competition | 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

March 3, 2020 By cs

Overstock.com protest could delay GSA commercial e-marketplace pilots until April or beyond

The General Services Administration (GSA) recently responded to an Overstock.com protest of the agency’s commercial e-marketplace solicitation, which could delay pilots until April — assuming revisions aren’t ordered.

Overstock filed its pre-award bid protest with the Government Accountability Office on Jan. 15 arguing some of the solicitation’s terms are ambiguous and restrict competition. The internet retailer further argued GSA didn’t allow sufficient time for companies to respond, according to a person with knowledge of the situation.

Overstock had until Feb. 24 to respond to GSA’s agency report based on anything it learns. The protest itself is covered by a protective order limiting disclosure to lawyers for the private parties.

Section 846 of the 2018 National Defense Authorization Act directed GSA to work with nontraditional government contractors on allowing agencies to purchase up to $250,000 — the simplified acquisition threshold — in commercial items. GSA’s initial pilot will focus on e-marketplaces like Amazon or Overstock, where competition between sellers occurs at the item level.

Keep reading this article at: https://www.fedscoop.com/overstock-gsa-e-marketplace-protest/

February 27, 2020 By cs

New NDIA study gives defense industrial base health a ‘C’ grade

A new battery of tests that aims to assess the overall health of the defense industrial base over time reported a barely-passing “C” grade in the inaugural edition, issued earlier this month.

The report card — dubbed “Vital Signs” by analysts at the National Defense Industrial Association and Govini — is partly a follow-on response to a first-of-its-kind report the Pentagon issued in 2018. That assessment showed some worrisome signs about the defense industry, but was a snapshot in time. NDIA officials said policymakers need a more repeatable deep-dive to understand the key problems on an ongoing basis.

From a Wall Street perspective, the industry is in very good shape. Publicly-traded companies in the sector are profitable, and have historically-high amounts of cash on hand even though they’re spending heavily on new plants and equipment. On a scale of 0 to 100, the NDIA report scores those measures — collectively called “competition” — at 96.

But that category is only one of eight in the report, and the picture is less rosy in many of the others.

Keep reading this article at: https://federalnewsnetwork.com/defense-main/2020/02/new-ndia-study-gives-defense-industrial-base-health-a-c-grade/

January 10, 2020 By cs

After 2 years, JEDI is finally underway

The second year of competition for the Pentagon’s controversial cloud contract was as dramatic as the first.

The Pentagon’s high-profile Joint Enterprise Defense Infrastructure (JEDI) cloud contract is right back where it was one year ago: tied up in litigation.

The circumstances have changed in the past calendar year, with Microsoft winning JEDI in October and former favorite to win the contract, Amazon Web Services, protesting the decision in the U.S. Court of Federal Claims.

At best, the Defense Department and Microsoft cannot begin work until at least mid-February, putting the Pentagon more than a year behind its initial schedule for JEDI. An internal JEDI strategy document released in November 2017 sought a JEDI award in fourth quarter of 2018 and migrations to the cloud platform by the beginning of 2019.

And yet, what unfolded in 2019 was high drama in the federal contracting world over an improbably high-profile government contract.

Keep reading this article at: https://www.nextgov.com/it-modernization/2019/12/after-two-years-jedi-finally-underway/162005/

December 24, 2019 By cs

Amazon’s protest of GSA’s e-commerce platform RFP tells us why the silly season is in full swing

There may be no better indicator that the General Services Administration’s e-commerce platform solicitation is facing a host of uphill challenges than the fact that the company many believe will be the ultimate winner filed the first protest.

Federal News Network confirmed that Amazon fired the first salvo in the federal e-commerce war.

Government sources say the Seattle, Washington company submitted an agency-level, pre-award protest in November.

Sources say Amazon challenged whether GSA’s market research was sufficient, and it questioned some of the terms of the solicitation, particularly around the compliance of laws like the Competition-in-Contracting Act, the Federal Acquisition Streamlining Act and even the provision in the 2018 defense authorization bill requiring GSA to set up an e-commerce marketplace in the first place.

Keep reading this article at: https://federalnewsnetwork.com/reporters-notebook-jason-miller/2019/12/amazons-protest-of-gsas-e-commerce-platform-rfp-tells-us-why-the-silly-season-is-in-full-swing/

The General Services Administration (GSA) recently responded to an Overstock.com protest of the agency’s commercial e-marketplace solicitation, which could delay pilots until April — assuming revisions aren’t ordered.

A new battery of tests that aims to assess the overall health of the defense industrial base over time reported a barely-passing “C” grade in the inaugural edition, issued earlier this month.

The second year of competition for the Pentagon’s controversial cloud contract was as dramatic as the first.

There may be no better indicator that the General Services Administration’s e-commerce platform solicitation is facing a host of uphill challenges than the fact that the company many believe will be the ultimate winner filed the first protest.

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