January 9, 2018 Jason Bakke 0 Comments

National Defense Authorization Acts, those constitutionally required bills that authorize the defense budget (as opposed to appropriate), provide Congress with a can’t-miss opportunity to tinker with federal acquisition. 2018 is no exception. We cover some changes here.

First, in accordance with the 2017 NDAA, the GAO protest threshold for DOD task orders has gone up to $25 million, whereas for civilian agencies the task-order threshold remains $10 million. The application of the threshold follows the ordering agency, not the contract, so for example, OASIS task orders (a GSA multiple award contract for governmentwide use) valued at $11 million can be protested if they are civilian (HHS, for example), but not if they are Marine Corps. As a reminder, GSA Schedule orders of any size may still be protested, regardless of ordering agency.

DOD is getting a couple of tools to shield procurements from protest, here protest protection on small to mid-size buys, and a loser-pays-government-costs requirement to discourage protests on larger buys in the 2018 NDAA.

Additionally, the 2018 NDAA changes certain procurement dollar thresholds:

  • Micropurchase to $10K for civilian agencies (meaning no competition required)
  • Simplified acquisition threshold (Part 13) to $250K from $100K (but purchases above $25K still require synopsis, per FAR 5.101). However, FedNewsRadio reports, “For purchase between $10,000 and $250,000, the NDAA states some terms and conditions, and a requirement for competition, but it’s simplified. ‘This is a give to small business in the NDAA,’ said Styles. ‘Hopefully, having such a broad dollar range should benefit small business.’” We’ll see as regulations are promulgated.
  • TINA (requirement for certified cost or pricing data on noncommercial procurements) to $2M from $750K. Many (me) believe this should go very high, eg, $100M.

Remember, the new limitation on subcontracting clause, from the 2013 NDAA, still hasn’t made it past the FAR councils. In theory, statute trumps regulation, but as with so much in federal contracting, your mileage may vary.

NDAA updates was last modified: January 9th, 2018 by Jason Bakke

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