guidance | The Contracting Education Academy

April 27, 2020 By cs

OTAs given greater flexibility to foster innovation in coronavirus response

Defense Department leaders and agencies have been granted much-needed flexibility to respond to the coronavirus pandemic.

**Click on image above to open memorandum.**

Last week, Under Secretary of Defense for Acquisition & Sustainment Ellen Lord delegated approval authority for Other Transaction Agreements (OTAs) related to the coronavirus response, consistent with Section 13006 of the CARES Act.

In an April 5 memorandum, Under Secretary Lord designated approval authorities for OTA prototype projects and follow-on production contracts and agreements as follows:

Above $100 million, and up to $500 million, to the Directors of Defense Agencies/Field Activities with contracting authority, as well as the Director of the Defense Innovation Unit. This authority was otherwise vested in the Senior Procurement Executives (SPEs) of the Military Departments, the Director of the Defense Advanced Research Projects Agency (“DARPA”), and the Director of the Missile Defense Agency (MDA).
Above $500 million, to the SPEs of the Military Departments, and the Directors of DARPA and the MDA. This authority was otherwise restricted to the Under Secretaries for Acquisition & Sustainment and Research & Engineering. Approval authority for OT prototype actions between $100 million and $500 million may now be further delegated by the SPE or Director.

In addition, in lieu of providing 30 days’ advance notice to congressional defense committees of OTAs above $500 million that are related to COVID-19, Section 13006 permits Under Secretary Lord or the Under Secretary of Defense for Research & Engineering to provide notice as soon as practicable after the OTA’s commencement.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2020/04/other-transaction-authorities-given-greater-flexibility-to-foster-innovation-in-coronavirus-response/

The Contracting Education Academy at Georgia Tech has established a webpage where all contract-related developments related to the coronavirus (COVID-19) are summarized. Find the page at: https://contractingacademy.gatech.edu/coronavirus-information-for-contracting-officers-and-contractors/

April 14, 2020 By cs

Newest DoD industry guidance clarifies repayments, makes prototyping easier

As part of its ongoing effort to bolster the defense industrial base, the Pentagon has issued two new pieces of guidance — one focused on workers, and one focused on prototype contracts.

Overall, the department has now issued 17 different actions, ranging from basic guidance for industry to memos changing how the department pays contractors, since March 5.

In an April 6 memo, acquisition head Ellen Lord changed the rules for issuing prototype contracts through other transaction authorities.

OTAs are small contracts awarded to companies of any size, in theory targeted at nontraditional defense contractors, with the purpose of conducting research or prototype efforts on a specific project; they are not subject to Federal Acquisition Regulation rules.

By comparison, SBIR contracts are targeted at small businesses in order to act as seed money for them to conduct research and development efforts; they are subject to the FAR rules.

Keep reading this article at: https://www.defensenews.com/coronavirus/2020/04/09/newest-dod-industry-guidance-clarifies-repayments-makes-prototyping-easier/

November 12, 2019 By cs

DOJ issues new guidance for treatment of confidential information under recent Supreme Court FOIA decision

Last month, the Department of Justice Office of Information Policy issued new guidance on the definition of confidential information under Exemption 4 of the Freedom of Information Act.

This new guidance addresses the meaning of “confidential” in light of the Supreme Court’s decision in Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019). While not determinative, this DOJ Guidance offers contractors critical insight into how agencies will respond in the first instance to FOIA requests for information that may be subject to Exemption 4. This exemption protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).

As noted by the Covington law firm earlier this year, in Food Marketing Institute, the Supreme Court jettisoned 40 years of established FOIA case law on how agencies defined confidential under Exemption 4. It rejected the well-established “competitive harm” test from National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974) based on the lack of support in the statutory language. In its place, it adopted a “plain language” interpretation of confidential, finding two potential definitions: (1) information “customarily kept private, or at least closely held,” by the submitting party; and (2) information disclosed when the receiving party provides “some assurance that it will remain secret.” The Supreme Court held that the first condition was mandatory but expressly left open whether confidential information could lose that status if provided to the government “without assurances that the government will keep it private.” As a result, contractors and agencies alike were left without clear guidance as to whether, or when, a government “assurance” may be required.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/11/doj-issues-new-guidance-for-treatment-of-confidential-information-under-recent-supreme-court-foia-decision/

October 18, 2019 By cs

Executive orders issued to combat ‘bureaucratic abuse’ by ‘rogue agencies’

President Donald Trump signed a pair of executive orders last week that the White House said were meant to curtail what it views as “abuses” of American citizens by federal agencies.

The orders deal with what the administration said is a federal bureaucracy that is “running roughshod” over individuals’ and companies’ legal and constitutional rights: they demand that agencies increase transparency in their regulatory and enforcement processes and reduce what the White House said is an overreliance on informal rulemaking.

Both executive orders address the Administrative Procedure Act. The administration said agencies too often use informal guidance as a work-around to the notice and comment processes the APA demands. So going forward, agencies will have to treat all guidance documents they issue, or have published before, as non-legally-binding.

Until now, the White House said, agencies have sometimes used guidance as a stand-in for formal regulations.

Keep reading this article at: https://federalnewsnetwork.com/agency-oversight/2019/10/trump-administration-issues-orders-to-combat-bureaucratic-abuse-by-rogue-agencies/

December 3, 2013 By AMK

DoD finalizing major rewrite of acquisition guidance

Pentagon officials are “very close” to finishing their work on an overhaul of the official guidebook to DoD’s byzantine acquisition system, and the process led them to the conclusion that they need Congress’ help to help unwind a cumbersome maze of laws that have been layered on through decades of well-intentioned reform efforts.

The document in question is officially known as DoD Instruction 5000.02 — the key collection of guidance that describes the military acquisition process. Frank Kendall, the undersecretary of defense for acquisition, logistics and technology, has been working on a revamped version for months.

“I’ll be out very soon,” he said Thursday at the Center for Strategic and International Studies. “It’s going to emphasize tailoring even more than previous editions did. And we show people multiple models of how you can structure an acquisition program depending upon what the product is. You know, at the end of the day, the way you structure the program to develop, produce and field the product depends on what the product is and what it takes to get that job done. There’s a logic and a flow that has to be consistent with what you’re trying to accomplish. And it’s definitely not a one-size-fits-all business. We do a large range of different types of things.”

That tailored approach to acquisition is consistent with the messages in the current Better Buying Power effort Kendall’s office has been leading in DoD, emphasizing that the department’s own professionals need to use their judgment to structure the right acquisition vehicle and contract type for the right job. The latest version came with the tagline: “A guide to help you think.”

Kendall says the rewrite of the instructions was needed, in part, because of several recent laws Congress has passed imposing new requirements on DoD acquisition managers. And reworking the document from scratch led his office to the conclusion that those recent legislative changes were just one more layer on a system that’s been growing in complexity for decades.

Keep reading this article at: http://www.federalnewsradio.com/65/3502073/DoD-finalizing-major-rewrite-of-acquisition-guidance

Defense Department leaders and agencies have been granted much-needed flexibility to respond to the coronavirus pandemic.

As part of its ongoing effort to bolster the defense industrial base, the Pentagon has issued two new pieces of guidance — one focused on workers, and one focused on prototype contracts.

Last month, the Department of Justice Office of Information Policy issued new guidance on the definition of confidential information under Exemption 4 of the Freedom of Information Act.

President Donald Trump signed a pair of executive orders last week that the White House said were meant to curtail what it views as “abuses” of American citizens by federal agencies.

Search this Website