House Passes 2020 NDAA

On Friday, July 12, 2019, the U.S. House of Representatives passed its version of the 2020 National Defense Authorization Act.

While this passage may lead to an uncharacteristic political fight over appropriations, contractors will be watching whether the U.S. Senate and House bills ultimately agree upon the less politically-charged sections likely to impact their businesses.

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2020 NDAA to Create New Acquisition Pathways for DOD Software Contracts

The proposed National Defense Authorization Act for fiscal year 2020 introduces new pathways for certain Department of Defense software acquisitions. These proposed software acquisition pathways would be separate from the traditional Department of Defense acquisitions process, and contain sweeping streamlining functions, especially within their supervisory structure. If passed, this new pathway could have a significant effect on how defense agencies acquire software. 

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2020 NDAA: Contractors Supplying Technical Data to Receive Protection of Data Rights During Challenges, Again

The draft 2020 National Defense Authorization Act, if enacted, will revoke the government’s ability to exercise rights in technical data during a supplier’s challenge to the contracting officer’s decision as to the validity of the asserted “use or release restrictions” on that data. It would reinstate the previous safeguard afforded to data suppliers, allowing them to protect their valuable–and often irreplaceable–intellectual property rights unless and until the contracting officer’s decision to remove the restrictions is sustained.

Keep in mind, this is just a draft provision, as the Senate version of the 2020 NDAA doesn’t contain the provision discussed in this blog.

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SCOTUS Rules Proprietary Business Information Shielded from FOIA Disclosure

Many government contractors are familiar with FOIA requests, or requests made by individuals under the Freedom of Information Act for release of information in the federal government’s possession. In the recent case Food Marketing Institute v. Argus Leader Media, the U.S. Supreme Court held that commercial or financial information is “confidential” and cannot be disclosed under FOIA where it is treated as private by its owner and provided to the government under an assurance of privacy.

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SCOTUS Declines to Limit Agency Power

In a unanimous decision that read like a 5-4 vote, the Supreme Court handed down its decision in Kisor v. Wilke this week. All nine justices agreed that the case should be remanded to the lower court, but they expressed dramatically different reasoning.

What it means, essentially, is that for now courts will continue to defer to agencies’ reasonable interpretation of their own regulations. For contractors facing off against agencies, it means that the agencies still have the upper hand—however, SCOTUS did try to limit it some.

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2020 NDAA to Add Cybersecurity Training, Additional SBA Annual Reporting, and Promote Workforce Development

The draft 2020 National Defense Authorization Act includes a number of provisions that will affect government contractors, especially small business contractors, including the three provisions featured in this post. Read on for how the 2020 draft NDAA impacts annual small business reporting by the SBA, cybersecurity training for small businesses, and evaluation of past performance to focus on workforce development.

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2020 NDAA: Subcontractors May Be Allowed to Take Non-Payment Allegations to OSDBU

The draft 2020 National Defense Authorization Act includes a dispute process for subcontractors when the prime contractor fails to pay.

Section 831 of the draft bill would amend the Small Business Act to allow subcontractors to report nonpayment to the Office of Small and Disadvantaged Business Utilization.

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