4 changes in the NDAA that contractors need to know

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The version of the NDAA the Senate passed and sent back to the House for approval last week was 1,266 pages long. That’s after lawmakers whittled down the nearly 600 proposed amendments to the 50 that actually made it into the final version. Luckily for contractors, David Berteau, president and CEO of the Professional Services Council, has narrowed all that down to four essential things they need to know.

Workplace Safety and Accountability

One provision in the NDAA would require contracting officers to take a vendor’s Occupational Safety and Health Administration violations into account during the contracting process. The contracting officer would have discretion on whether to suspend or debar vendors who have OSHA violations on their records.

“When I was in the government, this was a bit of a burden that contracting officers felt like this wasn’t really their job; somebody else should be doing the law enforcement and investigation side. They should be enforcing the results. This turns that on its head,” Berteau told Jared Serbu on the Federal Drive with Tom Temin.

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This is the second recent attempt to put this responsibility on contracting officers. Industry fought against similar provisions in the Fair Pay and Safe Workplaces Act in the latter half of 2016 before President Donald Trump’s administration killed the rule in March. Indeed, Berteau told Federal News Radio in August 2016 that the executive order would have taken “the Labor Department’s responsibilities for determining compliance with labor laws and burdens the contracting officer with that enforcement responsibility.”

Berteau said these repeated attempts to shift this burden stem from bad, skewed data that alleges government contractors are worse at conforming to labor laws than other companies. But the reality, Berteau said, is that while there is plenty of data on government contractor compliance, there’s very little on the general population of the private sector.

GAO Bid Protests

Berteau said the NDAA would introduce a new mechanism that would require a company that files a bid protest and has all claims denied to reimburse the Defense Department.

“The presumption is that if you filed a protest, and you lose, you were unjustified in filing that protest in the first place. A lot of our evidence is that that’s not the case,” Berteau said.

The last annual report on bid protests the Government Accountability Office sent to Congress, which covered 2016, said protestors had an effectiveness rate of 46 percent in terms of receiving remedial action, such as voluntary corrective action or GAO upholding the protest. Bereau said this indicates the value of the process and the ability of contractors to hold government accountable.

At the current moment, this is also the only way for contractors to find out more information about why they didn’t win, so they can adjust to be more competitive next time. That’s because the discovery process allows insight into government decisions. But the NDAA would address that as well.

A provision in the NDAA would require DoD to provide better debriefs to vendors after a contract has been awarded. The idea is to give contractors the same level of information they would obtain from a protest, but proactively. The hope is that this would reduce the number of protest bids that are filed by eliminating those filed solely for more information.

Defense Contracting Fraud

Currently, legislation requires contractors to certify that they haven’t been convicted of fraud, and requires DoD to consider that when awarding contracts. But the new provision would require DoD to consider even more information beyond just convictions, including indictments and settlements. And Berteau said many of these aren’t included in any database.

“If people have in fact committed fraud, there should be a determination as to whether to suspend or debar them,” Berteau said. “And if the government determines … that it’s still in the best interest of the government to contract with this entity, to document that. And those are very legitimate concerns. Our concern is that this report goes way beyond that and brings in a lot of material that is not particularly relevant.”

Background checks

Finally, the Senate’s version of the NDAA contains a provision that would split the responsibilities for background checks between the Office of Personnel Management and the DoD. That was not included in the House version, and is one of the many things lawmakers will have to reconcile before sending the bill to the President’s desk.

Last year, the NDAA required the DoD to report on how it would handle taking over some of these responsibilities from OPM. Berteau said that report is currently making its way around Congress, but has not yet been publicly released, and that it should really have a period for public comment and input before Congress moves to codify it.

“There’s no indication that the report lays out a path that is consistent with the senate bill language, and I think there’s some serious concerns about the timing and the splitting of this,” Berteau said. “Our view is that we really ought to have those reports, have the opportunity to have public comment and input to them, and to let the provisions flow from that.”