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  1. Yesterday
  2. ji20874

    NDAA Implementation

    I agree with the frog. We shouldn't blame individual contracting officers for not implementing the NDAA. By the way, I think all the procurement analysts up there are GS-15.
  3. PepeTheFrog

    NDAA Implementation

    PepeTheFrogs agrees on all counts. PepeTheFrog's solution is different from empowering each and every brainlet contracting officer to implement the NDAA each year. Instead, stick with the current system, but administer severe beatings until morale and performance improves. Congress should publicly horse-whip USD(A&S) and the Director of DPC for not being able to pencil-whip a deviation in time. It's bad enough that the FAR and DFARS cases take so long, but is it really that hard to pencil-whip a DOD Class Deviation memo? (As bob7947 pointed out, the deviations remain in effect until the actual DFARS case is finalized, so it can act as immediate relief.) Can anyone tell PepeTheFrog why DPC cannot roll out a handful of DOD Class Deviation memos within one month of the day the NDAA is signed by President Trump? This seems inexcusable. What is the higher priority at DPC? How hard is it to stroll around the Pentagon and staff a memo up the chain? Step 1. GS-13 procurement analyst drafts the memo. 2. Review by Director of DARS. 3. Review by the staff of the Director of DPC. 4. Review by the staff of USD(A&S). 5. Signature.
  4. Contracting Pirate

    NDAA Implementation

    Correct in yer first assumption. Not sure about the rest of it. I'm just a lowly scallywag followin' orders.
  5. Retreadfed

    NDAA Implementation

    What does this mean? The DFARS does not currently address what is in the NDAA. Does this mean that a Navy contracting officer can now award a cost reimbursement contract in excess of $50M without the approval called for by the NDAA? If such approval is not obtained, is the contract subject to being challenged as invalid because the contracting officer did not have the statutory authority to award the contract?
  6. As those familiar with government contracts are undoubtedly aware, ensuring a bid protest is timely filed with GAO is a paramount consideration. GAO takes a particularly dim view of protests not filed in accordance with its timeliness regulations, which can encourage parties to file a protest as quickly as possible. As GAO recently explained, however, in the context of extended debriefings, there is such a thing as filing too soon. Celeris Systems, Inc., B-416890 (Comp. Gen. Oct. 11, 2018), involved a task order procurement by the Navy for various support services. Celeris—the incumbent contractor—timely submitted a proposal in response to the task order solicitation but was not selected for award. Celeris promptly requested a debriefing from the agency. As relevant here, debriefings conducted by DoD agencies have become much more involved this year. We previously blogged on Section 818 of the 2018 NDAA, which substantially increased the amount of information DoD agencies were to provide to unsuccessful offerors during the debriefing process. To this end, DoD issued a class deviation in March of this year requiring contracting officers to provide an opportunity for unsuccessful bidders to submit questions following the debriefing. These are the so-called “enhanced debriefing” procedures required by the 2018 NDAA. Since it submitted a bid in response to a Navy procurement, Celeris was to receive an enhanced debriefing. The debriefing began on September 24, and Celeris subsequently submitted questions to the Navy on September 26. Then, on September 28, Celeris filed its protest with GAO. Importantly, the Navy had not yet provided responses to Celeris’s September 26 debriefing questions when Celeris filed its protest. The Navy subsequently moved to dismiss Celeris’s protest. According to the Navy, since Celeris had not received responses to its debriefing questions, its debriefing was not concluded; therefore, the Navy argued, Celeris’s protest was subject to dismissal as premature. Celeris replied that the Navy’s delay in responding to questions should not impede its ability to protest the procurement or obtain an immediate performance suspension. GAO agreed with the Navy. As GAO explained “we consider a protest to be premature until the conclusion of the entire debriefing process, so as in other circumstances, we will also dismiss a protest filed before completion of the extended debriefing process[.]” Additionally, with respect to Celeris’s arguments about preserving its protest rights, GAO explained that its debriefing timeliness policy was designed to “encourage early and meaningful debriefings and to preclude strategic or defensive protests.” As such, “[t]he potential effect on an agency’s ability to commence or continue performance of the awarded contract . . . during the extended debriefing process (or from the protester’s perspective, its entitlement to a stay of performance), must be considered secondary to the policy interests identified above, which require the dismissal of a protest filed before the completion of a debriefing.” Cerleris’s protest was dismissed as premature. Enhanced debriefings are a new feature of contracting with DoD customers. While enhanced debriefings do provide substantially more information, they also take longer to complete. As Celeris discovered, enhanced or not, GAO will not consider a protest until a debriefing is concluded. As such, Celeris will need to wait for its questions to be answered and the debriefing to close before it may refile its protest for GAO consideration. View the full article
  7. ji20874

