Selected Acquisition Provisions in the Draft FY 2020 National Defense Authorization Act

Published: December 04, 2019

Federal Market AnalysisAcquisition ReformDEFENSEInformation TechnologyNational Defense Authorization Act

Congress takes on software development, debriefing rights, and LPTA processes.

Despite the fact that the end of fiscal 2020’s first quarter is nearly here, work reconciling the House (H.R. 2500) and Senate (S. 1790) versions of the draft National Defense Authorization Act remains unfinished. The draft House NDAA contains a number of provisions pertaining to federal acquisitions that are expected to survive into the final version of the bill Congress sends to the President’s desk. These acquisition provisions could be important for some sectors of the federal contracting community.

Software Development

Congress has long taken an interest in improving software development for the Department of Defense in order to reduce costs and speed capability building. To that end there are two sections in H.R. 2500 deserving attention.

The first is Section 801, which directs DOD to establish two acquisition pathways for software: one for applications developed and deployed on commercial hardware and a second for software upgraded for DOD’s proprietary use, such as capabilities embedded in weapon systems. Section 801 requires that both types of software be developed rapidly, that they be tested using automated processes, and that they are subject to oversight by specifically designated software development program managers. Section 801 also rules that contract awards for software development cannot exceed $50M in value or be longer than one year in duration.

The language in Section 801 reinforces congressional pressure on DOD to use agile development practices, something that successive NDAAs have required. Section 801 also separates commercial from proprietary software development, which may make it easier for some contractors to compete. Contractors offering automated software testing facilities and capabilities could also see an uptick in available business opportunities at DOD if this provision makes it into the signed final NDAA.

Section 802 instructs DOD to develop a training program for procurement professionals and software developers who want to earn a certification in software development and software acquisition. Training is to focus on continuous software development and on helping acquisition personnel understand the two pathways—commercial and proprietary—outlined in Section 801. Section 802 seeks to create the expertise needed across DOD to realize the vision outlined in Section 801. Business opportunities could result from the need to train acquisition personnel and/or augment government procurement personnel with contracted employees.

Debriefing Rights and Lowest Price, Technically Acceptable Source Selection Procedures

Modifying previous regulations in the FY 2018 NDAA, Section 828 lowers the threshold for enhanced post-award debriefing rights from awards valued at $100M to those valued at $50M. Industry will be happy to know that debriefings must include written source selection award determination notes, and that written or oral debriefings must be provided for all contract awards and orders if they are requested. The enhanced rights are expected to benefit particularly the small and mid-sized businesses that are more likely to compete for contract awards below the $100M threshold.

Lastly, Section 829 requires the GSA to standardize data collection and reporting on the use of lowest price technically acceptable (LPTA) contracting methods and best value contracting methods for all applicable contracting actions, including task orders and delivery orders. Ensuring that agencies use LPTA properly for non-technical requirements has been an ongoing concern in Congress for years. This latest requirement represents an additional effort to address contractor concerns about the inappropriate use of LPTA for complex requirements.