The House version of the 2018 National Defense Authorization Act (“NDAA”) (passed July 14, 2017) includes key provisions that would radically change the way the Government purchases certain commercial items, and it may result in the extinction of large parts of the Federal Supply Schedules as we know them. Section 801 of the NDAA promotes Government wide use of online commercial marketplaces (“online marketplaces”) such as Amazon, Staples, and Grainger for the acquisition of certain commercial off-the shelf (“COTS”) items, defined as “commercial products” in the proposed legislation. If enacted, the NDAA would be a revolutionary development in the way the Government buys many of its products, allowing agencies to leapfrog over competitive bidding requirements and numerous mandatory clauses now included in Government contracts for commercial items.

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Following up on his repeated promises that the government will buy American and hire American, President Trump signed a Presidential Executive Order on Buy American and Hire American (the “Order”) on Tuesday, April 18, 2017, directing executive agencies to enhance acquisition preferences for domestic products and labor under federal contracts and federal grants. Federal contractors should note that the Order serves only as a blueprint for the administration’s intentions and imposes no immediate requirements. Those will follow — but in what form and to what degree, we can only guess. Contractors should prepare for those changes and be assured that – with respect to the Order’s impact on supply chains and contractor purchasing systems – the devil will indeed be in the details.

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In the course of responding to a Request for Proposals (“RFP”) or Request for Quotations (“RFQ”), have you ever encountered technical specifications that you regard as unreasonable? Have you ever wondered why the Government included those specifications in the first place and, more generally, whether those specifications are even necessary to fulfill the requirements giving rise to the acquisition? If your company is like most out there, the answer to these questions is a resounding “yes!” What to do next, you ask? A recent case before the Government Accountability Office (“GAO”) is instructive.

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As a bid protest lawyer, one of the most frequent questions I hear from companies considering whether to pull the trigger and file a pre- or post-award bid protest is “Can we win?” My response – regardless of the meritorious nature of the protest grounds and the corresponding flaws in the procurement – is necessarily tempered by sobering data that confirms what most seasoned government contractors already know: prevailing in a bid protest is an uphill battle. For example:

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If you’ve recently considered filing a bid protest, you may have found yourself out of luck due to the expiration of the U.S. Government Accountability Office’s (“GAO”) statutory jurisdiction to hear certain protests involving task and delivery orders. Since 2008, the GAO has been the exclusive forum for prospective contractors to assert a protest challenging task order solicitations and awards with an anticipated value of $10 million or more, which have historically accounted for approximately 10% of protests filed at the GAO since that time. However, the GAO’s authority to hear protests involving civilian agency task orders – aside from those arguing that the order increases the scope, period, or maximum value of the underlying contract – expired on September 30, 2016, when Congress failed to pass legislation that would have extended the GAO’s task order protest jurisdiction.

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On August 8, 2016, the U.S. Office of Management and Budget (“OMB”) promulgated an Open Source Software (“OSS”) policy via the Memorandum for the Heads of Departments and Agencies, M-16-21 (“Memorandum” or “M-16-21”). The high-level purposes of the Memorandum are to promote reuse of federal contractor and employee custom-developed code, and to improve the quality of such software through public participation. To these ends, the Memorandum has two major directives: (1) all custom-developed code must be broadly available for reuse across the federal government subject to limited exceptions (e.g., for national security and defense) and (2) under a three-year pilot program, federal agencies are required to release at least 20% of their custom-developed code to the public as OSS. The intent here is to enable continual quality improvements to the code as a result of broader public community efforts. As discussed below, the requirement to release custom-developed code as OSS may effectively reduce the creator’s ownership rights, and have economic impacts on both the value of ownership and pricing when bidding on government contracts.

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