    NDAA Implementation

    I also would not go so far as to say the contracting officer is breaking the law — maybe the statement was only intended as hyperbole?
  8. Contracting Pirate

    NDAA Implementation

    Yarr, Deputy Assistant Secretary of the Navy (Acquisition and Procurement) "The DASN AP serves as the Navy's Competition Advocate General, and advises the ASN on Federal Acquisition Regulation (FAR), Defense Acquisition Regulations System (DFARS) and Navy-specific acquisition regulations and policies."
  9. C Culham

    NDAA Implementation

    I might almost be convinced in a hard re-read of the language but are we (yep including myself now) sure? A full read says the CO can't do it "unless the contract is approved by the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition, Technology, and Logistics (as applicable)." The OP has stated that the "DASN(AP)" said to go for it. The DASN(AP) by my read is most likely the service acquisition executive of the military department (Navy?). So if true in a full read the OP hasn't violated a law Noting this what the DFAR will do is take the NDAA language and spider-web it into a most likely confusing and elongated approval process to do the contract. The OP gets props from me in going to the right person, getting the ok, and moving on.
  10. bob7947

    NDAA Implementation

    Retread: Those are the two I saw.
  11. bob7947

    NDAA Implementation

    Frog: There goes your habitat! Here are my thoughts. As I have written, there are too many changes in Defense contracting law every year, Look at this page and read the Early Engagement Opportunity sections, The regulators are falling behind under the legislative onslaught, In these situations, to provide direction to the Defense contacting personnel, the USD's office must provide timely deviations to regulation. It appears, this one slipped through the cracks. You can search here to see if it was done and I missed it. In Class Deviation 2018-00017 the USD's office wrote: That, in the least, is what should have been done here. Instead, the pirate encountered the problem. As a result, the USD is violating the law, the pirate's advisors are violating the law, and the pirate is violating the law. At least the pirate made sure his/her flak jacket is riding low.
  12. Retreadfed

    NDAA Implementation

    I don't want to speak for Bob, but I see two separate requirements in the statute. Subsection (a) requires DoD to change the DFARS to establish a preference for fixed price contracts. Subsection (b) imposes an independent obligation on contracting officers in regard to cost reimbursement contracts. (b) does not mandate DoD to do anything but is specifically directed at contracting officers.
  13. PepeTheFrog

    NDAA Implementation

    Yes, it directs one agency in the Executive Branch, the Department of Defense, to change its procurement regulations and business practices. If there was no Defense Acquisition Regulations System or assortment of DFARS revision teams or Defense Pricing and Contracting or DFARS, then it would make sense for Congress to pass laws that directly, immediately control the behavior of DOD contracting officers. But that's not how the system has worked. Congress delegated quite a bit of their legislative powers to the Executive Agencies in the form of rule-making, regulation, adjudication, and the rest of the Administrative Procedures Act smoke and mirrors. Similarly, Congress delegated quite a bit of their legislative powers to the Executive Agencies through the Office of Federal Procurement Policy Act. PepeTheFrog is pleased to see that bob7947 wants to eradicate the unconstitutional administrative state, neuter the oppressive federal regulatory agencies, and bring America back to the days of legislative accountability instead of the rise of the Deep State. For now, we will have to deal with unelected, tyrannical, elitist, and meddlesome Deep State bureaucrats. But don't worry, we are draining the swamp, slowly but surely. In the meantime, contracting officers will wait for a deviation or for the FAR or DFARS to be revised.
  14. ji20874

    NDAA Implementation

    I don't think it has anything to do with being sheep (I am assuming sheep is meant to be an unflattering descriptor) -- staying with the DFARS for the time being is a prudent and entirely professional decision for a contracting officer. If the Congress or the President are unhappy with DoD's process or compliance with the statute, they may raise that matter with the Department.
  15. Contracting Pirate

