By: Lindsay Simmons
The Section 809 Panel has recommended some drastic changes that would impact government contractors doing business with the Department of Defense (DoD). What is the Section 809 Panel? It is a panel created in Section 809 of the FY 2016 National Defense Authorization Act (NDAA) with goals outlined in the NDAA such as: (i) reviewing DoD’s acquisition regulations with a view toward improving the efficiency and effectiveness of the defense acquisition process and maintaining defense technology advantage; (ii) creating and maintaining appropriate buyer/seller relationships in the procurement system; and (iii) protecting the best interests of DoD. Earlier this year the Panel issued 58 new recommendations for streamlining DoD’s acquisition system. Several of these recommendations focus on streamlining the acquisition and bid protest process.
Although some of the Panel’s recommendations would increase transparency, others would limit protesters’ rights. The range of recommendations includes limiting the types of protests contractors can file to requiring enhanced debriefings for disappointed offerors.
One of the most significant changes concerns how DoD buys commercial items. Specifically, recommendation 35 turns the current commercial item procurement process on its head with respect to items that are “readily available”, suggesting a purchasing threshold for readily available items of up to $15 million, and even allowing the DoD to use the readily-available item procurement procedures on procurements that exceed $15 million.
The Panel also suggests that its streamlined procedures for purchasing readily available items be extended to bid protests for such products. In this regard, the proposal limits readily-available commercial item protests to agency-level protests only. This would mean that protesters could protest readily-available procurements only at DoD and not at the Government Accountability Office (GAO) or the Court of Federal Claims (COFC). In addition, protesters would be limited in their protest grounds. A protest could challenge only (i) “the product or service that was procured using the readily available procedures was not readily available”; or (ii) “the contracting officer did not conduct market research consistent with these procedures.”
Readily-available item procurements under the $15 million threshold would not require public advertising. Instead, DoD would conduct market research, select an awardee, and post the award decision online. This procurement process, combined with the Panel’s protest recommendations, would put an end to pre-award protests where DoD uses “market research” procedures, and would severely limit what a potential protester could challenge post-award.
It will be important for defense contractors to track the progress of these suggestions.
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@ Jackson Kelly PLLC