Updated Department of Defense Instruction

Assuming that, if you are reading this post, you are (or wish to be) doing business with the Department of Defense (DoD), you might not be aware that DoD updated its Instruction (DoDI) 5000.02 which covers the Operation of the Defense Acquisition System back in February. This LINK will get you to the 188 page “red lined” document which describes the acquisition process from initial capabilities (what DoD needs or wants), through funding , and the various acquisition models, e.g., “hardware intensive,” or “incrementally deployed software intensive programs.”

This is a good resource for those who need the current DoD guidance, and while it is specifically designed for DoD components, there is much that you might find useful as you pursue federal Government opportunities in general. Please contact us if we can help you navigate the federal acquisition and post-acquisition waters.

F&A to attend AUSA Global Force Symposium

Vic Ferlise, Mike Ferlise and Frank Faraci will be attending AUSA’s Global Force Symposium and Exposition in Huntsville, Alabama.

The 2017 AUSA Global Force Symposium & Exposition is a three-day event that will include presentations from the United States Army Materiel Command, the United States Army Training and Doctrine Command, and the Office of the Assistant Secretary of the Army (Acquisition, Logistics and Technology).

This symposium will explore the capabilities outlined in the Army Operating Concept and how the force transforms from being adaptive to driving innovation for Force 2025 and beyond.

For more information please click the link below:

AUSA Global Force

F&A attending Government Contracts Year-in-Review

Mike Ferlise and Vince Buonocore will be attending the upcoming Thomson Reuters “Government Contracts Year-in-Review” conference in Washing, DC from February 14th through the 16th.  This event will provide high-level, expert briefings on the past year’s legal developments affecting government contracts.

R.I.P. LPTA

The National Defense Authorization Act for Fiscal Year 2017 has imposed significant restrictions on, and preconditions for the use of, the Lowest Price Technically Acceptable (LPTA) Basis for Award. LPTA has been increasingly employed by organizations within the Department of Defense (DoD) in a wide array of acquisitions based upon the relative speed with which such acquisitions can be completed and the minimal protest risk attributable to that approach regardless of the appropriateness or applicability of the LPTA Basis for Award to the objectives and structure of those acquisitions. This change, which must be implemented in the Defense Federal Acquisition Regulation Supplement (DFARS) within the next four months, should substantially limit DoD’s reliance upon LPTA, and instead require DoD to more frequently employ the Best Value Trade-Off Basis for Award.

SEC 813 – Use of lowest price technically acceptable source selection process.

(a) Statement of policy.—It shall be the policy of the Department of Defense to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Department the benefits of cost and technical tradeoffs in the source selection process.

(b) Revision of defense federal acquisition regulation supplement.—Not later than 120 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, lowest price technically acceptable source selection criteria are used only in situations in which—

(1) the Department of Defense is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;

(2) the Department of Defense would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;

(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;

(4) the source selection authority has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the Department;

(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and

(6) the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support.

(c) Avoidance of use of lowest price technically acceptable source selection criteria in certain procurements.—To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—

(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services;

(2) personal protective equipment; or

(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.

(d) Reporting.—Not later than December 1, 2017, and annually thereafter for three years, the Comptroller General of the United States shall submit to the congressional defense committees a report on the number of instances in which lowest price technically acceptable source selection criteria is used for a contract exceeding $10,000,000, including an explanation of how the situations listed in subsection (b) were considered in making a determination to use lowest price technically acceptable source selection criteria.

Happy Holidays

From everyone here at Ferlise and Associates, we wish you a very Happy Holiday season and a peaceful and prosperous New Year!

F&A to attend National Veterans Small Business Engagement in Minneapolis

Victor Ferlise, Michael Ferlise and Wendy McCutcheon will be attending the upcoming  National Veterans Small Business Engagement (NVSBE) in Minneapolis.  NVSBE is the premier event for Veteran-Owned Small Businesses and Service-Disabled Veteran-Owned Small Businesses to connect with Procurement Decision Makers, program specialists, and contracting experts from the federal and commercial marketplaces.

GAO no longer has protest jurisdiction over civilian agency task order awards, at least for the time being.

Effective October 1st, task order “fair opportunity” awards by civilian agencies are not protestable, regardless of dollar value, except in very narrow circumstances. (i.e. if the task order is outside the scope of the underlying IDIQ, or exceeds its maximum ceiling or effective period. Those sort of challenges can still be made before the GAO or Court of Federal Claims.)   The statute creating GAO jurisdiction over fair opportunity task order awards in excess of $10M by civilian agencies contains a “sunset” provision that causes the jurisdiction to expire after FY ’16.  (The statute creating such jurisdiction for DoD agencies did NOT have that sunset provision, and accordingly their situation is unaffected.)

The FY 2017 National Defense Authorization Act (both the House and Senate versions) contains language that would reestablish GAO jurisdiction over such protests if they exceed $10M.  However, until the Act is effective, contractors wishing to challenge such awards made by civilian agencies will have no formal recourse.

