• The FY 2016 National Defense Authorization Act’s Substantial Impact On Federal Procurement—Part II
  • February 5, 2016 | Authors: Elana Broitman; Melissa P. Prusock; Michael J. Schaengold
  • Law Firms: Greenberg Traurig, LLP - New York Office ; Greenberg Traurig, LLP - Washington Office
  • The National Defense Authorization Act for Fiscal Year 2016 (S. 1356), signed into law Nov. 25, 2015, includes major procurement-related reforms. See P.L. 114-92. Most (but not all) of the procurement related provisions are included, as usual, in Title VIII—Acquisition Policy, Acquisition Management, and Related Matters. Title VIII includes 77 provisions specifically addressing procurement issues, which is substantially more than other recent NDAA legislation. Because of the volume and importance of the procurement changes in the FY 2016 NDAA, this FEATURE COMMENT is divided into two parts. Part I of this FEATURE COMMENT addressed NDAA §§ 801-855. See 58 GC ¶ 20. Part II addresses §§ 856-1645.

    Section 856: Limitation on Conversion of Procurements from Commercial Acquisition Procedures—The provision requires that, prior to converting a Federal Acquisition Regulation pt. 12 commercial items procurement over $1 million to a non-commercial acquisition (under FAR pt. 15), the contracting officer must make a written determination that the earlier use of commercial acquisition procedures was in error or based on inadequate information, and that the Department of Defense will realize a cost savings from switching to FAR pt. 15. For procurements over $100 million, a contract may not be awarded pursuant to such conversion until the head of the contracting activity approves the written determination described above and provides the determination to the office of the undersecretary of defense for acquisition, technology, and logistics (AT&L). This provision is closely related to § 851. Within 180 days of the FY 2016 NDAA’s enactment, DOD “shall develop procedures to track conversions of future contracts and subcontracts for improved analysis and reporting and shall revise the [Defense FAR Supplement] to reflect the” § 856 requirements. Within one year of the FY 2016 NDAA’s enactment, “the Secretary of Defense shall submit to the congressional defense committees a report on the implementation of” these requirements, “including any procurements converted as described” therein. The requirements of this section “shall terminate” Nov. 25, 2020.

    Section 857: Treatment of Goods and Services Provided by Nontraditional Defense Contractors as Commercial Items—The section authorizes DOD to treat certain items and services provided by nontraditional defense contractors (as defined by 10 USCA § 2302(9)) as commercial items, which will allow for the use of streamlined acquisition procedures and reduce burdens to, e.g., provide detailed cost and pricing data.