ASA Offers Comments to the FY22 NDAA

ASA, along with the Construction Industry Procurement Coalition (CIPC), offered comments to the House and Senate Armed Services’ Committee Leadership highlighting our views regarding the FY22 National Defense Authorization Act (NDAA).  We support the Defense Department submitting a report on the Cybersecurity Maturity Model Certification (CMMC) on small businesses.  CMMC is one of the most ambitious cybersecurity compliance requirements ever undertaken by the department.  The program is designed to be a mandatory requirement on all defense contracts.  The potential of excluding a significant portion of small business defense contractors and the ability for agencies and prime contractors to meet small business goals should be evaluated and reported to Congress and the public.  Additionally we supported the exemption of the Miller Act from the periodic indexing required under Title 41.  The Miller Act currently requires all general contractors on federal construction projects over $150,000 to furnish surety bonds to protect the government’s use of taxpayer funds and to ensure payments to subcontractors, and suppliers.  Any increase in the contract price threshold through indexing exposes workers, suppliers, and taxpayer dollars to unnecessary risk.

We opposed the bill’s section regarding new and onerous requirements for military construction contractors which goes against decades of federal contracting policies and precedent, including requiring all contractors and subcontractors performing a military construction contract be licensed in the state where the work will be performed and issuing local hiring preferences. Per our comments, “this section will severely restrict military construction contractors to perform work, leading to an exodus from the industry and jeopardizing critical military infrastructure projects.” Additionally, we opposed the provision repealing section 829 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), which states that a contracting officer shall first consider the use of fixed-price contracts in the determination of contract type. For architect/engineering services contracts, with well-defined scopes of work and clear deliverables identified, fair and reasonable costs of services can be negotiated. This makes fixed-price contracts more efficient for all parties. When the contractor and agency know and agree on a bottom-line cost and deliverables schedule for a well-defined scope of work, contract administration, accounting, and billing are simplified. This reduces associated overhead costs and time impacts. Agency flexibility to use the most effective and efficient contract type should be preserved.