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Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, host Rob Sneckenberg interviews Senior Counsel Mark Ries about the nuanced procedural and substantive considerations for protests involving classified information. Mark is a retired Army JAG with extensive experience litigating all manner of protests and claims, including those in the classified arena.

You can find the materials discussed in this episode here.

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On April 2, 2018, the Government Accountability Office (GAO) published Final Rule 83 FR 13817, amending its bid protest regulations to implement the Electronic Protest Docketing System, make administrative and clerical changes, and “streamline the bid protest process.”

This Final Rule goes into effect on May 1, 2018.  We detail below some key changes it implements to the protest process.

Continue Reading GAO Implements Changes to Bid Protest Process with New Regulations

This week’s episode covers army modernization, whistleblower reprisal, sentencing in procurement fraud cases, and other updates, and is hosted by partner David Robbins and senior counsel Mark Ries. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

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On April 15, 2016, the Acting Secretary of the Army issued Army Directive 2016-16 (Changing Management Behavior: Every Dollar Counts) stating that the Army will “eliminate ‘use or lose’ funding practices,” i.e., “commanders and staffs will not automatically decrement commands or programs in future allotments when they do not spend all funds without further investigation to evaluate the reason for the under-execution and determine if it was a onetime event or funding adjustments are needed.”  Although a stated goal of the policy is to “allow[] [the Army organizations] to keep and redirect savings to validated command priorities,” Congress still appropriates funding on a “use or lose” basis and any annual funds not obligated by the end of the year will continue to expire despite the new Army policy.

 

On January 14, 2016, the U.S. Department of Defense (DoD) issued Directive 4715.21 to organize comprehensive agency-wide action to address and mitigate the risks of climate change on U.S. military assets and operations. The Directive implements for DoD the requirement established by Executive Order 13653 (Preparing the United States for the Impacts of Climate Change) that each federal agency develop and institute policies designed to improve climate resilience. It also follows several DoD reports and assessments of the military’s 7,000 bases, installations and facilities that found that climate change poses a present security threat.

The Directive states that to maintain an effective military, DoD “must be able to adapt current and future operations to address the impacts of climate change” and must do so by (1) identifying the effects of climate change on DoD’s mission, (2) taking those effects into consideration when developing plans and implementing procedures, and (3) anticipating and managing climate change risks.
The Directive establishes and assigns responsibilities for integrating climate change considerations into DoD planning throughout the Office of the Secretary of Defense (OSD). The Undersecretary of Defense for Acquisition, Technology and Logistics (USD(AT&L)) is charged with control and management of overall DoD climate risk policy and the management of climate-related risks. Under the oversight of the USD(AT&L), among others:

  • The Assistant Secretary of Defense for Energy, Installations and Environment (ASD(EI&E)) will serve as the primary DoD adaptation official, and have responsibility for inter-agency coordination and providing guidance and direction on relevant technologies, standards and approaches.

    The Assistant Secretary of Defense for Logistics and Materiel (ASD(L&MR)) will have responsibility for considering climate change risks posed to logistics infrastructure, materiel acquisition and supply, and transportation modes.

    The Assistant Secretary of Defense for Acquisition (ASD(A)) will oversee integration, in accordance with DoDD 5000.01 and DoDI 5000.02, of climate change considerations – including greenhouse gas and lifecycle analyses, in (i) DoD acquisitions of weapon systems, platforms, equipment, and products, (ii) acquisition strategies, and (iii) defense acquisition workforce training and education.

    In addition, the twelve OSD offices along with DoD Component Heads, the Chairman of the Joint Chiefs of Staff, and the Combatant Commanders, are charged with: integrating climate change considerations into DoD policy, guidance, plans and operations; assessing and managing risks to infrastructure (e.g. construction, asset management, utility systems), capabilities and capacity (e.g. force structure, basing, military operations, stability); managing vulnerabilities to acquisition and supply chains, and integrating resource considerations and cost management, including life-cycle costs, into DoD plans, business processes, material management, acquisition strategies, and all associated investment and risk management processes at “all relevant levels” within the DoD.

    While the Directive provides broad, top-level climate change policy, it is likely that there will be multiple new or modified policies, standards, guidelines and DoD regulations to implement the broad policies into practice. As with so much federal policy today, government contractors will be on the front lines of implementation. Consequently, in the coming months there are a variety of questions that may be answered, including:

    • When will DoD contracting activities begin adding climate change considerations into evaluation criteria? How will DoD measure such climate change considerations in competitive acquisitions?

    • When will DoD implement the climate change policy in the Defense Federal Acquisition Regulation Supplement (DFARS)? What shape will the DFARS implementation take?

    • What impact will the Directive have on existing DoD contracts and programs?

    • How widely will DoD require considering, monitoring, and reporting on greenhouse gas emissions and lifecycle impacts? To what extent will contractors be required to measure and mitigate climate change risks?

    • Will all energy-related infrastructure, or transport modes and equipment, be evaluated based on long-term climate resilience metrics?

    • Will additional energy and fuel usage requirements be imposed on contract awardees?

    • What opportunities exist for contractors to shape the answers to these questions? What new risks do contractors face from the Directive and forthcoming implementation efforts?

    As DoD continues to build energy and environmental considerations into its operations and acquisitions, we are available to assist our clients to take advantage of these new opportunities and to navigate and mitigate the associated risks.

In an August 3 letter to the White House, four trade associations (the AIA, PSC, NDIA, and ITIC) requested “on behalf of the thousands of companies … that no further presidential directives primarily focused on government contractors be issued for the foreseeable future.”  The letter (linked here) cited a dozen recent executive orders related to procurement that have resulted in a significant increase in the cost of doing business with the government, including the recent one on “Fair Pay and Safe Workplaces” (discussed here), and urged the Administration to address the “impacts, inefficiencies, and in many cases, unintended consequences” created by the recent deluge of EOs directed at government contractors.