Government Contracts ConneKTion

Archive for March 2017

Posted on Friday, March 31 2017 at 9:25 am by -

General Services Administration Professional Services Schedule Holders May Soon Have to Lower Prices and Face Post-Award Audits

General Services Administration Professional Services Schedule Holders May Soon Have to Lower Prices and Face Post-Award Audits by Gunjan Talati & Scott Davidson, The GCO Consulting Group

Editor’s note: From time to time we will co-author articles with industry professionals to bring you comprehensive viewpoints on a topic. Today’s co-author is Scott Davidson, Managing Principal of The GCO Consulting Group (formerly Vets GSA). The GCO Consulting Group provides GSA Schedule consulting services, audit support, and proposal writing services. You can visit their website at:

If you’ve been following the GSA for the last few years then you know the agency has been committed to reforming its Multiple Award Schedule (MAS) program. This reform included combining seven professional services schedules into a new Professional Services Schedule (PSS) back in 2015. The merger of these schedules into the PSS was aimed at reducing administrative burdens and bringing efficiency to professional services schedules. The migration was challenging for both GSA and contractors alike but when it was completed, over 700 professional services contracts had been consolidated into under 400. On March 21, 2017, the GSA Office of the Inspector General (IG) issued an audit report determining that GSA got the migration wrong. Specifically, the IG report criticized GSA for awarding PSS contracts without determining price reasonableness; missing vital information on the Pre-Negotiation and Price Negotiation Memorandum templates; and lacking details to support awarded labor category rates.

Indeed, out of the 45 contracts sampled by the IG, 44 involved situations where the contracting officer either failed to conduct a required price analysis or hold negotiations. Additionally, the IG report found fault with GSA’s “Pre and Price Negotiation Memorandum” template. Under existing GSA requirements, the agency is supposed to use distinct pre-negotiation and price negotiation templates in order to document pre-negotiation objectives and capture the substance of the actual negotiations. The combined template failed to capture pre-negotiation objectives. As if those issues weren’t enough, the IG report further determined that contracting officers did not appropriately conduct price analyses. Specifically, the IG could not validate price reasonableness findings because contracting officers failed to identify what labor categories they compared rates to in existing comparison databases or provide another analysis of the source data.

GSA had provided a template with the following specific written instructions (“Migrations Instructions Sheet “) to vendors who were to combine current proposal price lists “Submit a copy of the Proposed Price List (PPL) and your awarded labor category descriptions. This document will serve to represent the pricing of the migrated Consolidated Schedule contract. It should consist of rates previously awarded under the single Schedule contract(s) only.

NOTE 1: This is NOT an opportunity to submit new pricing.

NOTE 2: If you have any labor categories that appear duplicative in the individual schedules, you will need to differentiate in this submission or remove.

This pricing exercise that the schedule holders had to provide did not provide for any opportunity for the vendor to support or assist in the determining of price reasonableness as the rates and categories were all accepted “as is” and no changes were discussed or made per these written instructions.

GSA concurred with the IG’s findings and has proposed corrective action that will impact all PSS holders:

  • Contracting officers for each migrated contract will reevaluate the award to ensure fair and reasonable pricing;
  • Review and revise negotiation templates as necessary; and
  • Provide guidance to contracting officers on reviewing labor categories and associated rates and documenting their actions.

As a result of this corrective action PSS holders may have to go through negotiations again, and possibly lower rates. Additionally, GSA may initiate post-award audits to determine if rates have been significantly overpriced. Since GSA is looking at all PSS awards, PSS holders should conduct an internal review themselves to see whether there are any issues with the awards they received. If they are, this proactive review can give the PSS awardee time to figure out how to respond to GSA.

Posted on Wednesday, March 29 2017 at 10:39 am by -

Ding-Dong, The Fair Pay & Safe Workplaces Witch is Dead

Ding-Dong, The Fair Pay & Safe Workplaces Witch is Dead By: Lawrence M. Prosen & Gunjan Talati

We’ve covered the Fair Pay & Safe Workplaces rule since it came out last summer. In a series of alerts (see here, here, and here) we told you specifics about the rule and what labor law violations contractors would have to disclose as a result of the rule. As we were covering the specifics, the rule suddenly found itself on life support when a Texas federal court enjoined several parts of the rule, including the disclosure requirements (see here). The court however left in place paycheck transparency requirements which required contractors to issue employees wage statements with details regarding wages.

