acquisition strategy | The Contracting Education Academy

March 5, 2020 By cs

GAO declines to limit DoD’s ‘experimental purchasing’ authority

In its recent decision in Air Tractor, Inc., the Government Accountability Office (GAO) held that the Department of Defense (DoD) may, at its own discretion, begin a project with agreements under its prototyping Other Transaction (OT) authority, and award later phases of the same project on a sole source basis under its experimental purchasing authority.

In the decision, GAO discussed distinctions between these avenues, and gave a broad reading to the DoD’s authority to award contracts for experimental work.

The past few years have seen a swell of interest in DoD’s ability to sidestep the Federal Acquisition Regulation (FAR) and use more flexible OT authority to enter into contracts. Thus far, the majority of this interest has centered on DoD’s OT authority to enter into prototype projects, now codified at 10 U.S.C. § 2371b.

One of the most powerful features of DoD’s prototype OT authority is that DoD may award a sole source follow-on production contract for a successful prototype. Congress included some limitations on this authority to award sole source follow-on production contracts at 10 U.S.C. § 2371b(f). For example, in its decision in Oracle America, Inc., GAO confirmed that DoD must comply with all notice and other specific preconditions at the prototyping stage in order to award a sole source follow-on production contract.

However, prototype OT authority is not DoD’s only authority to award sole source contracts. The Competition in Contracting Act (CICA) itself allows for sole source awards in certain circumstances. In DRS Sustainment Systems, GAO held that DoD need not comply with 10 U.S.C. § 2371b(f) to award a sole source production contract where DoD invokes one of CICA’s exceptions to separately justify the sole source award. In addition, under 10 U.S.C. § 2373, DoD has authority to make sole source purchases for items it “considers necessary for experimental or test purposes in the development of the best supplies that are needed for the national defense.”

In Air Tractor, GAO held that DoD properly relied on its “experimental purchasing” authority under 10 U.S.C. § 2373 to purchase a set of full production light attack aircraft for use in “experiments” to determine the best use of such planes in combat support. GAO found that this purchase was acceptable because it met the requirements of § 2373 alone, regardless of the Air Force’s initial use of its § 2371b prototype OT authority to compare various candidate aircraft. GAO confirmed that while it will exercise jurisdiction to ensure agency compliance with various statutory authorities to award non-procurement contracts, GAO will not impose requirements beyond those stated in the statutes. In upholding the Air Force’s acquisition strategy, the Air Tractor decision provides valuable insight as to the broad scope of § 2373 “experimental purchasing” authority.

Keep reading this article at: http://www.mondaq.com/unitedstates/Government-Public-Sector/895672/GAO-Declines-To-Limit-DoD39s-Experimental-Purchasing-Authority

January 31, 2020 By cs

Army cancels $45-billion armored vehicle contest that drew one bid

The U.S. Army says it will reevaluate its effort to replace the Bradley Fighting Vehicle after just one company submitted a qualifying bid in the $45-billion contest.

**M2 Bradley Fighting Vehicle** (photo courtesy U.S. Army)

“Based on feedback and proposals received from industry, the Army has determined it is necessary to revisit the requirements, acquisition strategy and schedule before moving forward,” the Army said in a recently released statement.

The statement did not mention that only General Dynamics submitted an eligible bid. The Army disqualified a Raytheon-Rheinmetall team because it was unable to get its German-made Lynx fighting vehicle to the United States by Oct. 1. SAIC and Bradley-maker BAE Systems did not submit bids.

**The U.S. Army Futures Command is the Army command focused on modernization.**

Thursday’s decision is a setback for Army Futures Command, founded in 2018 to lead the modernization of the service’s weapons. But the Army did live up to Secretary Ryan McCarthy’s edict: “If you fail, we’d like you to fail early and fail cheap.”

After several failed attempts to buy new combat vehicles, the Army tried to fast-track the Bradley replacement, which it calls the Optionally Manned Fighting Vehicle. But the speed helped contribute to its demise.