    NDAA Implementation

    Also received confirmation from DASN(AP), stick to the DFARS.
  16. bob7947

    NDAA Implementation

    What else would sheep do?
  17. Contracting Pirate

    NDAA Implementation

    Results: Although legal were the ones originally raising this concern, they have since deferred to giving the DFARS precedence. The Policy Team also agreed. Common sense has won the day!
  18. bob7947

    NDAA Implementation

    Pepe and Carl: Does the follwoing section of the law have meaning?
  19. Last week
  20. C Culham

    NDAA Implementation

    I agree with ji and Pepe except if your agency decides by deviation to implement the NDAA now you in turn would have to follow the deviation. My reasoning the statute as noted directs the DoD to change the regulations. DoD has not changed the regulations and a CO and even the authorities noted in the NDAA language do not have the authority to change the DFARS unless they follow the deviation route. You may want to ask your question in the agency beyond legal counsel.
  21. Koprince Law LLC

    5 Things You Should Know: SBIR/STTR Programs

    Beyond set-aside procurements, the government bolsters small businesses by encouraging their participation in federally-funded research. Two key programs exist: the Small Business Innovation Research (SBIR) Program and the Small Business Technology Transfer (STTR) Program. Ultimately, the government hopes that participating small businesses will commercialize technologies developed with federal research dollars. While the two programs are similar, a key feature distinguishes them: the STTR Program requires a small business to partner with a qualified research institution. SBA has issued regulations and directives that govern these two programs. Here are five things you should know about the SBIR/STTR Programs. 1. What size standard applies to the SBIR/STTR Programs? In stark contrast to SBA’s varying size standards in the procurement sphere, only one size standard governs the SBIR/STTR Programs: 500 employees. In other words, an SBIR or STTR awardee, together with its affiliates, must not have more than 500 employees. And a small business’s size is determined at the time of the award for both Phase I and Phase II awards (the programs consist of three phases). 2. Who can own and control a small business participating in the SBIR/STTR Programs? Under the SBIR Program, an awardee must be: A concern that is more than 50% directly owned and controlled by one or more U.S. citizens or permanent resident aliens, other small business concerns (each of which is 50% directly owned and controlled by U.S. citizens or permanent resident aliens), an Indian tribe, ANC or NHO or one of their wholly-owned businesses, or any combination of these; A concern that is more than 50% owned by multiple venture capital operating companies, hedge funds, private equity firms or any combination of these; or A joint venture in which each entity must be one of the entities listed in the first two bullet points. These rules also apply to the STTR Program, with the exception of the middle bullet point. That is, a STTR Program awardee cannot be more than 50% owned by multiple venture capital operating companies, hedge funds, or private equity firms. 3. Is a joint venture considered small as long as all venturers fall under the 500-employee size standard? Only if the venturers’ combined employee count is less than 500 employees. Under SBA’s regulations, joint venturers are affiliates and, therefore, their employee counts are added together to determine size. Additionally, each member of an eligible joint venture must meet the appropriate ownership rule. But wait! Don’t SBA’s regulations include an exception allowing a joint venture to qualify as small if each venturer is small under the relevant size standard? Yes, but that exception does not apply to the SBIR and STTR Programs. The only escape from affiliation under these programs–as it relates to joint venturing–is an approved joint venture between firms in an SBA-approved mentor-protégé relationship under SBA’s 8(a) Program. Note that the current SBIR/STTR regulation does not provide an affiliation exemption for participants in the SBA’s All Small mentor-protege program. It’s unclear whether this distinction is intentional or a regulatory oversight. With SBA discussing merging the 8(a) and All Small mentor-protégé programs, this may eventually change. 4. Are there any workshare requirements applicable to the SBIR/STTR Programs? Yes. For the SBIR Program, the awardee must perform a minimum of two-thirds of the research or analytical effort for in Phase I. Then, in Phase II, an awardee must perform at least one-half of the research or analytical efforts. Under the STTR Program, the awardee’s required share is less. But remember that a qualified research institution is also a player in the STTR Program and must take a slice of the work. So for both Phase I and Phase II, an STTR awardee must perform a minimum of 40 percent of the research and development work. The partnering research institution must also perform a relatively large share of the work–i.e., at least 30 percent of the research and development work during both Phase I and Phase II. 5. Who must direct the work under the SBIR/STTR Programs? The SBIR awardee must employ the principal investigator–i.e., the individual who provides the scientific and technical direction to the project–at the time of award and for the project’s duration. Thus, an SBIR awardee cannot rely on, say, a larger, more sophisticated subcontractor to lead and oversee the work. The paradigm differs in the STTR Program given the awardee’s close collaboration with a research institution. There, the principal investigator can be employed by either the STTR awardee or the research institution. These programs are unique and offer prime benefits for awardees. So, if you’re considering applying to the SBIR Program and/or STTR Program, and have compliance questions, give us a call. View the full article
  22. PepeTheFrog

