (2), even though the service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor.
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates
COMMERCIAL PRODUCTS AND SERVICES DoD Task of Identifying Exemptions for Commercial Products and Services Expands 2017 NDAA stated that for all provisions and clauses promulgated after January 1, 2015, there must be an exemption for commercial products and services unless DoD makes a determination that an exemption is not in the best interests of the government. 2019 NDAA moves the review time back to October 13, 1994.
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates OTHER TRANSACTION AGREEMENTS
2018 NDAA expressed a desire to increase the use of OTAs for science and technology and prototyping programs. Also allowed follow-On production contracts may be awarded to consortia of industry and
academic institutions. 2019 NDAA continues expansion of OTA usage: DOD to collect and analyze data related to the Department’s use of OTAs, report annually to Congress on the data collected, and update policy and guidance related to the use of OTAs. Follow-on production OTAs, to allow them even if predecessor prototype projects had not been completed.
2019 – Fed Gov Con Webinar Series - Washington DC JSchaus & Associates SUPPLY CHAIN “The Secretary of Defense shall develop a process and procedures for limiting foreign access to technology through contracts, grants, cooperative agreements, or other transactions, when such limitation is in the interest of national security.” On December 21, 2018, President Trump signed into law H.R. 7327, the “Strengthening and Enhancing Cyber-capabilities by Utilizing Risk Exposure SECURE Technology Act.” The law creates a Federal Acquisition Security Council to set policy and standards to address supply chain risk. The Council has the ability to make recommendations to exclude sources for federal procurement actions.
THANK YOU! JSchaus & Assoc. Washington DC hello@JenniferSchaus.com www.JenniferSchaus.com +1–202–365–0598 Speaker: Mary Beth Bosco Email: Marybeth.bosco@hklaw.com Phone: 202.469.5270