National Association of Government Contractors

Senate Version of NDAA Returns to House

In mid-September, the version of the 2018 National Defense Authorization Act ("NDAA") the Senate passed was 1,266 pages long, leaving the House conference work to do to resolve the bill with previous version.

The version sent back to the House had already been through negotiations -- nearly 600 proposed amendments were reduced to the 50 that actually made it into the final Senate version.

Of the changes made by the Senate, these are four likely components of the bill that may ultimately be passed -- that will impact government contractors.

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.

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.

GAO Bid Protests

The NDAA could 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 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.

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.

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.

While a final version of the NDAA has not emerged, it is expected that it would include similar provisions.

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