Important New Acquisition Provisions in the 2019 NDAA

November 12, 2018

By: Eric Poppe, Senior Manager

The John S. McCain 2019 National Defense Authorization Act (“NDAA”) was signed into law on August 13, 2018. It includes several broad provisions on acquisitions and compliance for both the Department of Defense and the overall Federal government. Below are some key provisions that impact contractors.

Under Section 820, the Secretary of Defense is now required to submit a new report to congressional defense committees. This report will provide definitions of service contracts, as well as outline the policies, roles and procedures for individuals involved in the acquisition of services.

Section 822 requires the Secretary of Defense to implement a study on bid protests filed at both the Government Accountability Office (“GAO”) and the Court of Federal Claims that involve the same contract award, or proposed award. Going forward, a system can now be implemented for the purposes of collecting data and tracking analytics related to bid protests.

Section 852 aims to protect the interests of small businesses working in the government contracting market by ensuring prompt payments are being made by establishing a strict benchmark regarding the timeliness of payments. Per the newly established benchmark, Federal agencies that receive invoices from small contractors are now expected to make payments no later than 15 days after receipt of a proper invoice. Similarly, if a large business prime has subcontracts with small businesses, this section establishes a payment date of 15 days after receipt of a proper invoice if the prime agrees to make accelerated payments to its small business subcontractors.

Section 878 establishes a definition of, and plan for, measuring Procurement Administrative Lead Time (“PALT”). The Administrator for Federal Procurement Policy is now responsible for developing, commenting on, and finalizing a uniform definition of PALT for the purposes of the Federal government. PALT begins when a solicitation is issued and ends when a contract or task order is issued.

Section 880 strictly oversees the usage of the lowest price technically acceptable (“LPTA”) selection process by implementing a government-wide restriction on the use of LPTA for contracts for complex professional and IT services. In this regard, Section 880 states, “It shall be the policy of the United States Government to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process.” Further, it requires that the Federal Acquisition Regulation (“FAR”) must be amended within 120 days after the effective date of the NDAA to prohibit the use of LPTA unless criteria specified in the NDAA are met.

As the OPM backlog remains unchecked, the following reforms have been introduced with the goal of enhancing the overall efficiency of the security clearance process going forward:

  • Section 941 mandates the establishment of “a program (to be known as the ‘Trusted Information Provider Program’”) to share between and among agencies of the Federal government and industry partners of the Federal government relevant background information regarding individuals applying for and currently occupying national security positions and positions of trust, in order to ensure the Federal government maintains a trusted workforce.” Section 941 goes on to identify the minimum information that is to be collected and shared by the program.
  • Section 942 details the procedures for reporting an expedited processing of security clearances. The Director of National Intelligence is required to publish a report detailing his efficiency of, as well as providing feedback to improve, the programs in place for the purposes of expediting clearances.
  • Section 943 introduces a new report to address a report on the feasibility and advisability of implementing a clearance in person concept for maintaining access to classified information. Implementation of a clearance in person concept as described in this subsection would permit an individual who has been granted a national security clearance to maintain eligibility for access to classified information, networks and facilities after the individual has separated from service to the Federal government or transferred to a position that no longer requires access to classified information. The concept described here would also ensure that, unless the individual’s security clearance would be recognized as current, regardless of employment status, with no further need for investigation or revalidation until the individual obtains a position requiring access to classified information.

For additional information concerning the 2019 NDAA, or if you would like to discuss how these revisions would impact your entity’s acquisition management practices, please reach out to a Cherry Bekaert Government Contractor consulting representative.