Defense bill includes changes to DOD procurement

AGC of America reports that last week the House of Representatives overwhelmingly (373-34) passed the National Defense Authorization Act for fiscal year 2017 (NDAA). The Senate followed by decisively passing (92-7) the defense bill. The NDAA contains a host of AGC-backed federal construction procurement provisions important to construction contractors.

The $618.7 billion bill is expected to be signed into law by the president before the year’s end.

Among the procurement wins for AGC and its members in the final legislation are:

  • A provision allowing construction contractors to protest non-Department of Defense (DOD) agency task order contracts above $25M before the General Accountability Office. The ability to protest such civilian agency task orders had expired in September;

  • Language enabling congressional oversight of DOD use of one-step design-build solicitations and inclusion of more than five teams on two-step design-build short lists; and

  • The exclusion of several harmful provisions, including a requirement for contractors to pay for GAO protests, a ban on DOD task order protests where an ombudsman is appointed, and a penalty disincentivizing DOD use of cost-type contracts.

The defense bill also includes many small business oriented-provisions. It requires the Small Business Administration (SBA) to improve its reporting requirements, requiring SBA to better track small business that are no longer small and to clarify prime contracting goals. Additionally, the report establishes a first-tier, small business subcontractor past performance pilot program.

Of note is that the defense bill does not include previous House and Senate provisions that would have put limitations on the Fair Pay and Safe Workplaces (Blacklisting) executive order. Given the election results, AGC has advocated for a more enduring and comprehensive approach to repealing that order through the Congressional Review Act (CRA). Under the CRA, Congress can repeal the executive order’s implementing rules in their entirety and make it very difficult for a future president to undertake a similar regulatory initiative.

AGC will continue to monitor the NDAA as it heads to the president’s desk to be signed into law, and will advocate for further reforms in the new Congress.

For more information, contact AGC of America’s Jordan Howard at 703.837.5368.