As I recall, questions have been posted in the past about when a new procurement statute applies to contracting operations? When enacted or when the FAR implementation is promulgated in a Federal Acquisition Circular or through a FAR deviation?

In a new decision on a sustained protest posted to the Wifcon home page, the GAO addresses that issue at some length, citing the Supreme Court. And while the decision does not answer all questions, it is essential reading for contracting officers. See InfoPoint LLC, B-419856, Aug. 27, 2021. Here is an excerpt:

Quote

 

Where a statute has no effective date, absent a clear direction by Congress to the contrary, it takes effect on the date of its enactment. Johnson v. U.S., 529 U.S. 694, 702 (2000) (quoting Gozlon-Peretz v. U.S., 498 U.S. 395, 404 (1991)). In certain situations, such as those where a statute directs an agency to issue regulations to effectuate a statutory provision, our Office has concluded we have no basis to sustain a protest where the agency has not yet promulgated the required regulations. See Trailboss Enters., Inc., B-415970 et al., May 7, 2018, 2018 CPD ¶ 171 at 6. Here, however, the 2020 NDAA provision does not direct DOD to issue regulations or otherwise take any action to implement the provision. See Pub. L. No. 116-92 § 1629; 133 Stat. 1198, 1741 (2019).

 

The discussion goes on for a couple of pages and becomes complicated. In my opinion it's a must-read.

 

Thanks, Vern. In addition to the teaching points concerning the effective date and applicability of new statutes,  the subject solicitation and Air Force policy that the Joint Venture entity itself must hold facility security clearance, rather than the individual members, is interesting. Such policy would essentially exclude any new joint venture formed for a contract. The SBA raised that point and said that it’s regulations that allow the JV members’ qualifications to be considered in lieu of restricting qualifications to the JV entity are consistent with the 2020 NDAA, stating that  a “clearance for access to a Department of Defense installation or facility may not be required for a joint venture if that joint venture is composed entirely of entities that are currently cleared for access to such installation or facility.” 

I'm surprised the Air Force fought this. Why didn't they just process an individual deviation from the DFARS as a corrective action?

3 hours ago, Don Mansfield said:

Why didn't they just process an individual deviation from the DFARS as a corrective action?

A deviation to what DFARS section?

4 hours ago, Don Mansfield said:

I'm surprised the Air Force fought this.

And fought hard.

1 hour ago, Retreadfed said:

A deviation to what DFARS section?

I should have said a FAR deviation. FAR 52.204-2 requires compliance with the NISPOM.

Having said that, I don't think it would have been a deviation to remove the solicitation provision requiring facility clearance at the time of proposal submission.

DOD is understandably sensitive about security. In my opinion, Congress should have allowed it to make its own rules in that regard.