As the rule lingered on life support, we told you on this blog that it wouldn’t be long until the end (see here). Well yesterday, the end came for Fair Pay & Safe Workplaces. Specifically, President Trump signed both a Congressional Review Act resolution as well as an executive order that rescinded the Fair Pay & Safe Workplaces Executive Order in its entirety. Accordingly, contractors no longer have to worry about either disclosing labor law violations or paycheck transparency. This repeal is welcome news to many contractors that believed the requirements would be burdensome and were worried about how implementation of the rule would be carried out.

Posted on Monday, March 20 2017 at 12:10 pm by -

OMB Claims Federal Progress on FISMA in 2016 But Much Work Remains

OMB Claims Federal Progress on FISMA in 2016 But Much Work Remains by Christian F. Henel

Earlier this week, the White House Office of Management and Budget (“OMB”) issued its 2016 Federal Information Security Modernization Act (“FISMA”) Annual Report. FISMA (last amended 2014) charges OMB with tracking the extent to which federal agencies are complying with FISMA’s core objective to secure the availability, confidentiality, and integrity of federal information.

This year’s FISMA Report had a number of key takeaways. First, OMB found that federal agencies continue to be the target of sophisticated and destructive cyber-attacks. According to the Report, over 30,899 cyber incidents in 2016 led to the compromise of information or system functionality within federal information systems. Of those, sixteen met the threshold for a “major incident,” which OMB defines as “a designation that triggers mandatory steps for agencies including reporting certain information to Congress.” The agencies sustaining major incidents were the U.S. Patent and Trademark Office, Departments of Health and Human Services, Housing and Urban Development, Treasury, and the Federal Deposit Insurance Corporation. Almost all involved the compromise of Personal Identifiable Information (“PII”) or Federal Taxpayer Information (“FTI”).

Second, the Report disclosed that many agencies made progress in developing their information security defense capabilities, with several exceeding their 2015 participation levels in the areas of Information Security Continuous Monitoring (“ISCM”), Identity, Credential and Access Management (“ICAM”), and Anti-Phishing and Malware Defense – by far the most significant increase of the three categories. In addition, OMB found that the vast majority of federal agencies developed and implemented policies and training around privacy requirements and accountability.

Third, the government’s overall progress in developing information security capabilities remains somewhat immature. The phrase “immature” is not our term – OMB commissioned a council of agency Inspectors General (“IG”) to assign the federal government one of five levels of “maturity” for each of five cybersecurity framework function areas (identify, protect, detect, respond and recover). The IGs issued a government-wide score of 2 out of 5:


The Report also includes individualized reports for each federal agency.

Finally, the Report touched on information security spending by fiscal agencies. DHS topped the list at nearly $1.3 Billion and the median spend was just over $81 million. Our read of the numbers suggest that contractors can expect to see the highest priority emphasis on cybersecurity and cybersecurity compliance within DoD, NASA, DHS, HHS, DOT, DOS and the VA. To close with a word of caution – regardless of how much (or how little) an agency appears to have committed to cybersecurity, contractors can expect agencies accountable to the President and Congress to hold contractors strictly responsible for information and data lost “on their watch.”

Posted on Monday, March 13 2017 at 3:27 pm by -

The Past is Prologue: Current Trends in Government Contract Spending Over the Past Five Years – GAO Issues Trend Analysis Report

The Past is Prologue: Current Trends in Government Contract Spending Over the Past Five Years – GAO Issues Trend Analysis Report By Lawrence M. Prosen, Partner, Kilpatrick Townsend & Stockton LLP

In its March 9, 2017 report entitled, “Contracting Data Analysis – Assessment of Government-Wide Trends”, GAO No. GAO-17-244SP[i] (the “Report”), GAO has found that defense obligations for products and services decreased by a remarkable thirty-one percent (31%) between FYs 2011 and 2015. This drop from $399 billion to $274 billion on the defense side ran in significant contrast to civilian side obligations, which remained relatively flat over the same duration. As depicted in the following chart, included in the Report, the light blue columns on the left show the dramatic reduction in defense spending versus the dark blue columns on the right which show a relatively consistent, flat curve.

Figure 1: Defense and Civilian Agency Obligation on Contracts, Fiscal Years 2011-2016


A.  Contract Type

Some of the more significant and interesting highlights from the Report, includes the fact that federal agencies continued to use fixed price contracts (as opposed to cost plus or Time and Materials (“T&M”)) between 2011 and 2015 for an average of sixty-three percent (63%) of the obligations. Fixed price contracts are the preferred contract vehicle, in comparison with T&M or cost plus contracts, as they fix the government’s liability and give the agency a “known” cost up front (subject to changes and claims of course).

