Nov 16, 2017

By Barbara Kinosky 

Yes, you read that right.  Deep in the murky depths of the $700 billion fiscal 2018 National Defense Authorization (NDAA) bill is language that puts a chill down the spine of protesters. Companies with revenue more than $250 million will have to pay the costs for filing losing protests on DoD procurements at the GAO.  Now protestors pay their own costs and attorneys’ fees with some exceptions. Section 827 of the NDAA would require DoD to launch a pilot program beginning in late 2019 and ending in late 2022 that would require those unsuccessful DoD protestors to pay DoD’s “costs incurred in processing protests.”  As in pilot programs there will be the usual report (which is where the writers of reports will make out big time) on the success of the pilot program.

Why you may ask if this happening?  House-Senate conferees in a rare display of unity, agreed that contractor bid protests needed to be reduced to reduce the time of the procurement cycle, particularly with weapons systems.  This from a Congress who hasn’t done much (my editorial note).

Second editorial note from me.  Most weapons systems contacts are very large.  They are larger than the national debt of Venezuela, which is very large indeed.  So, one would think that given the creep on cost on many weapons systems contracts one would want an even greater degree of scrutiny on those procurements.  Need I mention the mid-air refueling tanker cost woes?

Other questions that will hopefully be addressed in the regulations.  How are costs computed?  How is revenue computed?

Debriefings – NDAA Section 818

New requirements:

  • In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000with a small business or nontraditional contractor,
  • An option for the small business or nontraditional contractor to request such disclosure
  • A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher.
  • Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure above and the debriefing
  • Plus, a chance to ask follow up questions

Both the winning and losing offerors would be entitled to a debriefing – which at this time, I snarkily say, are still free

Other Stuff I Read So You Don’t Have to

  • Section 802 – DoD will establish a pool of intellectual property experts to get a handle on exactly who owns what
  • Section 803 – new regulations on using private auditors to do incurred cost audits
  • Section 806 – The micro purchase threshold will be increased from $3,000 to $10,000.
  • Section 808 – another committee will be formed! This one on technology threats
  • Section 811 – increase on submission of cost and pricing data numbers and a bit of an increase on the contracting officer’s authority to get such data
  • Section 822 – a bit of an affirmation of using LPTA for procuring expendable goods

Service Contract Act.

On another note, I gave four different speeches last week all on the Service Contract Act, now referred to as the Service Contract Labor Standards.  That must be a record.  Guinness Book of Records – is there a category for the most speeches in one week on the Service Contract Act?  In any event, no one at any of the four presentations fell asleep and many even asked questions.  More I cannot ask for!


Happy Thanksgiving all!

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  • Saundra Thurman-Custis says:

    I get the impact and abuse of irresponsible protests, however, there are considerations that can prevent the need for protests.

    I’d like to see the government invest more training on how to write solicitations.

    We’re seeing more cutting and pasting of these documents, shorter deadlines for questions/clarifications in addition to shorter deadlines for responses.
    Let’s work together as a contracting community to select the
    “Best Value”