This briefing covers active market intelligence, regulatory guidelines, and tactical capture recommendations for federal and defense contractors pursuing opportunities in this procurement classification.
The Situation: On December 12, 2017, President Trump signed the 2018 National Defense Authorization Act for Fiscal Year 2018, H.R. 2810. Title VIII of the Act contains a number of provisions that could affect defense contractors.
The Result: Congress has created enhanced post-award rights for offerors, directed the Secretary of Defense to take proactive measures concerning intellectual property and data rights, mandated a program to procure commercial products through commercial e-commerce portals, and modified requirements for disclosing cost or pricing data.
Looking Ahead: In 2018, we can expect to see disappointed offerors exercising their post-award rights, the Department of Defense making efforts to increase its understanding of intellectual property and data rights, and implementation of an e-commerce procurement plan.
Title VIII of the 2018 National Defense Authorization Act (“NDAA”) includes several provisions that are likely to affect companies currently holding defense contracts and companies seeking to do business with the Department of Defense (“DOD”). Perhaps most significantly, the 2018 NDAA creates new post-award debriefing rights for offerors, authorizes a pilot program that would require certain unsuccessful offerors to reimburse DOD for the cost of processing certain protests, mandates a program for purchasing from commercial e-commerce vendors, and directs DOD to shore up its efforts in understanding the government’s intellectual property rights.
Enhanced Debriefings
Section 818 of the NDAA directs the Secretary of Defense to revise the Defense Supplement to the Federal Acquisition Regulation (“DFARS”) to provide additional post-award debriefing rights to offerors. Specifically, Section 818 provides disappointed offerors with the opportunity to submit additional, follow-up questions within two business days of a post-award debriefing. The agency is required to answer these questions, in writing, within five business days of receipt. Significantly, a debriefing is not considered to be concluded, and the five-day period for obtaining a stay of contract performance in connection with a protest bid protest at the U.S. Government Accountability Office (“GAO”) under the Competition in Contracting Act (“CICA”) does not commence, until the day the agency delivers its written response to the follow-up questions. Thus, not only does Section 818 provide an opportunity for offerors to seek additional information regarding an agency’s evaluation and award, the new follow-up question process will also extend the time for filing a bid protest that triggers a CICA stay. This change will allow offerors additional time to review their protest options more fully and to devise the best legal strategies for challenging a contract award decision.
Read more: United States: What Defense Contractors Should Expect: Important Changes In The 2018 NDAA
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