When averaging the defense and civilian sides, GAO concluded that while federal agencies acquired roughly $438 billion in products and services in FY 2015, this represented a nearly 24% reduction from FY 2011 spending. Much of this reduction arose due to the 2013 FY sequestration issues arising from the dispute between the Obama Administration and Congress on passing a budget.


What is not clear from this data is the type of firm fixed price contracting used, e.g., sealed bid, best value (including low cost, technically acceptable (“LCTA”), and other types of negotiated procurement on the best value continuum). There is also little discussion on the recent expansion in the use of LCTA contracts, as well as the more recent push by congress to limit the use of LCTAs.

B.  Outsourcing of Work

Another significant datapoint in the GAO report was the level of use of services contracts in which the government outsources work, particularly technical work, to outside vendors. For example, professional support services were the largest spending category for both defense and civilian agencies, representing approximately 51% and 60%, respectively, as a percentage of overall obligations. On the DoD side, the Army and Air Force were responsible for over 60% of DoD’s service contract spending while the Departments of Energy, Health & Human Services, NASA, Homeland Security and Veteran’s Affairs each obligated over $10 billion in spending on service-related contracts.

This heightened spending on services continues a trend we have observed relating in no small part to attrition of qualified, experienced government personnel due to retirement. The baby boomers are leaving government and leaving a significant void that is difficult to fill. In lieu of replacing those mid- and high-level personnel, the Government has either hired low-level replacements from the realm of universities or gone to outside service providers, namely professional services organizations and contractors. On the former, these individuals often lack the knowledge and experience to perform the work of those they are replacing or do not have the necessary warrant of authority to bind the government. As for the latter, in addition to the budgetary issues associated with such outsourcing, we also have the issue of contract personnel approaching, and possibly even performing, inherently governmental functions. For example, on numerous contracts in which we have participated we’ve seen a Contracting Officer with little knowledge of the contract in question or understanding of how that contract is to be performed being forced to rely on outside contractors to perform analyses and “draft” decisions for the Contracting Officer on, by way of example, change orders and decision documents arising from claims. This is not the way the government contracting system was devised, but it the way it has developed. This raises real questions in today’s world and will no doubt have future impacts on contracts and disputes.

C.  Limitations on Competition – Other Than Full & Open Competition

Another significant trend is the fact that agencies continue to make significant awards, particularly at the DoD, through non-competitive means. During the 2011-2015 time period, DoD reduced its rate of competition from roughly 58 to 55%. This was viewed by GAO as arising predominantly from major weapons systems acquisitions where competition is not necessarily economically reasonable given the long lifecycle of such systems. In contrast, civilian agencies competed roughly 80% of their total contracts for products and services in FY 2015, up from 76% in 2011. That being said, concerns arising from sole source and other than full and open competition procurements continue to exist. GAO has repeatedly raised issues about the lack of open competition, including agencies using urgent and compelling basis for such noncompetitive awards without adequate justification. See e.g., GAO Report Nos. GAO-14-204; GAO-10-833; GAO-13-325.

D.  Small Business Participation & Goals Met

Interestingly, the government generally met its small business set aside and participation goals. Most agencies met or exceeded those goals for FY 2015 and overall small businesses received almost $100 billion in contract obligations in that fiscal year. While an excellent result, we continue to see concerns arising from the small business realm. With the opportunities presented for small businesses to gain access to limited competition and sole source set aside contracts also comes the opportunity for fraud and abuse. The Obama Administration made it a mission to root out such fraud and abuse, with a seemingly endless number of news reports on False Claims Act (“FCA”) and debarment efforts being brought against small business which abused the rules and large businesses attempting to use shams or other efforts to improperly gain access to those set asides. One need look no further than the news to see that there were a number of high profile reports under the Obama regime in which large businesses under state and local contracts with small business participation goals tied to federal grant monies were found guilty of civil and criminal FCA violations. How the Trump administration addresses this issue will be of significant interest to the government contracts world at large.