Keep reading this article at: https://www.defenseone.com/business/2020/01/army-cancels-45b-armored-vehicle-contest-drew-one-bid/162504/

January 24, 2020 By cs

Leaning forward into the new year

In this article, originally published in the Jan.-Feb. 2020 issue of Defense Acquisition magazine, Under Secretary of Defense for Acquisition & Sustainment Ellen Lord talks about her reorganized department’s quest to use innovative techniques to expeditiously and cost-effectively deliver the goods and services needed by U.S. warfighters.

A new year has begun for our team. We continue using the momentum built thus far to propel us forward. Take a look at where we have come from. On Feb. 1, 2018, we stood up the new Acquisition and Sustainment (A&S) organization as mandated by Congress — and on Sept. 4, 2018, we had our first official day as a reorganized department. Of course, we used this opportunity to better shape our organization and acquisition system to meet the demands of the 21st century. Even while leadership has changed, our mission endures: Enable the Delivery and Sustainment of Secure and Resilient Capabilities to the Warfighter and Internal Partners Quickly and Cost Effectively. Our National Defense Strategy was instrumental as we built departmental norms and strategy.

A&S employees at all levels are driving the organization forward together, full speed ahead with several significant projects.

Adaptive Acquisition Framework

For starters, the Adaptive Acquisition Framework has been introduced, along with a rewrite of what had become a cumbersome document, the Department of Defense (DoD) Instruction 5000 Series. This way forward removes a longstanding system of bureaucracy and red tape by turning the procurement process into one that empowers users to be creative decision makers and problem solvers. The acquisition workforce will choose between a set of established pathways and timelines — specifically designed for a diversity of purchases — requiring different levels of urgency. Using the new policy, acquisition professionals will be given autonomy, within legal parameters, to churn up tailored solutions. All of these revisions should allow for DoD partnerships with commercial industry in real time, enabling the DoD to keep products up to date with emerging technologies, and delivering capabilities “at the speed of relevance.”

Program Sustainment

Improving program sustainment outcomes for the F-35 fighter jet is another top priority for A&S. Developed to replace multiple U.S. fighter jets with a platform that maximizes commonality, and therefore economies of scale, the DoD has fielded three configurations to satisfy United States Air Force, United States Marine Corps, United States Navy and multiple international partners’ tactical aircraft requirements. A&S is dedicated to achieving the DoD’s aim for an 80 percent mission capability rating by defining performance imperatives, metrics, establishing detailed success elements and applying commercial best practices. These efforts help ensure a ready and affordable fleet of fifth-generation fighters critical to preserving air dominance both for the United States and our allied partners in this era of strategic competition.

Software Development

Like anywhere else, DoD systems are enabled by hardware but are defined by the software used. With the technology industry innovating quickly, the DoD must figure out how to keep up with fast moving software development and life cycles. By engaging Agile and DevOps methods for more iterative processing, end users will be involved earlier and more often, enabling continuous integration and helping the DoD meet its goal to develop and sustain software simultaneously. Based on recommendations by the Defense Innovation Board, a new software acquisition policy of approaching the challenge from the business side is being finalized to allow for these more rapid techniques. Pilot programs are rolling out to define corresponding procedures even further. Along these lines, the DoD has asked Congress to specifically appropriate money for defense software and is awaiting budget review and National Defense Authorization Act spending decisions.

Cybersecurity

The Cyber Security Maturity Model Certification (CMMC) was developed (using the best industry standards) to ensure the cyber hygiene of the Defense Industrial Base is complete and protects critical information in the DoD. As part of the CMMC, a consortium of unbiased parties will oversee the training, quality and administration of a third party that will certify that industrial base partners uphold accepted standards. This effort was spearheaded by our Acquisition team in working to roll out version 0.6 of the model by November 2019 and version 1.0 by the first of this year. The consortium is to begin training and accreditation of certifiers with certification beginning by June. Contracts will be required to include this certification in their evaluation criteria, beginning this October.

Chemicals

Chemical agents Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) are part of a larger chemical class known as Per- and Polyfluoroalkyl substances (PFAS). Following a health advisory issued by the Environmental Protection Agency that warned against PFAS chemicals in drinking water, studies discovered the presence of the harmful agents in many industrial and consumer products, including nonstick cookware and microwave popcorn bags.

