The Government Accountability Office (GAO) recently issued a bid protest decision regarding the application of the Berry Amendment’s domestic sourcing requirement to a U.S. Department of Defense (DoD) solicitation for leather combat gloves with touchscreen capability.
In that decision, the GAO found that the nonavailability exception to the Berry Amendment applied to the glove’s kidskin leather even though the agency determined, through market research, that this type of leather was available domestically. Importantly, this decision provides an opportunity for stakeholders to consider the nuances associated with the Berry Amendment’s nonavailability exception and to reflect upon the complex regulatory landscape of domestic sourcing requirements.
Federal Government Domestic Sourcing Regimes and the Nonavailability Exception
Over the last 100 years, the U.S. government has enacted myriad domestic sourcing laws. For example, during the Great Depression, Congress enacted the Buy American Act (BAA) to “create jobs for American workers and protect American industry” by requiring the U.S. government, under certain circumstances, to procure items that have been mined, produced or manufactured in the United States. As implemented through the Federal Acquisition Regulation (FAR) and agency supplemental regulations, like the Defense Federal Acquisition Regulation Supplement (DFARS), the BAA generally requires executive agencies to purchase “domestic end products” unless an exception or waiver applies.
Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/01/domestic-sourcing-requirement-doesnt-fit-dods-gloves/
The course focuses on government contracting issues unique to the construction field. Topics include: acquisition planning, contract performance management, funding, environmental concerns, construction contract language, construction contracting in a commercial setting, the Construction Wage Rate Requirements statute (formerly known as the Davis-Bacon Act), the design/build strategy, schedule delay analysis, constructive changes, acceleration, construction contract quality management, and much more.
In an LPTA procurement, the Government evaluates proposals for mere technical acceptability under the solicitation’s stated evaluation criteria. Of the technically acceptable proposals received from eligible offerors, the Government then awards the contract to the lowest-price proposal, without considering any additional value that more expensive proposals may provide. In an LPTA acquisition, it does not matter that the second least expensive proposal may have three times more technical merit than the lowest-price technically acceptable proposal. Even if that technically superior proposal is only a dime more expensive, the Government is required to make the award to the acceptable proposal that is ten cents cheaper.
One key reform will be creating more commonality in intellectual property policies, Undersecretary of Defense for Acquisition and Sustainment Ellen Lord said. Rules and requirements surrounding IP have long been a major concern for contractors that worry that doing business with the government will harm them if they lose control over their secret sauce.
The proposed rule, open to comment until Feb. 4, 2019 would be implemented in the Defense Acquisition Regulation Supplement (DFARS), and is based on both the 2017 and 2018 National Defense Authorization Acts (NDAAs), which include language to define when LPTA is to be used.
