Mitchell A Bashur is an Associate in Holland & Knight's Tysons office
The U.S. Department of Defense (DoD) recently issued several rules proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS). These rules include: (1) a proposed new DFARS clause related to Antiterrorism Training; (2) removal of a limitation in the design-build selection process; and (3) seeking early engagement on the regulatory implementation of the 2019 National Defense Authorization Act (NDAA).
New Requirement for Antiterrorism Training
DoD is proposing to amend the DFARS to require contractors to complete Level I antiterrorism awareness training. The proposal adds a new DFARS clause that will implement the requirements provided in DoD Instructions O-2000.16, Volume 1, DoD Antiterrorism Program Implementation. This clause will ensure that contractor employees who require routine physical access to a federally-controlled facility or military installation receive training. Routine physical access will be defined to include employees who are required to obtain a Common Access Card. The training is required to be completed within 30 days of requiring access and completed annually afterwards. The training includes understanding the terrorist threat, how to lower vulnerability, how to respond to threat action and how to support unit security.
Importantly, the new clause is proposed to be applicable to contracts below the simplified acquisition threshold and to contracts for commercial items. The clause will also be added to the list of contracts clauses applicable to the acquisitions of commercial items. The requirements will be required to be flowed down in all subcontracts. DoD estimates that the training time will be approximately two hours per year.
Elimination of Restriction on Design-Build Selection Procedures
DoD is proposing to amend the DFARS provisions governing the design-build contract selection process in accordance with Section 823 of the 2018 NDAA. This section changes the relevant statute to allow for more than five offerors to proceed to the second phase of a two-phase design-build selection procedure for contracts that exceed $4 million, so long as the contract is an Indefinite Delivery Indefinite Quantity (IDIQ) contract. Prior to these changes, for contracts over $4 million, the contracting officer was required to provide a justification to be approved by the head of the contracting activity before the government could select five offerors to submit phase-two proposals. The regulation proposes to add a new DFARS section 236.303-1(a)(4) to be used in lieu of FAR 36.303-1(a)(4).
The number of offerors allowed for phase-two proposals remains at the contracting officer's discretion when the contract value does not exceed $4 million. In FY 2017, there were approximately 499 new awards for construction contracts exceeding $4 million (include IDIQ contracts, purchase orders and orders under basic ordering agreements). Out of these 499 contracts, 305 awards were made to small businesses. DoD states that the new rule may create additional opportunities for small businesses because it allows more offerors to be chosen to submit proposals for phase-two.
Opportunity to Provide Early Input on Implementation of the FY 2019 NDAA
DoD is seeking early engagement regarding the implementation of the 2019 NDAA as it relates to the DFARS. The public is invited to submit early input on sections of the 2019 NDAA through the Defense Acquisition Regulation System (DARS) website. The early engagement does not replace the rulemaking process, so DARS will still engage in the rulemaking process in order to implement those sections of the 2019 NDAA impacting the acquisition regulations.
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