E.  IDIQ Contract Usage

While the Report contains many other interesting facts and findings, the last to be discussed herein is the significant uptick in agencies using IDIQ (Indefinite Delivery, Indefinite Quantity) contracts to deliver services and products. Under an IDIQ contract, the Agency “prequalifies” or preselects a limited range of offerors who are later awarded sole source or, through limited completion of those prequalified, task or job orders for work. GAO found that, between 2011 and 2015, federal agencies obligated almost two-thirds of total contract obligations via fixed price contracts versus the remaining one-third being cost-type contracts. GAO found that in the realm of IDIQ contracts, roughly half of all contracts awarded were through those vehicles. We have seen this trend continue to increase, with more and more contracts awarded as an “umbrella” IDIQ and then task orders or work orders issued under the overall contract. Given the recent issues with GAO losing and then regaining its bid protest jurisdiction on task order contracts, as well as Congress’s raising the floor from which task order protests can be filed at GAO, it appears clear that agencies are using IDIQ contracts to reduce the risk of being susceptible to bid protests, thereby reducing the “distraction” of having to litigate (at least at GAO) bid protests. While the law, the restriction on Task Order-based protests runs counter to the idea of due process and having administrative procedures to address procurement errors and mistakes.

F.  What Does The Future Hold?

What is the future trend? With the Trump administration, this question is the big one at hand in government contracting (as well as other areas no doubt). A lot remains to be seen, but Mr. Trump has already announced that he wants to significantly increase the DoD budget and also address the failing infrastructure in the U.S. If he is successful in either or both of these efforts, the downward curve on DoD spending and flat curve on Civilian Spending (at least as relates to Department of Transportation, the FAA and other related agencies) should see a significant increase or uptick. Whether this happens next year or well in the future remains to be seen. What is clear is that Agencies have a lot of work to do to meet their obligations, and while the current trends are in some flux, they must continue to meet their obligations under applicable laws and regulations.

[1] A copy of the report is available at

Posted on Wednesday, March 8 2017 at 9:29 am by -

Congress Considering CFIUS Reforms to Combat China’s Increased Investment in the U.S.

CONGRESS CONSIDERING CFIUS REFORMS TO COMBAT CHINA’S INCREASED INVESTMENT IN THE U.S. 3.6.17 by John Bergin and Gunjan Talati – Kilpatrick, Townsend & Stockton, LLP

Recent articles in the Wall Street Journal and the Washington Examiner indicate that Senate leaders from both parties are working to craft legislation that would reform the Committee on Foreign Investment in the United States (CFIUS). The potential legislation follows a sharp increase in Chinese investments in the U.S. Last year, Chinese investments in the U.S. skyrocketed from less than $20 billion to more than $50 billion. While Congressional concerns regarding national-security risks are nothing new, the possible changes to CFIUS appear more likely now than at any time since the underlying statute was overhauled nearly a decade ago.

Indeed, according to those articles, members of Congress are now drafting legislation to address those concerns. Senate Majority Whip John Cornyn (R-Tx.) is drafting legislation that would require CFIUS to use a classified list of “countries of concern” considered to be potential military threats to U.S. national-security interests and review sales of U.S. property to those countries with increased scrutiny. That proposed bill would also expand reviewable transactions to include those involving joint ventures and property near military bases.

Similarly, those reports also state that Senate Minority Leader Chuck Schumer (D-NY) is preparing a broader proposal that would require CFIUS to consider economic factors when reviewing foreign investments, a fundamental expansion of CFIUS’s national-security mandate. More specifically, Senator Schumer’s bill would require CFIUS to be stricter on deals causing potential economic harm. Senator Schumer is also reportedly looking at legislation aimed at pushing China to lift the current restrictions on U.S. access to the Chinese market.

None of the proposals have been offered as legislation yet but clearly signal that CFIUS will undoubtedly soon undergo significant changes impacting companies both in the U.S. and China.

So what does this mean if you have a cross-border transaction with Chinese investments into the U.S.?

  • Strongly consider making a CFIUS filing;
  • Make sure your CFIUS filing addresses any potential concerns specific to the transaction. Your counsel should have an idea of those areas from pre-filing meetings and communications with CFIUS; and
  • Plan for CFIUS to need the full time allowed by CFIUS regulations and for possibly the President to ultimately decide on the transaction. Build this time into your acquisition planning.
Posted on Tuesday, March 7 2017 at 1:43 pm by -

A Quicker Death for the Proposed Fair Pay and Safe Workplaces Regulations?

