Procurement Lawyer

News from the Committees

by Herman D. Levy

Summary of Minutes: Commercial Products and Services Committee, First Quarter 2019, December 13, 2018

Lt. Col. Sam Kidd, General Counsel and Professional Staff of the Section 809 Panel, discussed how the Panel’s recommendation to create a category of goods and services entitled “Readily Available” will impact COTS and “Commercial Products and Services.”

He began by discussing the Panel’s statutory authority. Section 809 of FY NDAA directed DoD to establish an independent advisory panel on streamlining and simplifying acquisition regulations. He then turned to the John S. McCain 2019 NDAA, starting with Sec. 801, Framework for New Part V of Subtitle A, which organized structure for all acquisition related to provisions of Title 10, restored parallelism with Title 41, and eliminated or codified “notes.” Then he discussed provisions derived from the Sec. 809 Panel’s recommendations:

  1. Interim and Vol. 1 reports
  2. Vols. 2 & 3 reports
  3. Sec. 836 — Revision of Definition of Commercial Item for Purposes of Federal Acquisition Statutes — separate definitions for commercial products and commercial services and consistent definitions in Titles 10 and 41
  4. Sec. 837 — Limitations on Applicability to DoD Commercial Contracts of Certain Provisions of Law and Certain Executive Orders and Regulations
  5. Sec. 839 — Review FAR Related to Commercial Buying — Additional Commercial Buying Work — Simplify Simplified Acquisition Procedure – Cost Accounting Standards Recommendations; Audit and Compliance Recommendations.

Col. Kidd then showed charts on Work Arounds, Vision for Transforming Defense Acquisition, Center for a New American Security Concept of What/ How DoD Buys. and GAO Concept of What/ How DoD Buys. He also discussed “A Future without Commercial,” using the concepts and terminology recommended by the Panel and related matters: Readily Available, Readily Available with Customization, Defense Unique Development, Readily Available Procedures, Leverage Market-Based Competition, Buy the Way Others Buy, Reports, Pod Casts, and More.

Minutes of the Commercial Products and Services Committee, January 10, 2019

Co-chair Sam Knowles introduced guest speakers Sara Kasper, in-house counsel at Palantir Technologies, and Amir Tayrani, a partner at Gibson Dunn. Amir successfully represented Palantir before the Federal Circuit in opposition to the Army’s appeal of the Court of Federal Claims’ seminal 2016 decision that underscored the Government’s obligation under FASA to consider commercially available solutions to meet its requirements.

The case involved the Army’s Distributed Common Ground System (DCGS), increment 2, a platform that processes data and disseminates intelligence, surveillance, and reconnaissance information to the field. Sara said that Palantir’s commercial intelligence platform had found application, among other places, in the petroleum world. A study found that the Army and DoD had a mindset for a contractor to start from scratch, including the use of such contractor compliance systems as cost accounting not used by commercial item contractors. Judge Marian Horn of the Court of Federal Claims issued a permanent injunction prohibiting the Army from making an award until it “properly and sincerely” complied with its obligations under FASA; the Federal Circuit affirmed. The Government did not file a petition for certiorari.

Minutes of the Commercial Products and Services Committee, February 14, 2019

John Howell introduced guest speaker Stephanie Shutt, Director of the Multiple Award Schedule Program Management Office at GSA. She has been with GSA for over 14 years, having started her career as an industrial operations analyst. On November 27, 2018, GSA announced that it would be consolidating the 24 different MASs into a single schedule for both products and services. She proceeded to discuss the three-phase approach GSA is taking to accomplish this consolidation.

Phase One, Develop the New Schedule, involves creation of a new solicitation for the single schedule and is to be accomplished in FY 2019. Phase Two is mass modification for all existing schedule contract holders to update terms and conditions. Along with Phase Three, it is to be accomplished in FY 2020. Phase Three consolidates multiple contracts into a single contract for those contractors.

Stephanie then provided websites: interact.gsa.gov for interact (Search MAS group; advance notices of MAS modification or refreshes to the solicitation; and a Comment feature to enable offerors to ask additional questions); vsc.gsa.gov for the Vendor Support Center (updates and information and an administrative section), and also an e-mail address (maspmo@gsa.gov) for inquiries.

A question and answer period followed.