F&A to attend AUSA 2016

Victor Ferlise and Michael Ferlise will be attending the Association of the United States Army (AUSA) Annual meeting in Washington, D.C.

Held every October, the AUSA Annual Meeting & Exposition is the largest land power exposition and professional development forum in North America. This event consists of informative and relevant presentations, panel discussions on pertinent military and national security subjects, workshops and important AUSA business meetings.

If you are interested in attending please click HERE to register.

Former VA TAC Chief Counsel joins F&A

We are pleased to announce that, on September 1st, Vincent Buonocore, Esq. joined the team!

Vince comes to us from the Department of Veterans Affairs (VA) where he served as the Senior Information Technology Procurement Counsel, co-located with the Technology Acquisition Center (TAC). In that capacity, he supervised a staff of 18 attorneys located in Eatontown, NJ and Austin, TX, supporting all IT related programs within the agency. He personally acted as counsel on all major VA IT acquisitions from 2010 through his retirement from Federal Service in August 2016 including the multi-billion dollar “Total Technology Transformation Twenty-One” (T4) and T4 Next Generation procurements. Under his supervision, the TAC obtained favorable outcomes in more than 70 Government Accountability Office (GAO) or Court of Federal Claims protests, while successfully awarding approximately $20B in contracts, earning him the Department’s Exemplary Service Award earlier this year.

Prior to joining VA, Vince served 26 years with the Department of the Army, first as a commissioned Judge Advocate Officer, then as a civilian contracts attorney with the U.S. Army CECOM, Fort Monmouth, NJ.  From 2009 to 2010, he served as Acting CECOM Chief Counsel, managing the practice of 60 CECOM attorneys and Patent Advisors across four geographic locations, and served as the final authority on all legal matters pertaining to CECOM and other resident activities, to include acquisition and litigation strategies. The office supported an Army IT research, development and acquisition activity, comprised of over 5,000 personnel, which sustained more than half of the Army’s fielded inventory, and awarded over $19B in any given fiscal year. The practice included major complex pre- and post-award contractual matters, including formal best value source selections, GAO protests, Board or Contract Appeals/Federal Court litigation, environmental, ethics, fiscal, intellectual property, public sector Labor/EEO, Freedom of Information/Privacy Act, and operational and administrative law.  During his tenure, Vince managed every aspect of office operations, and served as counsel to the Source Selection Authority (SSA) on all major source selections being conducted by the Command; the senior Command Ethics Advisor; and Initial Denial Authority on all Freedom of Information Act requests.

Prior to his assignment as Acting Chief Counsel, Vince served as Deputy to the Chief Counsel, and was responsible for all aspects of the Command’s involvement in Homeland Security, in particular, mechanisms for assisting non-Federal anti­terrorism efforts including crafting guidance for the Office of Federal Procurement Policy that would permit non-Federal authorities to utilize Department of Defense contracts to acquire anti­terrorism technologies. He assisted in fashioning cooperative research and development agreements with non-Federal authorities, including the State of New Jersey and Port Authority of New York/New Jersey, to facilitate exporting communications-electronics technology in support of such efforts. Further, during his Army tenure, Vince provided comprehensive legal support to the Army’s Night Vision Laboratory, Counter Mine, and Mobile Electric Power operations.

During his Army career, Vince was honored with numerous awards, including the Army Decoration for Meritorious Civilian Service, the Meritorious Service Medal, Army Commendation Medal and being named Army Materiel Command’s Joyce I. Allen Attorney of the Year (2001) and Francis J. Buckley, Jr. Manager of the Year (2008).

Vince was commissioned a 1st Lieutenant upon his graduation from the United States Army Judge Advocate General’s School in 1984. He earned his BA in History/Political Science from Fordham University in 1979 and his JD from the Maurice A. Deane School of Law at Hofstra University in 1982. His articles on Procurement Fraud and Board of Contract Appeals practice have appeared in The Army Lawyer. He was admitted to practice before the United States Supreme Court in 2011.

Welcome aboard Vince!

SBA publishes instructions regarding the new “universal” Mentor-Protégé Program

How to Apply

Applicants are required to register in the System for Award Management (SAM) prior to creating their profile in certify.sba.gov.  Applicants (both prospective Protégés and Mentors) will be required to complete an online training module as part of the application process, and to upload a certificate of completion to certify.sba.gov before they are allowed to complete the application process.

The application itself will be entirely electronic, and will require that certain documents – certificate of completion for the online training module, signed Mentor-Protégé agreement(s), size determination letters, and other documents – be uploaded to certify.sba.gov, or completed in narrative form within that web portal. Although Mentors are not required to provide financial statements and tax returns during the application process, the SBA retains the right to request such documentation during the reporting and evaluation processes.

Dates to watch

The SBA will begin accepting applications for the All Small Mentor Protégé Program on October 1, 2016.

The application, approval and monitoring process will be centralized in the SBA’s HQ office in Washington, D.C.  Applications from prospective participants will only be accepted using the new online application through certify.sba.gov.   Any application received prior to October 1, 2016, or received in any other format other than through the certify.sba.gov web portal will not be considered.