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July 20, 2016 By AMK

DoD finally issues proposed rule addressing 2012 NDAA changes to technical data rights

On June 16, 2016, the Department of Defense (DoD) issued a proposed rule to implement Section 815 of the National Defense Authorization Act for Fiscal Year 2012, which was originally enacted in December 2011.

Under the proposed rule, DoD would be given additional flexibility to release technical data or computer software to third parties (including competitors) if the data qualify as “segregation or reintegration” data. Although the data would include limited-rights data or restricted-rights software, the recipient would be permitted to use the data or software only for segregation or reintegration, and must destroy the data or software at the “completion of authorized activities.”

The rule also permits, among other changes, the DoD to require delivery, without any time limits, of various technical data and software that either have been generated or merely “utilized” in the performance of a contract.

Four years in the making, this proposed rule attempts to implement and clarify statutory changes introduced in section 815 of the National Defense Authorization Act (NDAA) for Fiscal Year 2012.

Despite the attempt to clarify, the proposed regulations still leave open significant questions for contractors with respect to technical data rights.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/07/6862/

March 3, 2016 By AMK

DoD proposes DFARS amendment to create awareness of contractors’ independent R&D

The Department of Defense (DoD) is proposing to amend to the Defense Federal Acquisition Regulation Supplement (DFARS) such that defense contractors will be required to give notice of proposed Independent Research and Development (IR&D) projects.

In a Federal Register notice published on Feb. 16, 2016, DoD explained that proposed rule aims to increase awareness of the relevance of and potential interest by the military in opportunities created by IR&D investments.

According to the notice, the government treats investments made by defense companies as allowable costs. If adopted, the rule will require Defense contractors to inform DoD staff of the outcomes of completed IR&D projects. “The objective of this engagement is to ensure that both IR&D performers and their potential DoD customers have sufficient awareness of each other’s efforts and to provide industry with some feedback on the relevance of proposed and completed IR&D work,” according to the proposed rule.

Industry comments on the proposed rule are due Apr. 18, 2016. Comments may be submitted via the Federal eRulemaking portal by entering “DFARS Case 2016-D002” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2016-D002.” Follow the instructions provided at the “Submit a Comment” screen.

January 19, 2016 By AMK

Proposed DFARS amendment would augment multi-year contract oversight

A proposed rule issued by the Defense Department would allow Congress to put DoD’s multi-year contracts on a shorter leash.

The proposal, which the Federal Register published Dec. 30, 2015 seeks to amend the Defense Federal Acquisition Regulation Supplement (DFARS) and implement a requirement under the 2015 National Defense Authorization Act (NDAA).

The proposal would require Congressional defense committees to be notified 30 days before a multi-year contract is terminated.

The NDAA also requires the DFARS to clarify that a multi-year contract can’t be entered into unless the Secretary of Defense certifies in writing no later than 30 days before the contract’s award that it meets certain requirements.

Keep reading this article at: http://www.fiercegovernmentit.com/story/proposed-dfars-amendment-would-augment-multi-year-contract-oversight/2016-01-06

See the proposed rule in the Federal Register at: https://www.federalregister.gov/articles/2015/12/30/2015-32873/defense-federal-acquisition-regulation-supplement-multiyear-contract-requirements-dfars-case

December 4, 2015 By AMK

Defense authorization bill addresses DCAA audit backlog

To address the DoD contract audit backlog, Congress is proposing that DCAA discontinue support of other federal agencies.

The proposed Section 893 of the National Defense Authorization Act (NDAA) states that “[e]ffective on the date of the enactment of this Act, the Defense Contract Audit Agency (DCAA) may not provide audit support for non-Defense Agencies unless the Secretary of Defense certifies that the backlog for incurred cost audits is less than 18 months of incurred cost inventory.”

The DCAA, despite its name, has for decades provided audit support services for civilian agency contracts and contractors and has been compensated for those services through various arrangements by those agencies. In testimony before a House committee in December 2014, the director of the DCAA estimated that approximately 10 percent of DCAA’s work was on behalf of non-defense agencies.

As a result of this provision, the DCAA will theoretically have more resources available to focus on Department of Defense (DoD) contractors, contracts and proposals. This may mean an increase in audit activity for companies contracting primarily with DoD as the DCAA resources are refocused. But for contractors doing significant business with civilian agencies, the opposite could be true. Those contractors are likely to see a quick drop-off in audit activity, at least until the civilian agencies develop a workaround (likely an increase in outsourced third-party audit support) and may see a slowdown in awards of cost-type contracts to the extent that proposal audits become less timely. As written, the provision takes effect immediately upon enactment and does not contain any exception by which DCAA can continue work on a non-Defense agency audit – even audits already in process prior to enactment of the statute.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=446424

August 18, 2015 By AMK

New DFARS proposed rule on commercial items acquisition and subcontracting: An end run on Congress?

On Monday, August 3, 2015, the Department of Defense (DoD) issued a long-awaited proposed rule that could have a significant impact on how the DoD and prime contractors procure commercial items.

The Proposed Rule is said to merely implement Section 831(a) of the Fiscal Year 2013 National Defense Authorization Act (NDAA), but goes much further, proposing significant substantive changes to what qualifies as a “commercial item” under DoD-funded contracts and imposing significant burdens on prime contractors to gather data from their commercial item subcontractors.

Section 831 directed DoD to, among other things, issue guidance including “standards for determining whether information on the prices at which the same or similar items have previously been sold is adequate for evaluating the reasonableness of prices.” Section 831 was, in part, a response to DoD’s recent efforts to narrow the broad commercial item paradigm created by Congress in the 1990s, including a 2012 DoD legislative proposal to change the statutory and regulatory definition of “commercial item.”

Specifically, DoD requested legislation to grant DoD greater access to cost or pricing data associated with commercial items and sought to change the definition of commercial items to exclude items that are merely “offered for sale” or “of a type” offered for sale in the marketplace. Congress declined to make those changes, recognizing the Federal Acquisition Streamlining Act (FASA) purposefully includes a broad definition of commercial items in order to ensure that the federal government has access to products available in the commercial marketplace.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=419112

On June 16, 2016, the Department of Defense (DoD) issued a proposed rule to implement Section 815 of the National Defense Authorization Act for Fiscal Year 2012, which was originally enacted in December 2011.

The Department of Defense (DoD) is proposing to amend to the Defense Federal Acquisition Regulation Supplement (DFARS) such that defense contractors will be required to give notice of proposed Independent Research and Development (IR&D) projects.

A proposed rule issued by the Defense Department would allow Congress to put DoD’s multi-year contracts on a shorter leash.

To address the DoD contract audit backlog, Congress is proposing that DCAA discontinue support of other federal agencies.

On Monday, August 3, 2015, the Department of Defense (DoD) issued a long-awaited proposed rule that could have a significant impact on how the DoD and prime contractors procure commercial items.

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