    NDAA Implementation

    PepeTheFrog's opinion is that you should follow the FAR/DFARS in this case and as a general rule when similar situations arise. Contracting officers can barely read and follow the FAR, so it's unreasonable to expect them to interpret and implement legislation, especially when there exists a system to implement the legislation into standard procurement regulations. Even more, in this case, the law only directs DOD to change the regulations: "the Defense Federal Acquisition Regulation Supplement shall be revised."
  23. ji20874

    NDAA Implementation

    I’m not an attorney — but I say to follow the DFARS.
  24. general_correspondence

    NDAA Implementation

    I found myself reading this in pirate voice
  25. When preparing a proposal for a Government solicitation, ensuring that your product or service meets all of the requirements specified by the Government’s solicitation is essential. Simple enough, right? Not necessarily. One of the most frequent pitfalls in proposal preparation is assuming the Government understands your products and industry as well as you do, which may not be the case. A recent GAO bid protest demonstrates that a “well-written proposal” sometimes must include information that a contractor might expect the Government evaluation team ought to know. The protester in Government Scientific Source, Inc., B-416777 (Comp. Gen. Oct 18, 2018) recently made just that all-too-common error. In the case, the protester was an unsuccessful awardee of a VA contract for “electronic analytical balances.” The Solicitation provided a number of brand-name balances as examples under a “brand name-or-equal specification,” indicating that alternatives to the brand-name models were acceptable. However, alternatives were still required to have “nine salient characteristics.” These specified characteristics included “a ‘[r]emovable pan for cleaning to reduce risk of contamination.’” The Solicitation specified the “technical evaluation would use . . . descriptive literature” provided by each bid submitter “to evaluate whether the quoted products were technically acceptable, and to assess the degree and extent to which the RFQ requirements were satisfied.” Ultimately, the VA determined that the protester did not show that the balances it proposed included the required removable pan. The protester filed a GAO bid protest, arguing that its product obviously included removable pans, though not specified, because removable pans were “an industry standard for all balances, regardless of manufacturer.” Though the removable pans may have been an “industry standard,” GAO pointed to the protester’s responsibility to submit “a well-written quotation, with adequately detailed information, that clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency.” Here, GAO concluded “the illustrations in [the protester’s] quotation [did] not show the pans in its balances are removable, nor does the text indicate the presence of removable pans.” Though the removable pans may have been considered a given by the protester, and others in the protester’s line of work, assuming that the agency understood the protester’s products as well as those in the industry would was the protester’s fatal flaw. This case presents vital lessons for all government contractors. When submitting a bid, it’s wise to spell out how the product or service meets every requirement indicated in the solicitation, and never assume the Government is as industry-savvy as you. View the full article
  26. bob7947

    NDAA Implementation

    Here is the section.
  27. Avast ye, I'm submittin' an Acquisition Plan for a cost-type contract well over $50M for approval. The 2017 NDAA Section 829 requirement "Use of Fixed-Price Contracts" requires Cost-Type contracts over $50M to be approved at different thresholds than previous years. It calls for this change to go into affect on 1 OCT 2018. Its currently still being vetted for approval in DFARS case number 2017-D024. While awaitin' a response from Legal, me question to ye is whether I should be beholden to approval from the DAR council for inclusion in the DFARS or if the failure of the Gov. to include the NDAA change by the specified date in Section 829 does not excuse me from adhering to the NDAA requirement.
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