In DoD applications, the chemicals have been found in firefighting foam used to rapidly extinguish fuel fires. Although successful in protecting against catastrophic loss of life and property, it is now known that the release of PFAS can potentially contaminate private wells and public water systems. A national committee and a task force were established to provide an aggressive, holistic approach to find and fund an effective substitute for firefighting foam without PFAS, develop and implement cleanup standards, make lasting policy change, and coordinate across federal agencies. The DoD discontinued land-based use of the firefighting foam in training, testing and maintenance. Now, when the foam is used in emergencies to save lives, releases are treated as a chemical spill. Affected soil is contained and removed, to ensure that no additional PFAS pollute the groundwater. The DoD has identified 36 drinking water systems containing unsafe PFOS and PFOA — some of those systems are servicing military installations and surrounding communities. In an effort to protect these areas, A&S is using investigative data to prioritize the U.S. Government’s actions in appropriately addressing drinking water issues caused by DoD activities.

Alignment

Going forward, the A&S organization will continue aligning itself to support the DoD’s top priorities. These projects, and many others, are critical pieces that fit together into the much larger goals of defending the country and arming the Warfighter.

Source: https://www.dau.edu/library/defense-atl/DATLFiles/Jan-Feb2020/DEFACQ%20Jan-Feb%202020.pdf

January 13, 2020 By cs

3 must-read acquisition provisions in the 2020 NDAA

After a long Congressional conference period the 2020 Defense Authorization Act (NDAA) was finally signed into law, and with it come some changes to the defense acquisition process.

Federal News Network compiled three provisions that are particularly interesting regarding the procurement of military weapons.

These provisions involve intellectual property, middle-tier acquisition, and the establishment of a Defense Civilian Training Corps, and are summarized here:

The 2020 NDAA gives DoD more leeway in experimenting with that policy by creating a pilot program on intellectual property evaluation.
The middle-tier acquisition method allows for rapid prototyping and fielding within five years, as long as certain criteria are met.
The Defense Civilian Training Corps will train civilians for public service in the Department of Defense.

Read the complete Federal News Network article at: https://federalnewsnetwork.com/defense-main/2019/12/three-must-read-acquisition-provisions-in-the-2020-ndaa/

November 19, 2019 By cs

Frictionless federal acquisition? — It’s possible and a new online tool can help

One of the best questions that came up at the recent 2019 Imagine Nation ELC conference in Philadelphia, Pennsylvania was during a panel on acquisition. It went something like this: If the Federal Acquisition Regulations are a Frankenstein monster of cobbled together rules and requirements, why not just start over?

A question many federal acquisition and program managers probably have asked themselves at least a dozen times a year.

While the 2,000 page FAR probably has some body parts that agencies could do without, there is no reason to kill the monster.

Meagan Metzger, founder and CEO of Dcode, which promotes the use of commercial technology in the public sector, said there are important concepts that the FAR promotes that every contracting officer or program manager needs to know.

Chris Hamm, the director of FEDSIM at the General Services Administration, offered a common refrain—the FAR lets you do almost anything, especially under Parts 8.4 and 12.

Then why are agencies and vendors alike so excited about Other Transaction Authorities (OTAs) or Commercial Solution Openings (CSOs) as a way to avoid—get around—using the FAR?

New data from the Professional Services Council’s 2019 Vision Forecast found the Defense Department’s use of OTA’s mushroomed by 40% in 2018 over 2017 and some estimates say the Pentagon could spend as much as $7 billion through this approach in 2019.

GSA and the Department of Homeland Security also have begun using similar authorities.

GSA, for instance, has done eight awards under its CSO authority. Tom Howder, the acting deputy commissioner of the Federal Acquisition Service, said at the PSC event that 75% of the awards went to companies without a GSA schedule, meaning non-traditional contractors.

Keep reading this article at: https://federalnewsnetwork.com/reporters-notebook-jason-miller/2019/11/frictionless-federal-acquisition-its-possible-and-a-new-online-tool-can-help/