May 15, 2020 Procurement Lawyer

News from the Committees

by Herman Levy

Summary of Minutes, Commercial Products and Services Committee, December 2019 – January 2020

December 12, 2019

The meeting was held jointly with the Cybersecurity, Privacy, and Data Protection Committee. John Howell introduced guest speakers Mary Beth Bosco and Norma Krayem, Holland & Knight LLP. Mary Beth was a co-chair of the ABA Cybersecurity, Privacy, and Data Protection Committee; Norma was the global chair of the Cybersecurity and Privacy Team at Holland & Knight. Both worked on a daily basis on these issues. They discussed how the government is moving forward on these and other supply chain prohibitions.

They discussed how Section 889 of the FY2019 John S. McCain National Defense Authorization Act (NDAA) is being implemented. The section bars the government from, inter alia, procuring telecommunication equipment produced by Huawei Technologies Company and many other companies deemed risky to U.S. national security. Ultimately, it is expected that the prohibitions will be expanded to the entire supply chain, which would be very challenging for commercial item contractors.

January 9, 2020

Co-chair Sam Knowles introduced guest speaker Kori Marietta, West Commercial Item Group (CIG), DCMA. She managed the CIG offices in Indianapolis, Denver, and Phoenix. The CIG is focused on providing acquisition insight for the integration of commercial products and services within DoD to streamline procurements and ensure that warfighters receive cutting-edge technology at reasonable prices. Kori’s goal is to help communicate the vision of the CIG and support commercial contracting efforts to speed up the acquisition process.

Kori started with statements from several government officials stating “Leadership Need for Speed.” She then proceeded with a walk-through of national defense authorization acts (NDAAs) regarding commercial acquisition, beginning in 2013. Particularly, she noted the 2016 NDAA, which among other things restricted the PCO’s ability to change a commercial decision and the HCA’s ability to overturn it. Then she illustrated the acquisition thought process: identified need, availability of commercial items, and ability to modify a commercial item to fit the requirements or modify the requirements to fit a commercial item. Then she focused on market research, including a reference to the recent Palamir decision. Kori then discussed the commercial acquisition toolbox. First, she gave examples of commercial item determinations (CIDs), noting that they may not be suitable for all situations. She concluded with CIG support-CIDs, price support services, CPSR, and other support/mentoring for government agencies, e.g., labor rates.