A Quicker Death for the Proposed Fair Pay and Safe Workplaces Regulations? by Lawrence M. Prosen

Since they were announced, the Fair Pay and Safe Workplaces Executive Order and following regulations have elicited strong feelings from contractors resulting in an ongoing battle between Government and industry. Initiated in 2014 when the Obama Administration issued Executive Order 13673 (the “E.O.”), Fair Pay and Safe Workplaces imposes requirements that government contractors, among other things, self-report certain labor law violations. Last summer, the Federal Regulatory Council and the Department of Labor issued a final rule and guidance implementing the E.O. which was scheduled go into effect towards the end of 2017. We provided specifics in a series of alerts beginning with this one. As contractors were wading through the hundreds of pages of regulations and trying to learn their obligations, a federal court enjoined substantial parts of the final rule including those pertaining to self-reporting labor law violations. Already dealt a heavy blow by the injunction, Congress under the new Trump Administration, is now poised to kill it.

On February 2, 2017, the U.S. House of Representatives passed and submitted to the Senate a proposed joint resolution which disapproves of the Rule and seeks to rescind it. H.J. Res. 37. This joint resolution, which passed in the Senate on March 6, states that “…Congress disapproves the rule submitted by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation…, and such rule shall have no force or effect.” In summary, if the President signs the resolution, Congress and President will effectively kill the Fair Pay and Safe Workplaces final rule and the underlying E.O.

This Senate vote received significant attention from businesses across the United States. Perhaps their concerns were best summarized in a March 2, 2017 U.S. Chamber of Commerce issued a “Key Vote Alert!”, in which the Chamber supports the Resolution and rejection of the Rule. Utilizing the “blacklisting” badge, the Chamber points out the problems, burdens and lack of sufficient need for the Rule, including the Rule creating a “guilty until proven innocent” posture; overly broad definition of the term “violations” and the perception that this Rule places not only an undue burden on businesses but also as pro-Organized Labor.

At this point in time, it appears almost certain that the President will sign the Joint Resolution and the days of the labor Blacklisting Rule will end. Only time will tell for sure.


Posted on Monday, March 6 2017 at 1:46 pm by -

NIST in the House – Empowering the Nation’s Cybersecurity Standards-Maker To Head Off Increasing Cyber Threats to the Government and Its Contractors.

NIST in the House – Empowering the Nation’s Cybersecurity Standards-Maker To Head Off Increasing Cyber Threats to the Government and Its Contractors by Christian Henel and Gunjan Talati.

The National Institute of Standards and Technology (NIST) recently received a vote of confidence in the U.S. House of Representatives that may increase its role and authority in defending the nation from cyber threats. On March 1, 2017, the House Committee on Science, Space and Technology approved the NIST Cybersecurity Framework, Assessment and Auditing Act of 2017 for submission to the broader House of Representatives. The Act proposes to amend the National Institute of Standards and Technology Act “to implement a framework, assessment, and audits for improving United States cybersecurity.” If passed, the Act would empower NIST to assess and audit and report to Congress regarding federal agencies’ cybersecurity defense capabilities. It also calls for NIST to submit to OMB guidance that would promote the incorporation of the NIST’s sweeping framework of cybersecurity controls, best practices, and procedures into all federal agencies’ existing cybersecurity practices for all federal agencies. Up until now, NIST has been toiling away on its framework while individual agencies picked and chose which aspects to incorporate into their cybersecurity regulations and contract clauses. The proposed law contemplates a more uniform approach.

Upgrading NIST from an advisory role to more of a regulator/auditor role could bring the federal government closer to effectively deploying uniform government-wide cybersecurity control standards. It might even reduce some of GAO’s concerns, echoed in its most recent iteration of the high risk list – that agencies have been sluggish in addressing even the severe cybersecurity risks they face. From a contractor’s perspective, uniformally implementing NIST will ideally provide predictability for contractors trying to understand in plain English the cybersecurity requirements that apply to their contracts. For now though, contractors must continue to navigate the patchwork of regulations across agencies that intermittently invoke NIST’s publications but leave many questions about implementation and compliance unanswered.

Readers interested in additional background and information on NIST and federal cybersecurity requirements in general may want to consider attending the authors’ presentation: “How to Prepare and Respond to a Data Breach” presented as part of Federal Publications Seminars’ “Government Contracts Week”, May 9-12, 2017 in La Jolla, California.

