Contract Formation & Awards

With Spring Training just a few weeks away it looks like the Biden Administration is stepping up to the plate to ensure the plans in its $1 trillion Infrastructure Investment and Jobs Act can avoid strikes. On February 4, 2022, President Biden signed the Executive Order on the Use of Project Labor Agreements for Federal Construction Projects (the Executive Order), which requires the federal government, in an effort to avoid potential labor disputes and delays in any “large-scale construction contract” (a project valued at over $35 million), to use project labor agreements before awarding a contract. The Executive Order is effective immediately, and construction contractors should begin seeing it applied in future and maybe even pending solicitations or orders. How, exactly, the Executive Order will appear in immediate solicitations is unclear, but the FAR Council is tasked with implementing the Executive Order within 120 days before promptly issuing a final rule. Before that happens, let’s tap the mud off the cleats and make sure you’re ready to play ball.
Continue Reading PLAy Ball! Executive Order Directs Project Labor Agreements for Construction Projects Over $35 Million

On May 12, 2021, the Biden administration unveiled a rather expansive executive order intent on “Improving the Nation’s Cybersecurity.” The lengthy and sweeping order is a comprehensive national cybersecurity overhaul. In addition to requiring significant improvements to the cybersecurity posture of the Federal Civilian Executive Branch (FCEB) agencies, the order also prescribes:

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On March 31, 2020, the Office of the Under Secretary of Defense for Acquisition and Sustainment issued a memorandum attaching a class Commercial Item Determination (CID) promulgated by the Defense Contract Management Agency Commercial Item Group (DCMA CIG) identifying as commercial items specific products and services needed by the Department of Defense (DoD) to address the COVID-19 pandemic (Memorandum).  The Memorandum is specifically intended to “allow contracting officers maximum flexibility” in awarding critical contracts for supplies and services needed for the DoD to combat the COVID-19 pandemic.  The Memorandum is expected to facilitate the award of “urgent commercial item procurements,” and the class CID is specifically “limited to the information pertaining to the 2020 COVID-19 pandemic.”
Continue Reading Commerciality in the Time of Coronavirus—DCMA Issues New Class Commercial Item Determination and Guidance

As the frequency and sophistication of existential threats to national security over the past decade have drastically increased, the United States’ reliance on software to identify threats, rapidly share information, and manage its military resources has increased. Accordingly, the federal government’s ability to timely develop, procure, and deploy software to the field has been—and continues to be—a critical component of national security. Notwithstanding the growing importance of software to national security, the Department of Defense (DoD) software-acquisition process mirrors the lengthy, inflexible process typically reserved for the acquisition of major weapon systems. As a result, the DoD’s software development and acquisition cycles are significantly longer for their commercial counterparts, thus affecting the DoD’s ability to deliver timely solutions to users and rapidly respond to urgent threats.
Continue Reading Slow and Steady Doesn’t Always Win the (Acquisition) Race: The CODER Act Aims to Transform DoD Software Acquisition

A little-heralded change to the statutory definition of “commercial item” has now made its way to a proposed FAR rule, which will open up regulatory relief to a whole new class of government contractors – companies, both domestic and foreign, that regularly sell products developed at private expense to friendly foreign governments. With the December 12, 2017, passage of Section 847 of the National Defense Authorization Act of 2018, Pub. L. 115-91 (“2018 NDAA”), the statutory set of definitions for the term “commercial items” was amended. See 41 U.S.C. § 103. More specifically, Section 103(8), addressing “nondevelopmental items,” was broadened as follows:
Continue Reading New Proposed FAR Rule Makes Way for Broadening Commercial Item Status to Products Developed Exclusively for and Sold to Friendly Foreign Governments

In a highly unusual move, the federal Bureau of Industry and Security is asking U.S. industry to help identify emerging technologies that are essential to national security but currently escape the tangle of laws and regulations that govern — and in some cases restrict or prohibit — the sale or transfer of commodities, technology, and technical data to foreign businesses, research institutions, government and private organizations, and individuals who are neither U.S. citizens nor lawful permanent residents.

Continue Reading The U.S. Government Is Asking Industry to Help Identify ‘Emerging Technologies’ – STAT

On December 12, 2017, President Trump signed the $700 billion 2018 National Defense Authorization Act (“NDAA”) into law. Following negotiations between the House and Senate Armed Services Committees, the NDAA includes new provisions relating to software acquisition within Title VIII — Acquisition Policy, Acquisition Management, and Related Matters, Subtitle H, and the following five sections:

SEC. 871. Noncommercial Computer Software Acquisition Considerations.

SEC. 872. Defense Innovation Board Analysis of Software Acquisition Regulations.

SEC. 873. Pilot Program to Use Agile or Iterative Development Methods to Tailor Major
Software-Intensive Warfighting Systems and Defense Business Systems.

SEC. 874. Software Development Pilot Program Using Agile Best Practices.

SEC. 875. Pilot Program for Open Source Software.

Continue Reading National Defense Authorization Act FY 2018: Directions in Federal Software Acquisitions

During the past few years, discussions in Washington, D.C. have intensified over the battle to modernize the Federal Government’s information technology (IT) systems. In May 2016, Representative Jason Chaffetz—Chairman of the Committee on Oversight and Government Reform in the U.S. House of Representatives—boldly stated that American “[t]axpayers deserve a government that leverages technology to serve…

The comment period for DoD’s proposed rule amending DFARS 212 has been extended to November 10. Click here.

The passage of the Federal Acquisition Streamlining Act of 1994 and the Clinger-Cohen Act of 1996 saw the dawning of a new era in procurement policy, pursuant to which sweeping changes to the procurement laws and regulations governing the acquisition of goods and services offered and sold in the commercial marketplace took hold. These goods and services are referred to, and defined, in the Federal Acquisition Regulation (“FAR”) as “commercial items.” Two major effects of these legislative landmarks were: (1) the streamlining and modification of certifications and clauses required in solicitations and contracts for commercial items; and (2) the exemption of commercial item suppliers from the requirement to submit certified cost or pricing data under the Truth in Negotiations Act (“TINA”).Continue Reading Developments in DoD’s Treatment of Commercial Item Assertions