Posted on Thursday, March 2 2017 at 9:56 am by -

DoD Issues New FAQs on Cybersecurity Compliance

DoD Issues New FAQs on Cybersecurity Compliance by Christian Henel

Although DoD remains on the cutting edge of cybersecurity protections in the government contracts world, it continues to hone and refine that edge. Recently, DoD issued an updated frequently asked questions (FAQ) page for DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting. The new FAQs addresses many, but not all of the types of questions many contractors found themselves asking after the October 21, 2016 final rule came out. Key clarifications in the FAQ include:

  • Clarifying which version of the clause applies to contracts that have been in-performance while the clause undertook several revisions
  • Reinforcing the scope and strength of flow-down requirements (i.e., “if a subcontractor does not agree to comply with the terms of [the clause], then covered defense information [“CDI”] should not be on that subcontractor’s information system”)
  • Explaining the relationship between CDI and information included in the National Archives and Record Administration (“NARA”) controlled unclassified information (“CUI”) program and the circumstances under which certain classes of data (e.g., export control data) may be considered CDI
  • Elaborating on DoD’s procedures for granting a variance from required NIST 800-171 controls

The FAQs also dedicates several questions specifically to the implementation of NIST 800-171 controls, discusses how DoD may evaluate an offerors’ compliance with the DFARS clause and NIST 800-171 during the source selection process, and offers some guidelines for small businesses facing the new requirements with limited resources. While the FAQs themselves do not have the force of a law or regulation, they provide a good indication of how DoD agencies intend to administer the clause, and contractors can rely on the FAQs to get a sense of how DoD expects them to comply. Contractors should keep in mind, though, that this is at least the third version of the FAQs, and they may change again.


Posted on Wednesday, March 1 2017 at 12:39 pm by -

“Regulatory Reform” to Change Government Contracting?

“Regulatory Reform” to Change Government Contracting? by Gunjan Talati and Christian Henel

On Friday, February 24, 2017, President Trump issued an Executive Order aimed at reducing burdensome regulations. Pursuant to the E.O., agencies will be required to create teams that will “research all regulations that are unnecessary, burdensome and harmful to the economy” and make recommendations as to which ones should be repealed or simplified.

Now anyone in business can tell you that there are plenty of regulations covering just about every topic. (There even used to be regulations about extraterrestrial contact but those have since been taken off the books.) Government contracting is no exception. In fact, government contracts are almost entirely run by the Federal Acquisition Regulation (“FAR”) at 48 C.F.R. While President Trump’s comments were not limited solely to government contractors, it’s almost a given that the reforms President Trump seeks will impact the FAR. The questions are how and to what extent?

Looking into our crystal ball, we see a few areas that could be targeted by agencies:

  • E.O. 13673 – Fair Pay and Safe Workplaces. This Obama administration executive order requires certain prime contractors and subcontractors to: (a) disclose previous labor law violations in the Government’s System for Award Management (“SAM”); (b) provide enhanced wage statements to employees to achieve paycheck transparency; and (c) eliminate pre-dispute agreements requiring employees to arbitrate civil rights, sexual assault and harassment claims. On October 24, 2016, the United States District Court for the Eastern District of Texas preliminarily enjoined the Government from implementing most of the order and its 800 pages of implementing regulations and guidance. The current legal controversy, along with the perception by many that the order is burdensome, makes this one a prime candidate for repeal.
  • E.O. 13706 – Establishing Paid Sick Leave for Federal Contractors. This executive order requires prime contractors and subcontractors to provide minimum paid sick leave to employees to be used for a variety of DOL-approved reasons. Even contractors who already provide the minimum required leave may face hurdles adapting their payroll systems to track accrual and other DOL-required procedures, not to mention reporting requirements. The fact that DOL’s final rule is less than six months old may make this order more vulnerable to elimination than more entrenched regulations.
  • Acquisition Planning – Prior to issuing a solicitation, existing regulations require that agencies conduct market research and consider many variables, such as (a) the sources available (including small and disadvantaged business sources), (b) the appropriate contract vehicle; (c) the extent to which the requirements can be met using commercial or commercially available off the shelf (“COTS”) items; and (d) the extent to which the acquired items promote social priorities such as energy conservation. These types of considerations together pull in thousands of pages of regulations. This is an area where we expect to see significant streamlining.
  • Acquisitions Under Trade Agreements: Given the President’s “America First” campaign slogan and promise to re-negotiate trade deals with other nations, we would not be surprised to see changes limiting and narrowing the scope of Buy American Act and Trade Agreements Act waivers. The theory goes that restricting such waivers would compel more contractors to source products in the United States, promoting American industries and jobs.

We will follow the Trump administration’s regulatory review closely and update our readers as events unfold.